In this long-running matter, McCabes was recently successful in overturning a finding that its client, ALDI, had breached its duty of care to the plaintiff by failing to provide a warning that an automatic entrance gate to its store was not operating correctly.
The ACT Court of Appeal also upheld the Supreme Court’s decision that the plaintiff had failed to adduce sufficient evidence to establish that ALDI’s alleged breach was causative of her injuries.
Jenny Korda claimed damages for injuries she sustained at ALDI Canberra Centre on 19 December 2013, when an automatic entry gate did not open instantly, and her trolley collided with the gate, being forced heavily back onto her left shin.
Earlier that day the first of the two entrance gates had been malfunctioning and was fixed open. The second gate however was still operational.
Magistrates Court decision
At first instance, the Magistrate found in favour of Ms Korda awarding damages of just over $112,000, which was reduced by 50% on account of her own contributory negligence in failing to wait for the gate to open.
The Magistrate noted that ALDI should have been aware of the possibility of the gate malfunctioning and taken precautions to warn shoppers by erecting a warning sign. His Honour did not identify the nature or content of the warning sign he considered ought to have been installed. Further, he did not outline how ALDI’s failure to place such a sign was causative of the plaintiff’s accident. No evidence was led by the plaintiff as to how she would have reacted had she noticed any such sign.
Supreme Court decision
Ms Korda appealed the decision on the basis that the Magistrate erred in his assessment of contributory negligence. ALDI cross-appealed against the finding of breach of duty and causation.
His Honour Robinson AJ dismissed ALDI’s challenge to the finding of breach. He held that the failure to install a warning sign was not in error, given the evidence that ALDI’s staff had prior knowledge of the malfunctions with one of the gates, and taking this step was a reasonable precaution.
However, His Honour upheld ALDI’s appeal on the finding of causation. He held that the Magistrate was in error in finding (without providing any reasons) that the evidence proved the accident would not have occurred had a warning sign been installed. The plaintiff led no evidence that she would have noticed a warning sign, given her evidence was that her attention was on the store shelves whilst she approached the gates.
Whilst not necessary to decide, His Honour would have reduced contributory negligence down to 20%.
Ms Korda again appealed, on both the causation finding and contributory negligence. ALDI again cross-appealed with respect to the finding of breach.
Court of Appeal decision
The Court (Burns, Mossop and Bromwich JJ) unanimously rejected Ms Korda’s challenge to the findings of Robinson AJ on causation.
Their Honours noted that section 45 of the Civil Law (Wrongs) Act required Ms Korda to have proven on the balance of probabilities that the installation and utilisation of a warning sign would have caused her to alter her actions, thereby avoiding the accident. The plaintiff gave no such evidence at trial.
The Court agreed with ALDI that there was no evidence as to the nature, content or placement of the ‘warning sign’ that was alleged ought to have been erected and as such its impact could not be determined.
The Court also commented that the decision not to adduce evidence from Ms Korda about what she may have done, or how she could have reacted to a warning sign, was a forensic decision made at trial, as it was not Ms Korda’s primary case against ALDI.
With respect to ALDI’s appeal, the Court overturned the findings of the two lower courts that ALDI had breached the duty of care it owed to Ms Korda by failing to erect a warning sign.
Their Honours agreed with ALDI that the earlier decisions had wrongly placed too much emphasis on the fact that ALDI’s employees were aware there was a problem with one of the two entrance gates. In circumstances where there was no evidence of an issue with the second gate, their Honours reasoned ALDI would not have considered it necessary to install a warning sign, nor was its failure to do so unreasonable.
Relevantly, the Court also agreed with ALDI’s submissions that delays in sensor operated doors and gates opening was a reasonably well know and common occurrence, stating:
“…automatically opening doors and gates are not, even in this day and age, 100 per cent accurate in their capacity to detect an approaching entrant and hence, that some care needed to be exercised before proceeding through the gate”.
Accordingly, the Court was of the opinion ALDI was not under an obligation to warn entrants to wait until the gates had fully opened, or that the gate may not open immediately, as closed gates were an obvious obstacle to entering the store, readily apparent to an entrant.
In a win for common-sense, the Court of Appeal has confirmed that retailers are not liable for failing to warn its patrons of each and every single risk that they may face when shopping at their stores. To do so would create an unnecessary burden upon them.
As to the installation of warning signs, these only need to be installed where the retailer is aware of a clear danger or risk to its patrons, such as a spillage or contaminant upon the floor that is to be cleaned. It will not extend to common-place ‘hazards’ such as failing to wait for a sensor operated door/gate to fully open. These are ‘risks’ that people face every day.
The decision also highlights the importance of clearly establishing causation in the assessment of liability. It is not sufficient to show in isolation that a duty existed, was breached (though in this instance it was found not to be) and that loss or damage eventuated. A connection between the breach of the duty and the resulting damage must be made out.
This case also emphasises the consequences that may eventuate if a party fails to adduce sufficient evidence at first instance to support their case (in this matter on causation). The Court agreed with Robinson AJ that a failure to do so will not warrant remitter for re-trial or correction of first instance findings, and emphasised the importance of the elementary legal principle that a party is bound by the conduct of their case.