Gomez v Woolworths Group Limited

Court of Appeal (NSW)|2024-03-21|Before: Bell CJ, Gleeson JA, Adamson JA

Primary judge's essential reasons on breach and causation

Ms Gomez's claim at trial was based on a "systems" failure case. This was a reference to the statement by Priestley JA in Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 at 249B, that: … The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence.

Woolworths' inspection and cleaning system

Mr Cheong gave evidence of Woolworths' systems of inspection and cleaning of the supermarket store comprising (i) the "sweep log" three times a day, (ii) the "clean as you go" system, and (iii) the "service zero" system of hourly calls for inspection and cleaning. His Honour made the following findings with respect to those systems at [117(9)-(11)]: As at 31 May 2021, Woolworths had three different cleaning and inspection systems in place at the Woolworths MetCentre store. The first involved a "sweep log" which involved staff walking around the store and looking whether there were any contaminants or hazards on the floor three times per day. The inspections occurred between 7am and 8am, 2pm and 3pm and 6pm and 7pm. Mostly, the sweep log inspections occurred. The second cleaning and inspection system in place as at 31 May 2021 at the MetCentre store was a "clean as you go" system. This involved personnel who were working keeping everything clean and tidy as they worked such as picking up cardboard boxes and items from the floor. The third system in operation at the store was the "service zero" system. Every hour while the store was opened, the term "service zero" was called over the public address system by a member of the staff. At that time, members of the staff in the store were meant to stop what they were doing and look around and find any hazards, including slip hazards, on the floor such as foreign objects. In doing so, staff were not meant to leave where they were standing to inspect their whole department area. Not all "service zero" announcements were made when they were supposed to be made. Sometimes they were delayed or did not occur.
In his report, Mr Wagstaffe described his understanding of the "clean as you go" system in somewhat wider terms that Mr Cheong. Mr Wagstaffe's understanding that "all employees are instructed to inspect the floor surface as they walk through their work area and between work areas, if they need to leave one and work in another", seems to have been derived from the affirmative plea in Woolworth's defence (par 12) that the reasonable precautions it says it took in the circumstances included the instruction to all staff to keep a constant lookout for spillages on the floor.
With respect to the implementation of these systems on 31 May 2021, his Honour made the following findings at [117(12)-(18)]: On 31 May 2021 at 4:05pm Ms Pedron, Customer Service Team Manager at the store, inspected the front of store area and found it to be "clean and clear" before leaving the store. Ms Pedron did not give evidence in the proceedings. Why she left the store is not known. There is no satisfactory evidence that a "service zero" announced inspection occurred either at 4pm or 5pm or between 4:05pm and the time of the plaintiff's accident at 5:11pm. The video evidence negates there being an inspection at around 5pm. At about 5:02pm, an unidentified customer entered the supermarket after descending the escalators and dropped a piece of fruit, apparently a piece of mango, at the front of store area just inside the entrance to the store. In the several minutes after this, various customers entered and exited the store and some of them stepped on the mango squashing part of it and smearing it on the floor. This occurred on a green sign asking customers to keep their distance which was on the floor of the store at the entrance area. At 5:03pm Mr Justin Cheong, the Assistant Store Manager at the MetCentre store, concluded his work and left the store via the front of store area. He was no longer on duty. He stood near the mango on the floor looking at his phone for a period of time before leaving. Soon after leaving, he came back for one minute. It is unclear why he came back. At 5:11pm the plaintiff descended the escalators and slipped on the piece of mango, landing on her right knee and injuring it. Thereafter staff assisted her, an ambulance was called and the plaintiff was taken to the Sydney Hospital for treatment. No staff member at Woolworths had seen the piece of mango whether as originally dropped or as smeared before the plaintiff slipped on it. The person serving in the coffee takeaway area of the defendant's store about five metres from the green sign where the piece of mango was dropped was responsible for inspecting the front of store area from their workstation when "service zero" was announced. No other person had the direct responsibility for inspecting the busy front of store area except during the thrice daily sweeps.

