Strong v Woolworths Ltd

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Crennan,Bell JJ.,Heydon J.
• Judgment Date: 07 March 2012
• Neutral Citation: [2012] HCA 5,2012-0307 HCA A
• Court: High Court
• Docket Number: S172/2011
• Date: 07 March 2012

Kathryn Strong

Appellant

and

Woolworths Limited T/As Big W & Anor

Respondents

[2012] HCA 5

French CJ, Gummow, Heydon, Crennan and Bell JJ

S172/2011

HIGH COURT OF AUSTRALIA

Strong v Woolworths Limited

Negligence — Causation — Slip and fall injury — Absence of adequate system for periodic inspection and cleaning — Whether factual causation under s 5D of Civil Liability Act 2002 (NSW) (‘Act’) excludes notions of ‘material contribution’ — Whether appellant had proved factual causation under s 5D(1)(a) of Act — Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81–104.

Words and phrases — ‘but for’, ‘causation’, ‘material contribution’, ‘necessary condition’, ‘slipping case’, ‘system of periodic inspection and cleaning’.

Civil Liability Act 2002 (NSW), ss 5D, 5E.

Representation:

B M Toomey QC with T J J Willis and E G Romaniuk for the appellant (instructed by Leitch Hasson Dent Lawyers)

J E Maconachie QC with P Biggins for the first respondent (instructed by Bartier Perry Solicitors)

Submitting appearance for the second respondent

ORDER

1. Appeal allowed.

2. Set aside the orders of the New South Wales Court of Appeal made on 2 November 2010 and in lieu thereof dismiss the first respondent's appeal to that Court with costs.

3. The first respondent to pay the appellant's costs in this Court.

1 French CJ, Gummow, Crennan and Bell JJ. The appellant suffered serious spinal injury when she slipped and fell while at the Centro Taree Shopping Centre (‘the Centre’). At the time, she was in the sidewalk sales area outside the entrance to the Big W store. This area was under the care and control of the first respondent, Woolworths Limited, trading as Big W (‘Woolworths’). The appellant is disabled. Some years before these events, her right leg was amputated above the knee. She walks with the aid of crutches. On this occasion, the tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped out from under her and she fell heavily.

2 The appellant brought proceedings in the District Court of New South Wales (Robison DCJ) claiming damages for negligence against Woolworths and the second respondent, CPT Manager Limited (‘CPT’), the owner of the Centre. The appellant obtained judgment against Woolworths for $580,299.12. The claim against CPT was dismissed.

3 Woolworths appealed to the New South Wales Court of Appeal ( Campbell JA, Handley AJA and Harrison J). It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area 1. Nor was it in question that, on the day of the appellant's fall, Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area. The Court of Appeal held that the appellant had failed to prove that Woolworths' negligence was a cause of her injury. The appeal was allowed, the judgment was set aside and the proceedings were dismissed.

4 The appellant appeals by special leave from the orders of the Court of Appeal. The determination of causation in a claim for damages for negligence in New South Wales is subject to the provisions of Div 3 of Pt 1A of the Civil Liability Act 2002 (NSW) (‘the CLA’). Section 5D states the governing principles. Among the appellant's grounds of challenge was the contention that the Court of Appeal had adopted an unduly restrictive interpretation of s 5D. As will appear, the Court of Appeal's reasons should not be read as confining the operation of s 5D in the way suggested by the appellant. In any event, the issue raised by the appeal does not turn on the Court of Appeal's analysis of proof of factual causation under the statute. Rather, the appeal concerns the familiar difficulty in ‘slipping cases’ of establishing a causal connection between the

absence of an adequate cleaning system and the plaintiff's injury when it is not known when the slippery substance was deposited 2. In issue is the correctness of the Court of Appeal's conclusion that it was not open to infer that the chip had been on the ground long enough for it to have been detected and removed by the operation of an adequate cleaning system. CPT's interests are not affected by the outcome of the appeal. It filed a submitting appearance.

5 For the reasons to be given, the appeal should be allowed, the orders of the Court of Appeal set aside and, in lieu thereof, the appeal to that Court should be dismissed with costs.

