I have found that there has been a breach of duty of care by the defendant but that the breach did not cause the loss suffered by the plaintiff.
In the event that an appellate court finds that I am in error in this conclusion, I will briefly consider the question of damages in the present case. There is no evidence that the plaintiff had any relevant pre-accident medical conditions or disabilities.
The following submissions as to damages were made by the parties:
Head of Damage Plaintiff Defendant
Non-economic loss $211,500 (32%) $31,500 (22%)
Past out-of-pocket expenses - agreed $2,500 $2,500
Future out-of-pocket expenses Up to $55,978 Up to $5,000
Past loss of earning capacity and wages (including superannuation) - agreed $22,500 $22,500
Future loss of earning capacity (including superannuation) $150,000 (buffer) Up to $25,000 (buffer)
Past domestic assistance - agreed Nil Nil
Future domestic assistance $102,750 Nil
[2]
Non-economic loss
As stated, the claim is governed by the CLA. Under s 16(1) of the CLA, no damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case. Under s 3 of the CLA, "non-economic loss" is defined as meaning any one or more of pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There is no evidence that there has been a loss of expectation of life in the present case. Similarly, the plaintiff has not had surgery and therefore there is no disfigurement. The early wasting of her thigh is, on the medical evidence, no longer present.
There is no dispute by the defendant that the plaintiff is at least 15% of a most extreme case having regard to pain and suffering and loss of amenities of life. The real issue is the appropriate percentage of a most extreme case. Under the Civil Liability (Non-Economic loss) Amendment Order 2022 the maximum amount which can be awarded from 1 October 2022 is $705,000.
The following factors would appear to be relevant in considering this issue:
1. The nature of the plaintiff's injury, including a fractured patella in the accident;
2. The need for her to wear a Zimmer splint and the use of crutches for a fairly lengthy period;
3. The pain caused by the initial injury and in the period thereafter;
4. The back pain caused initially probably by the use of crutches and the initial alteration in gait;
5. The plaintiff's continuing need to wear a knee support;
6. The plaintiff's continued use of Voltaren for pain;
7. The plaintiff continuing to experience pain in her knee arising from the accident while undertaking and following undertaking her normal work duties;
8. The plaintiff's difficulties, which I accept, in undertaking heavier cleaning tasks at home;
9. The effect of the accident on the plaintiff readily using public transport for social purposes and in no longer being able to engage in Spanish dancing with the benefits of social activities with friends.
In my view, the percentage of a most extreme case submitted by the defendant of 22% is too low, taking account the above matters. However, I am also of the view that the plaintiff's submission of 32% of a most extreme case is too high and does not take into account that the plaintiff can work and that she has had a substantial improvement in her position. See also the later medico-legal reports about the plaintiff's likely future improvement. The continued pain and the effect on the plaintiff's social life and ease in catching public transport to activities such as her Church attendance (and thus her independence) are relevant. In my view, taking into account all the evidence, the appropriate percentage is 27% of a most extreme case. Under s 16(3) of the CLA, the damages for non-economic loss in the case of 27% of severity is limited to 10%. The amount which should be allowed is $70,500.
[3]
Past out-of-pocket expenses
Past out-of-pocket expenses have been agreed in the sum of $2,500 and I allow that amount.
[4]
Future out-of-pocket expenses
Various future out-of-pocket expenses are sought by the plaintiff relying on the report of Dr Guirgis dated 25 January 2022.
However, I prefer the later and more detailed reports of Dr Home and Dr Shatwell. These reports are more consistent with the report of the plaintiff's treating orthopaedic surgeon, Dr Szomor. They also more closely reflect the reality of the plaintiff returning to work part-time undertaking a fairly demanding job.
Accordingly, I make no allowance for the need for future arthroscopic surgery having regard to the opinions of Drs Home, Shatwell and Szomor on this issue which I found to be persuasive in the light of the plaintiff's presentation to those doctors which post-dated the presentation to Dr Guirgis.
The evidence establishes that the plaintiff has had no other medical treatment including from her general practitioner for her injuries or physiotherapy since 2022. I do not allow therefore any amount for consultations with the plaintiff's general practitioner or consultations with specialists in the future arising from her immediate injuries. In relation to physiotherapy, the plaintiff has had a treatment of physiotherapy and has kept to her home exercises routine in accordance with the physiotherapist's advice which has assisted her. In my view, no further physiotherapy treatment is required.
