In the recent case of Woolworths Ltd v McQuillan the NSW Court of Appeal considered that an operator’s duty of reasonable care required keeping a “proper lookout”, not a “perfect lookout”.
Colleen McQuillan (the plaintiff at first instance and the respondent) claimed damages for injuries sustained when she slipped and fell on a grape within the produce section of Woolworths, Leichhardt Marketplace.
Ms McQuillan commenced proceedings in the District Court of NSW against Woolworths Limited (Woolworths) as the operator and occupier of the supermarket.
The case proceeded to hearing before Justice Maiden SC on the separate question of liability. His Honour found in favour of Ms McQuillan and awarded her the agreed sum of $151,000 plus interest and costs.
At first instance, his Honour found that the presence of the grape on the floor was more likely the result of activities of staff of Woolworths in the produce area, before the store had opened at 10am, and had been overlooked in the busy activity that was occurring prior to the store being opened. The slip and fall occurred approximately 6 minutes after the store opened for business that day. While his Honour found no evidence that the system of inspection and cleaning of the supermarket could be improved and the training provided to staff was more than appropriate, it was determined that there was no evidence whether the pre-opening inspection had been carried out in accordance with the system.
After drawing an inference that there was no one who was specifically assigned to the produce area on duty from 10am to the time of Ms McQuillan’s fall, his Honour found that if someone had been on duty in the produce section they would have identified the risk, based on the training given and the warning signs to be on the lookout for grapes on the floor.
Woolworths appealed the decision on six grounds, including that the grape was on the floor before the store had opened and that in reaching his findings, that his Honour erred in reversing the onus of proof, and further, that Woolworths failed to take reasonable precautions against the risk of Ms McQuillan slipping on a grape in its premises.
Woolworths contends that a finding of a single grape on the floor in the produce section of a supermarket is insufficient to establish want of reasonable care and thus breach of duty.
The appeal was allowed in a unanimous judgment by Justices Basten, Gleeson and Payne. Ms McQuillan was ordered to pay Woolworths’ costs in the District Court and its costs in the Court of Appeal.
The Court of Appeal considered whether a reasonable person in the position of Woolworths would have taken precautions beyond those actually taken.
When and how the grape came to be on the floor
Woolworths argued that it was equally probable that a customer had dropped or dislodged the grape in the period between the store opening and the incident. In support of this scenario, there was no evidence of any staff members in the area in the half hour before the incident that would have likely caused the grape to dislodge.
The scenario put by Ms McQuillian that the grape had been dislodged in about the 30 minutes prior to the incident, was no more than speculation. The Court of Appeal set aside the primary judge’s factual findings that the grape was dislodged in the period before the store commenced trade on the day.
The reversal of onus of proof
Woolworths submitted that the primary judge erred in placing reliance on what could not be seen in the CCTV footage as evidence that two Woolworths’ staff were not present in the produce area at a particular time. The Court of Appeal was satisfied that the CCTV footage is not determinative of whether Woolworths staff were present in the produce area after the store opening as the entirety of the area could not been seen within the footage. Further, Counsel for Ms McQuillian did not put to Woolworths’ witness in cross-examination whether staff were present in the area just before, or just after opening.
The Court of Appeal considered the Jones v Dunkel interference drawn by the primary judge as Woolworths failed to call the two staff that were observed in the CCTV footage. However, the Court of Appeal considered it was not necessary for his Honour to deal with that submission because he did not accept that it was likely that the grape was dropped by those staff about one minute prior to the incident.
The Court of Appeal was satisfied that there was no evidentiary burden on Woolworths to call the staff from the produce area, and his Honour erred in drawing an inference against Woolworths in that regard.
Woolworths submitted that Ms McQuillan did not attempt to prove, and his Honour did not make any findings, as to what reasonable care required in terms of the minimum frequency or method of inspections by the Woolworths’ staff working in the area.
Woolworths submitted that his Honour’s ultimate finding is consistent with no negligence. Any implicit finding of negligence by Woolworths’ staff in the produce area assumed, it was submitted, keeping a “perfect lookout”, rather than the exercise of reasonable care to keep a “proper lookout” for hazards and spills on the floor, such as grapes.
The Court of Appeal considered that as the finding that the grape was on the floor prior to opening should be set aside, the primary judge’s finding of negligence by Woolworths’ staff in the produce area before 10am cannot stand.
The Court considered that even if the grape had been present on the floor prior to opening, an established system of cleaning was in place and there was no evidence from departure of that system. The primary judge had remarked that a single loose grape could be missed in the busy activity in the store prior to opening. The Court of Appeal found that this is not a finding of a causal act of negligence.
Even in assuming that the grape came onto the floor after 10am, Woolworths submitted that its duty required reasonable conduct, not perfection. If its staff had not seen a single grape on the floor, this did not establish that there was not “a proper lookout”.
The Court of Appeal found that a failure to observe a single grape on the floor was not a casual act of negligence. Further, there was no occasion for either of the Woolworths’ staff, exercising reasonable care, to scan the floor specifically near where Ms McQuillan later fell as they passed near that area.
The Court of Appeal provides guidance as to what is “reasonable conduct” and further, when a Jones v Dunkle inference may be drawn.
We are reminded that the application of section 5B(1)(c) of the Civil Liability Act 2002 (NSW) requires reasonableness, not perfection. Of course, here it is of relevant assistance to occupiers and operators that an adequate system of cleaning and inspection, that is in place and adhered to, is of assistance in establishing “reasonableness”.
The rule in Jones v Dunkel applies where a party is “required to explain or contradict” something, not simply to fill a gap in the evidence or justify an inference that another party would have otherwise been adverse to.