The Plaintiff slipped over in a shopping centre as she did not see warning signs placed on the floor. She was unsuccessful in establishing liability as against the supermarket at trial. The Federal Court of Appeal had to determine if the supermarket took all reasonable precautions for the safety of patrons after the spillage had been identified and the warning signs erected.

The Full Federal Court handed down their decision in Fitzsimmons v Coles Supermarkets Australia Pty ltd [2013] FCA 273 on 29 August 2013, and the High Court refused special leave to appeal on 14 February 2014 in Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2014] HCA Trans 29,

Facts

The Plaintiff alleged she sustained lower back injuries and an injury to her right ankle in a fall at a Coles supermarket on 6 December 2009. A spill had been identified in the area of the fall and prior to the Plaintiff’s accident 1-3 wet floor warning signs had been erected in the area. An employee of the supermarket was fetching some paper towels to remove the spillage between the signs being erected and the Plaintiff’s fall.

The claimant said she was looking up at the aisles and signage to find the correct aisle as she was walking throughout the store. She indicated she was rushing to find her daughter a birthday cake. She was holding her daughter in her arms at the time of her fall. She did not see the wet floor signs prior to her accident. She was wearing thongs at the time, and there was some evidence she may have been arguing with her boyfriend at the time of her fall.

The Plaintiff failed in first instance in the New South Wales District Court. It was found no further reasonable precautions were required of the supermarket after erecting signs in the area whilst an employee obtained a paper towel to clean the spillage. Further, at trial it was found the Plaintiff was only entitled to $1,773.00, being the claim for out of pocket expenses, as she did not meet the threshold for general damages, and had not made out a claim for economic loss and gratuitous assistance.

The Plaintiff appealed to the Full Federal Court. However, the rules of that court provided leave to appeal would only be granted where the quantum of the claim is likely to be in excess of $100,000.00. The court had significant reservations the quantum of the claim would be in the vicinity of $100,000.00.

Issues

  • Was the risk an obvious risk?
  • Was it sufficient to merely erect a warning sign in the area of the claimant’s fall, or was more required?
  • Was the claimant liable in contributory negligence?
  • The quantum of the claim.

Findings

Basten and Emmett JA, together with McDougall J each gave separate reasons for decision and arrived at differing conclusions.

Basten JA’s findings were:

  • “the warning signs were deployed at floor level. They were not readily within the line of sight of a shopper focused on the goods on display and the signs at the end of the aisles.”
  • “The risk posed by the wet floor had been created by the respondent’s own staff in cleaning the floor. An attempt to dry the floor had failed and one member of staff had been dispatched to obtain absorbent material … it would have been a simple step for the dispatcher to stay on or by the wet area in order to direct customers away from it for that very short period of time [that the other employee was obtaining the absorbent material].”
  • “That the appellant was inadvertent and inattentive to the risk which materialized must be accepted. However, whether such inadvertence or inattention constituted contributory negligence is a separate question: McLean v Tedman [1984] HCA 60; 155 CLR 306 at 315. Failure to notice the slippery state for the floor would not have constituted contributory negligence, absent any warning. However, failure to notice the yellow “wet floor” signs did constitute a failure on the part of the appellant to take reasonable care for her own safety … An appropriate apportionment would be achieved by reducing any award of damages by 25% for contributory negligence.”

McDougall J agreed with Basten JA in that the supermarket was liable for failing to station an employee in the area of the spillage and warning signs while the other employee obtained paper toweling. However, he disagreed on the apportionment for contributory negligence and found it should be 50%.

Emmett JA disagreed with both Basten JA and McDougall J in that he did not consider the supermarket was liable for failing to station someone at the site where the signs had been erected to steer customers away from the area. He found “the three wet floor warning signs were clearly visible and were adequate to alert any customer taking reasonable care for his or her own welfare to the presence of the risk.”

As Emmett JA found there was no breach of the duty of care, it was not appropriate for him to arrive at a conclusion in relation to contributory negligence.

In terms of quantum the Court of Appeal noted evidence that:

  • the claimant was overstating her symptoms;
  • the Plaintiff may be suffering from an “underlying borderline personality disorder which may have affected her perceptions and response to pain;”
  • the plaintiff suffered other physical injuries in motor vehicle accidents subsequent to the subject accident;
  • her cannabis use since the incident (which she claimed was for pain relief);
  • the Plaintiff’s medico-legal evidence indicated the Plaintiff was significantly restricted in her activities of daily living and future employment due to her injuries. However, the Defendant’s medico-legal evidence indicated any injuries sustained by the Plaintiff were only temporary in nature; and
  • the claimant was not in gainful employment at the time of the accident, and there was no persuasive evidence at trial the Plaintiff would have obtained gainful employment had it not been for the subject accident.

The Court of Appeal therefore agreed with the trial judge’s findings that the Plaintiff did not meet the threshold for the recover of General Damages (at least 15% of the most extreme case). Further, the court was not persuaded a claim for economic loss or gratuitous care had been made out. As a result, it was agreed with the trial judge’s findings that damages were limited to past special damages amounting to $1,773.00.

Conclusion and Implications

The decision was split both in terms of finding the supermarket liable, and also in terms of contributory negligence. This is an indication of how reasonable minds can differ on the nuances of each particular case despite the very simple factual scenario. It is for these reasons that a sensible commercial settlement is something that should be seriously considered by respondents.

Commercial occupiers should be put on notice that it may not be sufficient to erect warning signs in the area of a spillage, and it may be appropriate to station an employee to avert patrons from the area. The factors that will likely be relevant in assessing whether this is a reasonable response to the risk will include the number of staff employed by the occupier, the number of patrons traversing through the area, and whether it is reasonable (or expected) that a patron’s attention would be diverted (for example looking at items on shelves) when passing through the area.

Although the claimant was successful in having the finding on liability overturned, she was found liable for the supermarket’s costs both in relation to the trial and the appeal. This was due to the quantum of the claim not exceeding $100,000.00 on appeal.

There were three different findings in terms of contributory negligence: nil (trial judge and Emmett JA), 25% (Basten JA) and 50% (McDougall J). In terms of the Court of Appeal’s order it was considered the difference between Basten JA’s finding and the trial judge’s finding should be split. It was therefore concluded an apportionment of 50% for contributory negligence was appropriate.

In terms of quantum, this largely turned on assessment of the claimant’s evidence and the evidence of the medical specialists. There were significant signs of overstatement on the part of the claimant, and the court was not persuaded by the Plaintiff’s medico-legal evidence, which contradicted the vast majority of the other medical evidence.