In this Alert, Senior Associate Brooke Jacobs and Solicitor Elizabeth Harvey examine the recent decision of Woolworths Ltd v Ryder  NSWCA 223, in which the New South Wales Court of Appeal found that a supermarket in a shopping centre did not owe a duty of care to users of the common area adjacent to their premises, in circumstances where the relevant hazard had been created by a product purchased from and opened in the supermarket.
The plaintiff sustained injury when she slipped on a patch of soapy liquid and fell while in the common area of a shopping centre, just outside a Woolworths supermarket.
The soapy liquid had been spilt by a little girl blowing bubbles with a wand. Her parents had only moments before purchased the bottle of bubbles. It was alleged that a Woolworths cash register operator had opened the bottle of bubble mixture for the little girl.
The trial judge found in favour of the plaintiff on the basis of:
- a factually contentious “admission” by a Woolworths employee at the time of the incident that Woolworths’ employee had opened the bubbles and created the risk; and
- a finding that Woolworths owed a duty to users of the common area adjacent, which extended to refusing to open the bottle of bubbles and a duty to warn.
Woolworths appealed this decision. One of the key issues on appeal was whether Woolworths owed a duty of care in negligence to users of the common area.
The Court of Appeal held that Woolworths did not owe the plaintiff a duty of care.
The Court found that Woolworths’ duty of care did not extend to exercising reasonable care to prevent products it sells being used by customers in a manner that creates hazards outside of its premises. The Court noted that such a duty would pose an intolerable burden of potential liability on owners and occupiers of retail premises to not only control the actions of third parties, but to exercise control over premises outside of its sphere of responsibility.
- The duty owed by retailers does not extend to users of the common area adjacent to their premises.
- Retailers owe no duty to prevent customers from using products purchased from them in a way that creates a hazard.
- The case reiterates that reasonable foresight of harm is not sufficient to impose a duty of care. The Court of Appeal found that the trial judge erred by conflating the reasonable foreseeability of harm with the actual content of the duty of care owed by Woolworths.
- This case specifically considered a tortuous and not contractual duty of care. It is worth noting that the finding may well have been different if a contractual duty was owed.