Both Dr Home and Dr Shatwell refer to a small risk that the plaintiff could have long-term deterioration of function or problems with her patellofemoral joint in the future. Dr Shatwell is also of the view that the plaintiff taking fairly regular analgesia is reasonable, although he expresses the view that the plaintiff should be able to cease this medication at some stage in the next few months as it is unlikely to be providing any significant benefit. He also was of the view that use of an elasticated knee brace was reasonable but would advise against the plaintiff using this in the long term.
The future possibility of surgery is several years away and is regarded by Drs Home and Shatwell as small. That potential expense is thus a deferred expense which needs to be allowed for. Contingencies must be taken into account, for example that the plaintiff may not need the surgery. I refer to and apply the approach of the Court of Appeal in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 as to the need to take into account contingencies and vicissitudes.
In my view, I should make a buffer allowance for pain medication, a small risk of future problems with the knee joint (which may involve general practitioner and/or specialist review and/or physiotherapy treatment) and replacements of the elasticated knee brace for a three-year period. Taking all of these matters into account, I would allow the amount of $8,000 as a buffer for future out-of-pocket expenses.
[5]
Past economic loss and loss of earning capacity (including superannuation)
The amount was agreed of $22,500. I allow that amount.
[6]
Future economic loss (including superannuation) and loss of earning capacity
The plaintiff claims a substantial buffer on the basis that she may be disadvantaged in the future in maintaining or continuing in employment as a cleaner having regard to the deterioration she may encounter with respect to her right knee and her current knee pain and restrictions. It is also submitted that the plaintiff may have difficulties maintaining her current employment. A buffer may be allowed where the impairment is or may be productive of financial loss: see New South Wales v Moss [2000] NSWCA 133 at [87] and Penrith City Council v Parks [2004] NSWCA 201.
The principles I apply have recently been clearly stated by White JA (with whom Griffiths AJA and Weinstein J agreed) in Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 at [38]-[44]. I note, in particular, the requirements of s 13 of the CLA.
In my view, the plaintiff's ongoing pain and limitations have reduced the plaintiff's earning capacity in some cleaning and related occupations, particularly those involving heavy lifting, bending and squatting. This may possibly lead to some loss, including if future surgery is needed which the medical evidence establishes as being a small risk: see Chen, above, at [41].
In my view, much of the plaintiff's difficulty in obtaining different or better employment is due to her limited understanding of English. She could also undertake nannying with a Spanish speaking family on her evidence.
However, the plaintiff's continuing residual pain is relevant. The medical evidence before me suggests it will improve in the future but the nature of the work of the plaintiff raises some doubts in relation to a full or virtually full recovery. In my view, the plaintiff's earning capacity has unquestionably been reduced but the extent of it and how long the difficulties will remain is unclear. There is also the small future risk (not quantified by the medical experts) which I have referred to.
In my opinion, the only adequate way to compensate the plaintiff is with a buffer. In my view, the buffer should be in the amount of $40,000 and I allow that amount.
[7]
Past domestic assistance
The plaintiff dropped the claim for past domestic assistance in the course of the hearing.
[8]
Future commercial assistance
The plaintiff relied on the report of Dr Guirgis in relation to the need for future commercial assistance. Dr Home, in a later report, was of the view that the plaintiff did not require assistance with domestic activities and that this was established by her working as a commercial cleaner. He did not anticipate the plaintiff's need for domestic assistance would change in the short to medium term. He saw there being some risk that the plaintiff would need assistance with heavier domestic chores for one hour per week commencing 10 years from the present if she developed post-traumatic degenerative change in the patellofemoral joint.
Dr Shatwell was of the view that treatment for the plaintiff had been appropriate and had restored the plaintiff to near-normal right knee function. He was of the view that Ms Gomez was fit for all normal domestic duties and household tasks apart from squatting, kneeling, crouching and prolonged periods of stair climbing. He mentioned the likelihood of gradual improvement in knee function with the passage of time but also, like Dr Home, mentioned long term risks. He was of the view that Ms Gomez would not require any "significant" domestic assistance up to her retirement age as a result of her injury. What precisely was meant by "significant" is unclear. I find that the plaintiff will likely work to 67 only having regard to the heavy nature of her cleaning work.
