A retailer does not owe a duty to prevent a danger being created arising from the use of products purchased from it.
On 16 July 2014 the NSW Court of Appeal handed down its decision in Ryder, finding in favour of Woolworths Ltd (the defendant/appellant), the occupier of a supermarket located in the Westfield Shopping Centre (the Centre) at Mt Druitt. On 10 November 2010, Ms Tracy Ryder (the plaintiff/respondent) was walking in the common area of the Centre, adjacent to the appellant’s supermarket, when she slipped on soapy residue on the floor surface.
CCTV footage of the respondent’s fall revealed that the soapy residue had in fact been left by a child who had been earlier blowing bubbles with a soapy liquid in the common area. She then began to blow bubbles and rubbed her foot on the floor. It was at this spot that the respondent fell. Relevantly, the primary Judge found that one of the appellant’s checkout operators had opened the bottle of soapy liquid at the checkout counter for the child.
At First Instance
The primary Judge held that the defendant owed the plaintiff a duty of care to ‘prevent a danger being created by reason of the use of products purchased at the supermarket’. The defendant was found to be liable for the plaintiff’s injuries and disabilities for the following reasons: (1) the defendant’s employee had opened the bottle of soapy liquid for the child and (2) in circumstances where the defendant’s employee was aware that the bottle of soapy liquid was open, she was in a position ‘to have a look outside the defendant’s premises in immediate proximity to the checkout in question and see if anything had spilled from the soapy water container which the little girl was holding’. The fact that the employee failed to do this gave rise to a breach of duty. The primary Judge noted that the second basis was ‘not a separate and distinct basis of liability’ as it was dependent on the ‘causal act of negligence’ of the employee in opening the bottle of soapy liquid.
The primary Judge ordered judgment in favour of the plaintiff and the defendant was to pay the plaintiff $176,032.00.
Issues on Appeal
The appellant challenged the primary Judge’s findings on the following three issues:
- That an admission had been made by the appellant’s employee in the presence of the respondent which was adverse to the appellant’s interests.
- That the appellant owed a general duty of take reasonable care for the safety of people walking in the common area.
- That the appellant breached that duty of care.
In determining the appellant’s liability, the primary Judge gave significant weight to an admission allegedly made during a brief exchange between two of the appellant’s employees, shortly after the respondent’s fall. The respondent’s evidence was that following her fall, two employees came to her assistance during which the male employee said ‘[w]hat’s happened here?’ to which the female employee replied ‘[i]t’s what we opened before for the lady with the pram’. The respondent alleged that the admission was made by Ms Ashmore. However, the primary Judge found that the admission was in fact made by Ms Williams at a time earlier than alleged by the respondent.
Sackville AJA opined that the primary Judge’s findings were contrary to the respondent’s evidence. Ironically, in circumstances where the respondent was accepted as a witness of truth, the primary Judge proceeded to make factual findings unsupported by the respondent’s evidence or the evidence of other witnesses. The primary Judge held that as the appellant did not call Ms Williams as a witness, an inference was open and ought to be drawn that Ms Williams’ evidence would be adverse to the interests of the appellant. Sackville AJA regarded this as an incorrect application of the principle set out in Jones v Dunkel HCA 8. Given there was no ‘affirmative evidence’ that Ms Williams had made the admission, the appellant was not required to explain or contradict this allegation. It follows that the appellant’s failure to call Ms Williams to give evidence could not give rise to an inference that the evidence would not assist the appellant.
Duty of Care
Whilst the primary Judge acknowledged that the appellant did not have a legal right to control the common area outside the supermarket, his Honour still found that the appellant owed a ‘general law duty’ to take reasonable care for persons entering and leaving its supermarket as well as walking along the passageway if ‘a danger to them was known which could be obviated by the exercise of reasonable care’.
Sackville AJA opined that the primary Judge had derived the above duty on the basis that as the appellant was in a position to take precautions to prevent the respondent’s fall, namely by its employee refusing to open the bottle of soapy liquid and/or warning the child against use of the liquid in the common area, it owed the respondent a duty. Sackville AJA rejected this formulation of duty stating that ‘there is no basis in policy or principle for a duty of care of this breadth’. Indeed, such a duty would ‘impose extraordinarily onerous burdens’ on the appellant, requiring it to take reasonable care to prevent foreseeable harm to not only persons in its supermarket, but those in the common area who had no intention of entering the supermarket.
The court found that the appellant could not be expected to assume responsibility for the safety of passers-by, particularly in circumstances where the owner/manager of the Centre was responsible for the safety of persons in common areas. On this basis, Sackville AJA held that the primary Judge erred in finding that the appellant owed the respondent a duty of care.
Breach of Duty of Care
Despite finding that the appellant did not owe the respondent a duty, Sackville AJA still considered the reasons for which the primary Judge erred in finding that the appellant breached its duty. Sackville AJA held that the primary Judge failed to give consideration to the provisions of section 5B of the Civil Liability Act 2002 (NSW) in considering whether the appellant had failed to take precautions against the risk of harm. In particular, the primary Judge did not examine whether a reasonable person in the position of the appellant would have undertaken the precautions that the primary Judge opined to be ‘sensible and eminently practicable precaution[s]’.
The primary Judge found that the appellant breached its duty based on the ‘causal act’ of the appellant’s employee opening the bottle of soapy liquid, however, no consideration was given to the precise circumstances in which this occurred, in particular, whether the bottle was opened at the request of the child or her parents and whether the employee warned against use of the liquid. Such matters are of relevance in finding a breach of duty given the child was in the care of adult persons who were presumably capable of opening the bottle themselves and adequately supervising the child whilst she was in the common area.
Sackville AJA noted that it is not a ‘trivial step’ to find that a checkout operator at a supermarket should be considerate of the dangers associated with the use of a purchased product in the common areas of a shopping centre. Indeed even if the appellant’s employee had refused to open the bottle, the child’s parents may have opened the bottle anyway therefore leading to the question as to whether the employee would be expected to intervene in such circumstances given she had knowledge that the bottle had been opened. The court held that this could undoubtedly lead to ‘potential for awkwardness or even unpleasantness if operators have to give warnings to customers to ensure that they behave sensibly outside the supermarket itself’. The primary Judge failed to consider all such matters in determining a breach of duty of care.
The decision highlights the following keys points.
- Foreseeability of the risk of harm of itself will not be sufficient to impose a duty to take reasonable care to prevent a risk materialising.
- A retailer will not be liable for customers using goods purchased from them in circumstances that give rise to a risk that materialises.
- The duty owed by retailers does not extend to areas outside their premises.