Woolworths successfully appeals finding of liability for customer's slip on grape in supermarket.

In Issue

  • Whether the factual findings permitted a ruling of negligence
  • Whether reasonable precautions were taken

The Background

On 25 November 2012, the respondent slipped and fell on the floor of the fresh produce section of a supermarket operated and occupied by the appellant at Leichhardt in Sydney just after it opened at 10am.

She commenced proceedings in the District Court claiming damages for her injuries.

The Decision at Trial

The primary judge found in favour of the respondent and entered judgment in the agreed sum of $151,000 plus interest and costs.

The Issues on Appeal

The appellant challenged the factual findings that the grape was on the floor before the store opened and the finding that no staff were on duty in the produce section at the relevant time. The appellant also argued that in any event the primary judge erred in finding that there was a casual act of negligence, that it had failed to take reasonable precautions, and that it knew or ought to have known of a grape on the floor and was negligent for not removing it.

The Decision on Appeal

The Court of Appeal unanimously overturned the primary judge’s decision.

The evidence did not support the factual finding that the grape was on the floor before the respondent entered the store. In addition the primary judge’s finding that no employees were present in the produce section was contrary to the evidence led from the store manager and was based on what could not be seen in the CCTV footage.

The Court of Appeal accepted the appellant’s arguments that these findings effectively (and impermissibly) reversed the onus of proof and required the appellant to establish that there were employees on duty in the produce area and that they carried out adequate inspections of it. The Court of Appeal noted that the primary judge effectively drew a Jones v Dunkel inference against the appellant for its failure to call evidence from the 2 staff in the produce area. However, the case advanced by the respondent did not impose an evidentiary burden on the appellant to call the staff from the produce area to give evidence and the primary judge erred in drawing an adverse inference against the appellant in that regard.

The primary judge’s finding that there had been a casual act of negligence was rejected. The evidence established that a cleaning and maintenance system was in place and was adequate. Even assuming that there was a grape on the floor either just before or just after the store opened, the Court of Appeal was not persuaded that the failure to observe it was a casual act of negligence. Although, in accordance with the cleaning system, the staff were required to keep a proper lookout for hazards on the floor, this did not mean they had to keep a perfect look out.

Implications for you

This case provides useful guidance on the actions of a reasonable person within the meaning of s 5B(1)(c) CLA NSW and establishes that absolute perfection is not required. The fact that an adequate system of cleaning and inspection was in place and was followed was sufficient to satisfy the court there had been no breach of duty.

Woolworths Ltd v McQuillan [2017] NSWCA 202