Woolworths Ltd v Ryder [2014] NSWCA 223

Background

Woolworths were sued by the respondent, Ryder (“Plaintiff”) in the NSW District Court for personal injuries sustained as a result of slipping on a soapy liquid in the common area of a shopping centre, adjacent to a Woolworth’s store.

The events captured on CCTV depicted a child at a checkout counter in the company of her parents and then emerging from Woolworths into a passageway between Woolworths and other retailers. The child was blowing bubbles and then glanced at the floor and rubbed the area with her feet. Shortly afterwards, the Plaintiff was seen to slip at the spot where the child had rubbed the floor with her feet. It was not in dispute that the soapy liquid found was spilt by the child.

First Instance

The trial judge held that Woolworths owed a duty to the Plaintiff to take reasonable care to prevent a danger being created by use of the products that it sold in its supermarket and that Woolworths had breached its duty by failing to warn the child’s parents against allowing the child to use the product in the common area. In arriving at his decision, the trial judge placed great weight on evidence as to a conversation between two Woolworths staff which suggested that an employee had opened the bottle of bubbles at the checkout.

Appeal

Woolworths appealed on three grounds:-

  1. That an admission had been made by one of its staff;
  2. That it owed a general duty to take reasonable care for the safety of people walking along the passageway; and
  3. That Woolworths had breached its duty of care.

First Ground

The Plaintiff’s evidence was that two Woolworths employees came to her assistance after she had fallen and that she heard a brief exchange between those two employees, to the effect of:-

Male Employee: “What’s happened here?

Female Employee: “It’s what we opened before for the lady with the pram.

The Court of Appeal held that the trial judge had misinterpreted the principle of Jones v Dunkel in that by Woolworths failing to call the female employee as a witness, an inference was permitted to be drawn that her evidence would have been adverse to Woolworths. His Honour Sackville AJA (in handing down the leading judgement) said that the correct application of the rule was that where a party is required to explain or contradict something and fails to call a witness in that regard, an inference may be drawn that the evidence would not have assisted that party.

In any event, the Court of Appeal said that the trial judge had erred in his finding that there was affirmative evidence of the female employee’s admission and that a Jones v Dunkel scenario therefore did not arise.

Second Ground

Sackville AJA noted that the duty formulated by the trial judge was not confined to dangers emanating from activities conducted in the supermarket or goods sold by the supermarket and would apply in relation to the acts of a person over who the supermarket has no control once that person exits the supermarket.

The Court rejected the trial judge’s finding that Woolworths owed a duty of care to take reasonable care for the safety of people in the passageway near its store. Sackville AJA said that there was “no basis in policy or principle for a duty of care of this breadth”. His Honour added that such a duty would “impose an intolerable burden of potential liability” as well as “impose extraordinarily onerous burdens on owners and occupiers of retail premises that go beyond concern for the interests of others which it is reasonable to require as a matter of legal obligation”.

Sackville AJA also noted that reasonable foresight of harm was not sufficient to impose a duty of care. The Court said that the proper application was:-

“…Woolworths, as the occupier of the supermarket premises, was under a duty to take reasonable care to avoid hazards that might injure its customers while on its premises. The owner or occupier of the [shopping centre] was under a similar duty to persons using the common area of the [shopping centre].”

Third Ground

As the Court of Appeal held that Woolworths did not owe a duty of care akin to that formulated by the trial Judge, it was not necessary to consider breach.

Implications

Obviously this decision is a good result for supermarket occupiers and retailers in that:-

  1. the duty owed does not extend to users traversing in the common area outside their stores;
  2. the duty does not to prevent customers using goods purchased at their shops in a way that has the potential to create a danger or hazard; and
  3. foreseeability of a danger materialising will not be sufficient to impose a duty upon the retailer.