The facts

6 The incident occurred at around 12.30pm on Friday, 24 September 2004. The appellant was at the Centre with her daughter and a friend, Ms Hurst. The Centre contained a Woolworths store and a Big W store separated by a common area, part of which was operating as a food court. Woolworths had the exclusive right under its lease with CPT to conduct ‘sidewalk sales’ in an area that was roughly square, extending around 11 metres from the Big W entrance doors into the common area towards the food court. Two shoulder-high pot plant stands were positioned on either side of the sidewalk sales area, creating a wide corridor leading to Big W's entrance. The appellant was inside the corridor, walking towards Big W with her daughter on her left and Ms Hurst just a little in front to her right. As the appellant moved to her right to inspect the pot plants, the tip of her crutch came into contact with a chip, or with grease deposited by the chip, and the crutch slipped out from under her, causing her to fall. After her fall, the appellant saw a grease mark on the floor at the point where the crutch had slipped. Her daughter described the grease stain as being ‘as big as a hand’. The daughter and Ms Hurst each saw a chip on the ground.

7 CPT, or a company associated with it, had a contract with a cleaning services company. The contract specified that the premises were to be maintained so that ‘floors are to be free of any rubbish and or spillages’. The maximum time between cleaning inspections for the ‘mall/common areas’ was

stipulated to be 15 minutes. Kathryn Walker was employed as a cleaner by the cleaning services company. Her hours of duty were from 7.30am to 4.00pm. Ms Walker was responsible for cleaning the common area but this did not extend to the sidewalk sales area. A second cleaner was on duty in the period 11.00am to 2.00pm. The second cleaner's duties were to clean the food court area, the public toilets and to respond to calls to clean up spillages. Security staff patrolled the Centre continuously and would contact the cleaner by two-way radio if a spillage was detected.

8 Big W employed a person to act as a ‘people greeter’, to welcome people coming into the store and to check the bags of those leaving it. This employee was required to stand in the vicinity of the Big W entrance doorway. It was part of her duties to keep an eye out for spillages within the sidewalk sales area. All Big W employees were trained to be vigilant for spillages. It appears that another Big W employee was on duty at a cash register located in the sidewalk sales area. However, Woolworths acknowledged that it did not have any system in place on the day of the incident for the periodic inspection and necessary cleaning of the sidewalk sales area.

9 Ms Walker was on her lunchbreak at the time of the appellant's fall. She later completed a report concerning the incident in which she recorded that ‘the area’ had last been cleaned or inspected at 12.10pm. The reference to ‘the area’ was to the common area adjacent to the sidewalk sales area. Ms Walker recorded that ‘the area’ was cleaned ‘every 20 minutes’. There was no explanation for the difference between the 15 minute inspection intervals stipulated in the contract and the 20 minute inspection intervals recorded by Ms Walker.

The proceedings in the District Court

10 The appellant particularised Woolworths' negligence as including its failure to institute and maintain a cleaning system to detect spillages and foreign objects in and around the plant trolleys.

11 The primary judge delivered ex tempore reasons for judgment. His Honour found that Woolworths was the occupier of the sidewalk sales area and that it owed a duty of care to persons coming within it. The essence of the balance of his reasoning as to Woolworths' liability was as follows 3:

‘If other people could see [the grease mark] apart from the plaintiff after the event then it begs a serious question as to why it was not seen by an employee of [Woolworths] in those particular circumstances and it should have been removed either by [Woolworths] or [Woolworths] alerting a cleaner to remove it which was entirely open to [Woolworths] to do and if that had been done the [appellant] simply would not have come to grief. I can put it no more simply than that.

So therefore [Woolworths] is guilty of negligence.’

The Court of Appeal

12 The Court of Appeal noted that the primary judge had not addressed either breach of duty or causation of damage 4. Nothing turned on the former omission in circumstances in which Woolworths did not challenge the finding that its conduct was negligent. The sole ground of appeal was directed to the implicit finding that Woolworths' negligence was a cause of the appellant's injury.

13 In the absence of findings by the primary judge, it was necessary for the Court of Appeal to make factual findings concerning causation. The Court of Appeal found that reasonable care did not require the continuous presence of a person looking out for slippery substances in the sidewalk sales area 5. It followed from this that proof of breach of duty did not of itself make it likely that, had the duty been performed, the appellant would not have suffered harm. Periodic inspection and cleaning were all...