The NSW Court of Appeal recently considered the case of Coles Supermarkets Australia Pty Ltd v Bright NSWCA 17. This case involved limited evidence as to how the plaintiff's accident occurred. The decision provides guidance as to what inferences a Court is entitled to make in these circumstances.
- On 1 April 2010, Sharon Bright (Bright) slipped and fell in a Coles Supermarket on the NSW North Coast, injuring her left ankle.
- Bright claimed that she had slipped in a puddle of water that had been left on a tiled area in front of a flower display. The display had been arranged ten minutes prior to the incident.
- While CCTV footage captured the time and position of the plaintiff's fall, details of how she came to slip and fall were not clear.
DISTRICT COURT DECISION
- Bright's claim was heard in the District Court which handed down Judgment on 3 March 2014. She was successful in her claim that the actions of the person responsible for arranging the flower display, employed by Lynch Group Australia Pty Ltd (the Second Defendant) and the omission of the Store Manager, employed by Coles Supermarkets Australia Pty Ltd (the First Defendant), had caused her to slip and fall.
- The trial judge determined that the case turned on a single factual issue, specifically whether or not there was water on the ground in front of the flower display before the plaintiff slipped and fell.
- It was distinguished from CCTV evidence that the plaintiff had, in the process of falling, struck and overturned a bucket of flowers in the display with her arm. This was held to account for the fact that there was water on the ground immediately following Bright's fall.
- With respect to whether there was water on the ground prior to the fall, Bright gave evidence that she had seen a skid mark in the water consistent with her foot slipping. This evidence was reiterated by Bright's mother who had been alerted to the skid mark by Bright immediately following the fall.
- The trial judge determined that he was satisfied on the balance of probabilities "that it was a patch of water which caused the plaintiff to fall" but did not proceed to explain how his conclusion was reached.
- The trial judge also did not analyse whether either of the defendants were negligent in failing to remove the water.
NSW COURT OF APPEAL
- In a unanimous decision, Justices Basten, Hoeben and Ward overturned the District Court's decision, entering a verdict for the first and second Defendants.
- The Court of Appeal held that the available evidence did not permit the trial judge to reach a definitive conclusion that the floor was wet and therefore, the trial judge could not have been satisfied on the balance of probabilities that there was water on the floor before Bright slipped.
- It was an "incontrovertible fact" that Bright had not seen any water on the ground until after her fall. Evidence from CCTV footage also showed a significant number of people walking in front of the flower display, over a period of ten minutes, after it had been arranged. Seconds before her accident, Bright had also walked close to the display in the opposite direction to the one in which she fell. The CCTV footage did not convey any indication that any person noticed, nor reacted to, any water on the floor.
- The Court of Appeal also rejected the trial judge's finding of negligence on the part of both appellants. It was held that his decision did not correlate with his finding that both the store manager and the person responsible for arranging the flower display had acted reasonably and carefully, understood the safety risks associated with spills and were conscientious in clearing spills when they occurred. The trial judge had also accepted that the system of identifying and clearing spills at Coles was "perfectly adequate." This led the Court of Appeal to conclude that: "The mere fact of a spillage of a small quantity of water did not necessarily entail a failure to take reasonable care...Some further reasoning was required: it is not apparent in what respect there was a lack of care in any event."
This case reinforces the long-standing principle that a plaintiff has an evidentiary obligation to establish the facts that support a finding of negligence against a defendant.
Where direct proof is not available and the evidence adduced is of an entirely subjective nature, the Court may be required to draw inferences. In this case, the NSW Court of Appeal held, affirming the principles in Jones v Dunkel  HCA 8, that:
"There is no bright line distinction to be drawn between inferences based on common experience and guesswork or speculation, but the distinction depends upon the plaintiff's obligation to establish an affirmative satisfaction as to the fact based on probabilities."
Evidence that establishes no more than the possibility of the existence of a fact is not sufficient proof of the probability of that fact.
This case also affirmed that the determination of whether there has been a breach of a duty of care requires consideration of whether "reasonable precautions to avoid injury to a class of persons who may be affected by particular conduct" have been taken. Ultimately, retailers have no obligation to guarantee that no risks of injury will arise, only that they conduct a reasonable system of inspection.