In a recent decision of the ACT Court of Appeal, ALDI Foods Pty Ltd (ALDI) was successful in defending a claim for negligence made by a customer who suffered personal injury when her trolley collided with an automatic entrance gate, which did not open. Partner Robert Tidbury and Senior Associate, Janine Oberhardt discuss the recent decision Korda v Aldi Foods Pty Ltd  ACTCA 6.
On 19 December 2013, Ms Korda attempted to enter ALDI through the front entrance gate located at the front of the store. In order to enter, she had to go through two automatic gates operated by sensors. It was accepted that, on the day of the accident, the first gate was not working and had been disconnected and left open by ALDI staff. Ms Korda was still required to push her trolley through the second gate to gain entry to the store. As Ms Korda pushed her trolley towards the closed second gate, she was momentarily distracted by a display of biscuits located within the store. Expecting the gate to automatically open, she continued pushing her trolley. However, the gate failed to open and consequently, Ms Korda pushed the trolley into the gate, striking her left lower shin in the course of doing so. Ms Korda commenced a claim against ALDI alleging negligence for failing to provide an appropriate warning to entrants that the gates were not working correctly. At first instance, the ACT Magistrates Court found in favour of Ms Korda, finding ALDI was in breach of its duty of care. Ms Korda was awarded $56,054.93 in damages after the Court reduced her damages by 50% on account of contributory negligence.
Both Ms Korda and ALDI appealed to the ACT Supreme Court against the decision of the Magistrate. Ms Korda appealed against the finding that she was contributory negligent whilst ALDI appealed in relation to the finding of liability made against it.
The Supreme Court allowed the appeal made by ALDI on the basis that causation had not been established by the Plaintiff. However, the Court upheld the Magistrates finding against ALDI as to breach of duty. Ms Korda subsequently appealed to the Court of Appeal on two grounds: First, the finding in relation to causation; and secondly, that there should be no reduction on account of contributory negligence. ALDI filed a Notice of Contention in relation to the finding of breach of duty.
Court of Appeal Decision
ALDI was successful on Appeal. In relation to whether or not a warning sign should have been in position near the entry, the Court of Appeal examined whether ALDI, acting reasonably, ought to have been aware or was aware of any problems with the operation of the second gate. The Court of Appeal noted that whilst there was evidence that there were incidences with the second gate in the days leading up to the event, those incidences involved children playing with the gate or people doing things they shouldn’t have been doing. The Court of Appeal was not persuaded that this evidence demonstrated that the second gate was malfunctioning. In addition, evidence that suggested the gates did not open every time a customer approached was also considered. Again, the Court of Appeal found that this did not demonstrate any malfunction of the gate, but instead involved knowledge that the sensor operated gates only opened when the sensor is triggered and triggering of that sensor may not be 100% reliable.
In their decision, the Court of Appeal found that no warning sign was required, commenting as follows:
“Gates, like doors, are obvious obstacles The gate was a clear barrier to the entry of persons into the store. It would be apparent to entrants of the store that they could only do so if the gate opened or was open. Whilst users of the gates familiar with their operation would have an expectation that they would open automatically, they would also realise that 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”.
Ultimately, the Court dismissed Ms Korda’s appeal and upheld ALDI’s Notice of Contention.
Take away points
- In cases where a Plaintiff is alleging negligence on the basis of a defendant’s failure to warn, establishing causation is crucial. The evidential onus remains on the Plaintiff to establish that, had an appropriate warning been given, they would have acted differently, such that the accident would not have occurred. Here, the Plaintiff’s lack of evidence as to the appropriate warning that should have been provided and the difference it would have made to her behaviour on the day, proved to be a critical deficiency in her case.
- It is important to consider the facts carefully to determine exactly what risk a Plaintiff alleges the Defendant failed to warn against. In this case, the Court found that there was no malfunction of the gate. Therefore, the relevant risk was identified to be the gate not opening every time. When considering the risk in that context, the Court adopted a common sense approach finding that it was an obvious risk which did not require a specific warning. Had it been found that the gate was malfunctioning at the relevant time, there may have been a different finding in relation to breach of duty.
- The readiness of both the Magistrate and the Supreme Court to impose a significant reduction for Ms Korda’s own negligence, demonstrates that a Plaintiff’s failure to observe a hazard due to some minor distraction will not always be accepted by the court as conduct amounting to mere inadvertence or inattention so as to avoid a finding of contributory negligence.