In my view, the plaintiff is able to undertake virtually all domestic duties. She has some difficulty at present with harder domestic tasks in the bathroom she uses in her unit. She also has some restrictions and pain in catching public transport to Church.
I consider it unlikely that her son Eric will not continue to assist her even if he moves out and establishes his own life with a partner. However, there is a possibility that he will not be always available.
In my view, it is inappropriate to allow the sum claimed by the plaintiff which really relies on Dr Guirgis' report.
There is, however, some risk for the future, particularly if the plaintiff suffers a deterioration as referred to in the reports of Dr Home and Dr Shatwell. Some allowance in my view should be given for future commercial assistance but it should be modest. Some of the potential costs will be deferred. I would allow $4,000 under this heading as a buffer.
[9]
Conclusion on damages
Accordingly, in the event the plaintiff had succeeded I would have allowed the following amounts
Non-economic loss $70,500
Past out-of-pocket expenses $2,500
Future out-of-pocket expenses $8,000
Past economic loss $22,500
Future loss of earning capacity $40,000
Past care Not claimed
Future commercial care $4,000
Total $147,500
[10]
Determination
As causation has not been established the plaintiff's claim must fail. Costs should follow the event and I will make an order to that effect unless some special circumstances can be established. I give leave to apply within 14 days if such an application is sought.
For the above reasons, I make the following orders:
1. The proceedings against the defendant are dismissed.
2. Verdict and judgment for the defendant against the plaintiff.
3. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
4. Leave is granted to either party to apply within 14 days to vary the costs order in (3) above.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 June 2023
In paragraph 17(a) of the Statement of Claim, the plaintiff pleads that the defendant, as the owner or operator of the MetCentre supermarket, owed a duty of care to her.
The question therefore arises as to the relevant duty of care owed, if any. The plaintiff was attending the defendant's shop as a customer.
In Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [7]- [8], McColl JA stated as follows:
"Duty of care
7. It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned.
8. Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows:
"[159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."
At paragraph 82 in that case, Barrett JA (with whom Ward J agreed) stated as follows:
"Duty of care
82. McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day."
In Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253, Leeming JA (with whom McColl JA agreed) stated as follows at paragraph 53:
"53. Finally, the scope of an occupier's duty is delimited by the expectation that users will exercise reasonable care for their own safety: see Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159] and Jackson v McDonald's Australia Ltd at [8]. As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [45], the expectation that a potential plaintiff will exercise reasonable care in a case such as the present goes not merely to the assessment of breach, but is a "specific element contained, as a matter of law, in the scope of the ... duty of care"."
In Woolworths Ltd v McQuillan [2017] NSWCA 202 Gleeson JA (with whom Basten and Payne JJA agreed) stated the duty of care owed by Woolworths to a customer as follows at [25]:
"Duty of care
25. Woolworths was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the floor: Civil Liability Act 2002 (NSW), s 5B; Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7; Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [82]."
In accordance with the above authorities, that duty is owed on the assumption as an element contained in the scope of the duty of care, that a customer plaintiff would exercise reasonable care for their own safety.
Accordingly, I am satisfied in the present case that a duty of care was owed by the defendant to the plaintiff as a customer in their store as set out above. This was not disputed by the defendant in its written submissions.
Breach of duty of care
The next question is whether there was a breach of duty of care by the defendant in the present case.
In paragraphs 49-51 of the Patrick Stevedores case, above, Leeming JA stated as follows:
"49. "Negligent" in this context means failure to exercise reasonable care and skill: s 5. It was not disputed that the risk of someone slipping, falling and injuring himself or herself while stepping up into the hut was both foreseeable and not insignificant. Even so, s 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant's position would have taken the precautions. The fact that s 5B(1)(c) is a necessary element of a plaintiff's success in litigation to which it applies is plain on the face of the section, and was confirmed by the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [34].
50. As McColl JA observed in Jackson v McDonald's Australia Ltd at [11], the requirement in s 5B(1)(c) reflects the formulation of principle by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663 that the measure of the discharge of Patrick Stevedores' duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. That formulation was approved in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488.
51. The essential issue posed by s 5B(1)(c) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak at [31] and [40]. The court's determination of these questions is subject to the limitations imposed by s 5C of the Civil Liability Act, including in paragraph (c) that
"the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.""
