This matter involved an appeal by Woolworths Limited from a decision in the District Court of NSW.
The appeal was in relation to a Plaintiff who suffered injuries as a result of slipping and falling at a Big W supermarket and involved a consideration of causation of damage.
The factual matrix involved the Plaintiff being an amputee traversing an area towards a Big W supermarket and moving between pot plant stands at which point Ms Strong slipped as a result of her crutch moving on a chip causing her to fall to the ground and suffer injury, loss and damage.
The area in which Ms Strong fell was situated approximately 400cm from the entrance to the Defendant’s store.
This case involved an analysis of Section 5D of the Civil Liability Act 2002 which requires a Plaintiff to establish that the negligent action caused harm.
Section 5E of the Civil Liability Act 2002 requires the Plaintiff to prove, on the balance of probabilities, all of the factual matters that relate to causation.
In the matter subject of the appeal, Woolworths Limited had no cleaning system and on past authorities one would have believed that the Plaintiff would have been successful in establishing negligence due to the failure of Woolworths Limited to have in place an adequate cleaning system.
The Court found that in the case at hand, periodical inspection would have been sufficient for the Defendant to have not breached its duty in the circumstances of this matter in such circumstances, where it did not have a cleaning system in place. The Court then noted that there had not been lead any evidence that could justify the conclusion that had this duty been discharged, in other words had Woolworths Limited had in place an adequate cleaning system, the accident would not have occurred. The Court found that the fact that the Plaintiff fell on a chip was not the sort of hazard that was constant and being something that would have happened on a regular basis during the day. The Court found that given the Plaintiff slipped on a chip and was in close vicinity to the food area, the consideration on whether or not a cleaning system was reasonable depended on many things that could have been dropped onto the floor during this period rather than the dropping of a single chip as stated in this matter.
The Court accordingly decided that there was no evidential material, upon which the Court could decide that a reasonable cleaning system would have ensured that the chip upon which the Plaintiff slipped would have been removed had an appropriate cleaning system been in place; given there was no evidence to determine how long the chip had been on the ground.
The Court gave various considerations to the Plaintiff’s solicitors, where they should take into account in conducting slip and fall cases and put a positive requirement on the Plaintiff’s circumstances where there is no cleaning system and no evidence. Such as how long an item was on the ground in which is leading evidence that may allow the Court to draw an inference, if the chip had been there for a significant period or at least that it was more likely than not that it was on the ground for a certain period such as the chip being cold or dirty.
In essence, the decision allows the judiciary the scope to conclude that the Defendant was negligent in many factual situations however, positive evidence must be put forward to allow the Court to draw a conclusion that the item upon which the Plaintiff slipped was on the ground for a significant period or at least a period in excess of what would have been detected, had a reasonable cleaning system been enforced at the time.
This case is often cited in negligence proceedings as the relevant test to be applied by a trial Judge when determining causation. The question asked by the Court of Appeal in determining causation was: would the accident have not happened if the Defendant had an adequate system of cleaning in place to which the answer needed to be, more likely than not.
This case is currently subject to a High Court Appeal.
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