The CLA applies in the present case. What precautions against the relevant risk of harm were reasonable to be taken by a defendant in the circumstances is to be determined taking into account s 5B of the CLA: Lloyd v Thornbury [2019] NSWCA 154 at [44].
Accordingly, the Court must identify correctly the risk of harm in the present case. In Lloyd v Thornbury, above, Gleeson JA at paragraphs 47-48 stated the following in relation to the identification of the risk of harm:
"Identification of the risk of harm
47. It is well established that the correct identification of the risk of harm is necessary before "one can assess what a reasonable response to that risk would be": Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer) at [59] (Gummow J).
48. In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [118]- [122], Leeming JA (Basten and Simpson JJA agreeing) emphasised two matters. One is that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. The other is that while there may commonly be a range of appropriate formulations of the generality of the risk of harm, ordinarily it is unnecessary and undesirable to define the relevant risk of harm with too much particularity. See also: Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett JA, Gleeson JA and Tobias AJA)."
Causation
A significant issue in dispute in the case was causation.
Sections 5D and 5E of the CLA provide as follows:
"Division 3 Causation
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The plaintiff accordingly has the legal onus of proving on the balance of probabilities any fact relevant to the issue of causation in the proceedings: see Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [18]; Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [16]-[19]. As stated by the High Court in Strong v Woolworths, the determination of factual causation under s 5D of the CLA involves the application of the "but for" test of causation. This test requires a determination that in accordance with the section, negligence was a necessary condition of the occurrence of harm and that on the balance of probabilities the harm in fact occurred to the plaintiff and would not have occurred absent the negligence: see Strong, above at [18].
In Buljat, the ACT Court of Appeal stated as follows at paragraph 52:
"Causation (ground 4.8)
52. In order to succeed on liability, the appellant was required to establish that the precautions which a reasonable person in the respondent's position would have taken would have resulted in the grape being detected and hence the slip not occurring."
In my view, taking into account the above principles, the relevant risk of harm in the present case is as follows: the risk to a customer of slipping or tripping on an object, including a contaminant or hazard, on the floor of the supermarket if the object or contaminant was not identified and removed or cleaned from the floor by the owner or operator of the supermarket.
Section 5 of the CLA defines "negligence" as a failure to exercise reasonable care. Sections 5B and 5C of the CLA provide as follows:
"Division 2 Duty of care
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence -
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
In McQuillan at paragraphs 26-27, Gleeson JA stated as follows:
"Breach of duty
26. Whether Woolworths breached its duty of care to Ms McQuillan is governed by s 5B of the Civil Liability Act which provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and not insignificant. Woolworths accepted on appeal that the risk that a person would slip on a grape on the floor after walking on it was plainly foreseeable, and that the risk was not insignificant. The elements referred to in s 5B(1)(a) and (b) are not in dispute.
27. The remaining question therefore is that raised by s 5B(1)(c), whether a reasonable person in the position of Woolworths would have taken precautions beyond those actually taken…"
The plaintiff's pleaded approach to the risk of harm and the precautions which should have been taken are set out in paragraph 17 of the Statement of Claim.
The plaintiff submitted in the present case that the three systems of cleaning and inspection outlined by Mr Cheong in his evidence were clearly not followed on the evidence, were in any case inadequate and there was thus a breach of the duty of care owed to the plaintiff.
In his report dated 7 November 2022, Mr Wagstaffe set out in paragraphs 77-79 two of the systems referred to by Mr Cheong being the "clean as you go" approach to inspection and cleaning during trading hours supplemented by an hourly "service zero" call over the public address system. In paragraph 80 of his report, Mr Wagstaffe expressed the opinion that both systems were adequate cleaning and inspection systems for a supermarket, such as the defendant's supermarket, but only if the systems were supported and enforced by management, employees were trained in the systems using competency-based training techniques and all employees performed their roles and responsibilities correctly.
Based on his assumptions and the defendant's incident report, Mr Wagstaffe was of the view that the defendant had failed to ensure that there was an effective system of floor cleaning and inspection implemented and in place.
Mr Wagstaffe's supplementary report dated 5 December 2022 seems to have been based on the absence of documents and procedures in place at the time of the accident to establish an effective system of floor surface cleaning and inspection.
In his evidence, Mr Cheong said that the entrance area of the store was the responsibility for inspection during a "call zero" announcement of the person standing at the coffee counter some five metres away from the green sign on the floor where the piece of fruit was located. The evidence was that there was no person otherwise given the responsibility of checking the front entrance area on a regular basis for contaminants other than during one of the three cleaning systems including the daily sweep log.
The plaintiff submitted that the piece of fruit was clearly observable to Mr Cheong (on leaving, returning and leaving again), the employee Stanley and the person stationed at the coffee counter. Further, it was submitted that the "clean as you go" and "service zero" systems required each of those employees to look for contaminants and hazards as they left the store or worked. The defendant submitted that such a duty could not have applied to Mr Cheong after he had ceased work and there was no clear evidence of the line of sight of Stanley and the coffee counter person on the day of the accident. The warnings of the Court of Appeal as to film and photographs, including as to perspective and distance, in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54] were referred to. I take those matters into account.
I approach the analysis in ss 5B and 5C of the CLA in the light of the above matters:
1. The risk was foreseeable: In my view the risk was clearly foreseeable, that is, it was a risk of which the defendant knew or ought to have known. In my view there was clearly a foreseeable risk that a customer of the store could trip or slip on an object or a contaminant on the floor unless reasonable precautions were taken in relation to cleaning and inspection of the premises, including the front of store area;
2. The risk was not insignificant: In my opinion, the risk of someone in a busy store tripping over or slipping on an object such as a piece of fruit left on the floor or a contaminant on the floor was clearly not insignificant;
3. Whether a reasonable person in the position of the defendant would have taken the precautions indicated: In the present case, the evidence establishes in the defendant's incident report that the last person to inspect the entrance to the store and to find that it was "clean and clear" was Ms Pedron as she left the store. There was no satisfactory evidence that a "service zero" call had been made at either 4pm or 5pm. Mr Cheong was not able to assist in relation to that matter. No evidence was called from the person who was at the coffee counter at the time. The CCTV film establishes that no inspection was made at or around 5.00pm. I conclude from all the evidence, including the films, that no-one saw the piece of fruit upon which the plaintiff slipped, whether that was a customer after the fruit was dropped at 5:02pm or any staff member of the defendant. In my view it is likely, as Mr Cheong gave evidence, that if he or another team member of the defendant had actually seen the piece of fruit, whether in its whole state or as partly crushed, steps would have been taken by them to clean it up because it was an obvious dangerous hazard to persons including customers.
The plaintiff submits that the precautions that were taken in the present case were clearly inadequate. As was stated by the ACT Supreme Court of Appeal in Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71 at [32], the "key issue" is whether a reasonable person in the position of the defendant would have taken additional precautions to those actually taken. In Buljat, the ACT Court considered the various slip and fall cases in supermarkets and the cleaning systems which were adopted in paragraphs 33-43. In paragraph 45, their Honours stated as follows:
"45. Each of these cases reflect a factual conclusion as to whether or not the conduct of the occupier was reasonable within the legal framework in place from time to time. They reflect judgments of trial judges and appellate courts made by reference to the particular evidence about the use of the premises and the extent of the precautions taken in relation to the risk of slips and falls. Because they incorporate a standard of reasonableness they must inevitably reflect, to an extent, social values and community expectations: see Girvan at 244-245, 249."
1. The film in evidence clearly shows that the entrance to the store was busy. Because of the escalators leading down to the store, all persons entering or exiting the store had to walk through the front of store area which appeared to be a relatively small area. It was also the place where baskets were located which many customers would use and thus walk in.
2. Taking into account Mr Wagstaffe's opinion, in my view a reasonable person in the position of the defendant would at least have adopted and implemented as precautions the three cleaning systems he outlined and as Mr Cheong explained, being the "clean as you go" approach, the "service zero" reminder calls on the hour and a daily sweep log. A reasonable person in the position of the defendant would, as stated by Mr Wagstaffe, have taken reasonable steps to ensure that these cleaning and inspection systems occurred and were enforced by management because it is only if that occurs that they are effective.
Criticism was made by the plaintiff of a "service zero" system which relied on the person at the coffee counter seeing an object situated, or smeared, at the entrance whilst undertaking their duties some five metres away. In my view, there is some force in that submission. Having regard to the importance of the entry/exit area in the light of the set out of the store with it being located near the escalators, and the location of the person with responsibility at the coffee counter, in my view the "service zero" procedure should also have required a staff member to inspect the front of store area for objects or contaminants which posed a risk to customers and staff. In my view, a reasonable person in the position of the defendant, having regard to the risk indicated, would have taken the precautions of having the three cleaning and inspection systems in place and having a further inspection at least on the hour as part of the "service zero" cleaning system of the entrance area to the store, in the light of its busy use. If the person inspecting was the coffee counter employee as part of their "service zero" responsibilities, that should have reasonably required the person at the counter to have left the counter and inspected the entry area. Without this, the systems had a real risk of an employee not seeing and detecting a hazard or contaminant posing a risk to customers. To the extent the defendant submits that the cleaning systems were reasonably adequate even where an employee was not obliged to move within their department from where they were standing when "service zero" was called, I reject the submission;
1. The likely seriousness of the harm: A person not seeing an object or a contaminant and tripping or slipping on it may involve serious injuries to themselves and others in the vicinity as occurred to the plaintiff. There was accordingly a risk of serious harm if the precautions were not taken;
2. The burden of taking precautions to avoid the risk of harm: In my view there was not a significant burden on the defendant in taking the cleaning and inspection precautions which I have stated. This could readily have been done by existing staff members;
3. The social utility of the activity that creates the risk of harm: It is clearly important in my view that customers have safe access to a shopping supermarket to look at and obtain goods before purchasing them;
4. In my view the risk of injury by tripping or slipping in the circumstances indicated is obvious;
5. Taking into account all of the matters I have indicated, in my view a reasonable person in the position of the defendant in the present case would have adopted, implemented and enforced the three cleaning systems indicated by Mr Cheong and referred to by Mr Wagstaffe but involving a further inspection and, if necessary, cleaning of the front of store area at least hourly as part of the "service zero" call.
In my opinion, there was a breach of duty of care by the defendant in the present case. First, the defendant did not take reasonable steps to enforce and to ensure that the "service zero" system of cleaning and inspection occurred on the hour. The evidence shows that the inspection did not occur at 5pm. There was no evidence that it had occurred at 4pm. In addition, there was no satisfactory evidence before me that the person who was the staff member at the coffee counter had undertaken any inspection from their work station of the store entrance area at 5 o'clock or any time thereafter. In addition, there was no person allocated to undertake an additional or closer inspection on the hour of the front of store area. Mr Cheong said that no person was given that responsibility which in my view should have occurred having regard to the risks, the seriousness of the harm which could have occurred, the limited burden and the need to take adequate precautions which I have referred to above.
The plaintiff submitted that in addition, various persons such as Mr Cheong, the person working at the coffee counter and the self-check-out employee called Stanley should reasonably have seen the piece of the fruit on the green sign before the plaintiff slipped on it, and taken reasonable steps to ensure that the area was cleaned. It was submitted that Mr Cheong was standing only a metre from the fruit as he left the store. He also returned to the store briefly. It is also said that the piece of fruit was only a few metres from the employee Stanley. It was submitted that the coffee employee was only five metres from the front of store area. The evidence is clear in my view and I find that no-one whether it be a customer or an employee between 5pm and the time of the accident saw the fruit whether in whole or following it being partly crushed and smeared. This was despite the fact that the green on the sign on the floor in my view made the fruit slightly more obvious.
Having considered the matter carefully in the light of the film evidence, in my view I am unable to make those findings. The fruit, although obvious on the film in hindsight when you know it was there, was not of a nature to be readily ascertained except on a closer inspection. In addition, Mr Cheong had finished his duties at the store and was leaving. He was no longer on duty. He came back only very briefly. No authority was brought to my attention by the plaintiff in submissions placing an obligation on an employee to inspect after the employee had ceased duties for the day. It seems difficult to find that there was such an obligation. Secondly, the employee Stanley was not responsible for the front of store area. He was responsible for the check-out area. I cannot conclude from the film that the piece of fruit was within his line of sight. I accept the defendant's submissions on this point. Whilst a photo was in evidence showing the coffee counter, that was taken the next year upon an inspection by Mr Wagstaffe. It is unclear what the field of sight and quality of sight was at the time of the accident for the coffee counter employee. This points to the importance of having an inspection by a person other than the person at the coffee counter on at least an hourly basis (unless they left the coffee counter area to inspect the front of store area).
A submission was made that there should have been an inspection of the front of store area on a far more regular basis than under the "zero hour" system or as part of the "clean as you go" system.
It must be recalled that the piece of fruit was dropped at 5:02pm and the plaintiff slipped at 5:11pm. The front of store area, although busy, was not an area such as a food court. It was not an area where liquids or produce including grapes and other pieces of fruit were stored or available for inspection. There was no requirement for constant inspection (and none was pleaded by the plaintiff). In Buljat at paragraphs 34-44, the ACT Court of Appeal examined the authorities where various periodic cleaning systems were considered in the various cases referred to.
In Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 the High Court determined that reasonable care required inspection and removal of slipping hazards at intervals no greater than 20 minutes in a sidewalk sales area. That conclusion was made in the context of the common area adjacent to the sidewalk sales area being cleaned every 20 minutes. In Alat v Franklins Pty Ltd [2012] NSWDC 104, a finding was made that as at 2008 a reasonable person would have instituted a system of cleaning and inspection of an aisle which contained numerous liquid items with a minimum frequency of every 15 minutes. In McQuillan, above, there was a concession that the cleaning system could not be improved where there were hourly floor inspections by staff and staff being required to be constantly on alert for hazards.
On all the evidence, I am not satisfied that an inspection of the front area of the store should have occurred any more frequently than on the hour as a periodic cleaning inspection. This was the view of the expert Mr Wagstaffe (it is different under the "clean as you go" system which may require more frequent cleaning). It must be recalled that there was only nine minutes between the piece of fruit being dropped and the accident. If there had been a half hour or even quarter of an hour inspection of the entrance area at 5 o'clock, 5:15pm or 5:30pm, it would have made no difference in the present case. I reject the submission that there should have been a system of cleaning and inspection in place as a reasonable precaution by the defendant which would have resulted in cleaning and inspection between 5:02pm and 5:11pm on the day of the accident.
However, because of the lack of enforcement of the existing "zero hour" cleaning system and the lack of any system for additional inspection of the front of store area, in my view there was a clear breach of duty of care in the present case by the defendant.
The findings of the Court in relation to when the piece of fruit was dropped and when the accident occurred means that the approach to the probabilities considered by the High Court in Strong v Woolworths, above, at [35]-[38] and by Hayne JA in Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 at 430 is of less relevance. This approach was also adopted by the ACT Court of Appeal in Buljat at [56]. I accept the submission of counsel for the defendant to this effect.
In paragraph 80 of his report, as stated above, Mr Wagstaffe expresses the opinion that the systems of the defendant in relation to cleaning and inspection for a supermarket were adequate. On the facts of the present case, I have found that additional inspection was required at the front of store area. However, the breaches of duty I have found raise significant issues as to causation. If the "service zero" inspection had occurred at 5 o'clock it would not have resulted in the fruit being identified as it was dropped at 5:02pm. Similarly, an additional system of inspection in the front of store area at either 5pm or 5:30pm would also not have identified the piece of fruit as the former was before it was dropped and the latter was after the accident. Even if, contrary to my view, an inspection occurred on the quarter hour, one at 5pm would not have located the fruit and one at 5:15pm would have been after the accident.
The plaintiff submits that Stanley could have seen the piece of fruit if he had enforced the "clean as you go" system. However, the fruit was outside his area, he looked after the likely busy check-out area and it is not clear on the film that his line of sight enabled him to see the fruit as part of his duties.
The onus rests on the plaintiff to establish factual causation. Having considered the matter carefully, in my view the breaches of duty of care found have not caused the loss suffered by the plaintiff. If the precautions had been taken which I have indicated should have been taken, the plaintiff would still have slipped and suffered injuries. That is because the inspection would have occurred at 5.00pm before the fruit was dropped and no other inspection should have occurred until 6.00pm. Any more frequent inspection would also not have occurred, even if a greater obligation was imposed on the defendant, earlier than 5.15pm.
I have concluded above that Mr Cheong, having finished his work and gone off duty, and the employee Stanley, who had responsibility for a different area, did not breach any duty of care. That is the same with the coffee counter employee.
Accordingly, causation is not established by the plaintiff and the plaintiff's case must fail.