Risk of harm

Addressing s 5B(1) of the Civil Liability Act, his Honour found that the risk of harm was 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 cleared from the floor by the owner-operator of the supermarket: at [131]. There is no challenge to this finding.
As to whether Woolworths was negligent in failing to take precautions against the identified risk of harm, his Honour found that the risk of harm was clearly foreseeable, not insignificant, that a reasonable person in the position of Woolworths would have taken the inspection and cleaning precautions referred to at [19] below, and that there was a risk of serious harm if those precautions were not taken: at [141(a)-(f)]. His Honour further found that there was not a significant burden on Woolworths in taking those inspection and cleaning precautions, the social utility of the activity that creates the risk of harm was that it was important that customers have safe access to a shopping supermarket to look at and obtain goods before purchasing them, and that the risk of injury by tripping or slipping in the circumstances indicated is obvious: at [141(h)-(i)].
The reasonable inspection and cleaning precautions which his Honour found at [141(e)] that a reasonable person in the position of Woolworths would have taken were: 1. the adoption and implementation of the three-cleaning systems Mr Wagstaffe outlined in his expert report and which Mr Cheong explained being (i) the "clean as you go" approach, (ii) the "service zero" reminder calls on the hour, and (iii) the daily sweep log; 2. taking reasonable steps to ensure that these inspection and cleaning systems occurred, and were enforced by management; and 3. a further inspection of the entrance area to the store, in the light of its busy use, at least on the hour as part of the "service zero" inspection.
His Honour concluded at [141(j)]: 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.

Breach of duty

His Honour found at [142] and [149] that there was a breach of duty of care by Woolworths for two reasons.
First, Woolworths did not take reasonable steps to enforce and to ensure that the "service zero" system of inspection and cleaning occurred on the hour. Specifically with regard to 31 May 2021, (i) the inspection did not occur at 5:00 pm, (ii) there was no evidence that it had occurred at 4:00 pm that day, and (iii) there was no satisfactory evidence that the coffee-counter staff member had undertaken any "service zero" inspection from their workstation of the store entrance area at 5:00 pm or any time thereafter.
Second, no person was allocated by Woolworths to undertake an additional closer inspection on the hour of the front of the store area.
Addressing the additional breaches of duty alleged by Ms Gomez, his Honour rejected the submission that each of Mr Cheong, the coffee-counter person, and "Stanley" should reasonably have seen the piece of fruit on the green sign before Ms Gomez slipped on it and taken reasonable steps to ensure that the area was clean. His Honour said of this alleged breach at [144]: Having considered the matter carefully in the light of the footage evidence, in my view I am unable to make those findings. The fruit, although obvious on the footage 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 footage 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).
His Honour also rejected the submission that there should have been an inspection of the front of the store area on a far more regular basis than under the "service zero" system or as part of the "clean as you go" system. His Honour said of this alleged breach at [146]-[148]: 1. there was no requirement for constant inspection (and none was pleaded by Ms Gomez), nor more frequent inspection since the front of store area, although busy, was not an area such as a food court or an area where liquids or produce, including grapes and other pieces of fruit, was stored or available for inspection (at [146]); 2. that hourly "periodic cleaning inspection was a sufficient precaution", which was the view of the expert, Mr Wagstaffe (at [148]); and 3. a system of inspection and cleaning which would have resulted in inspection and cleaning between 5:02 pm and 5:11 pm on the day of the accident was not a reasonable precaution for Woolworths to take (at [148]).

Causation

Turning to causation, after referring to the statutory statement in s 5D of the Civil Liability Act, the onus of proof in s 5E, and the leading High Court authorities (Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5 at [18]; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16]-[19]), his Honour observed at [155] that the breaches of duty as found raised significant issues as to causation. His Honour concluded that causation was not established, and Ms Gomez's case must fail giving the following reasons at [155]-[158]: 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 footage 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.

Issues on appeal

The two issues on appeal are whether the primary judge erred in not finding additional breaches of Woolworths' duty of care to Ms Gomez (ground 1) and also erred in finding that causation of damage had not been established (ground 2).

Ground 1: alleged additional breaches of duty

Ground 1 is directed to Ms Gomez's claim based on a "systems" failure case with respect to the "clean as you go" system.
Ground 1(a) contends that his Honour should have found additional breaches of Woolworths' duty of care, relevantly, that both Mr Cheong and Stanley should have inspected the front of store area as part of the "clean as you go" system when they were in close proximity to the piece of fruit after it had been dropped and before Ms Gomez slipped upon it.
Ground 1(b) contends that his Honour erred in finding that the piece of fruit was only obvious on a closer inspection, or implicitly, that it was difficult to detect. It is said that had there been the inspections required to satisfy the duty of care the piece of fruit would have been detected and removed.
Ground 1(c) contends that his Honour erred in finding that Stanley had no responsibility to inspect the front of store area. It is said that his Honour should have found that Stanley ought to have inspected that area, as part of the "clean as you go" system, when he was in the immediate vicinity and, had he done so, the contaminant ought to have been easily detectable.
Success on this ground depends on several challenges to his Honour's factual findings.

Whether Mr Cheong should have inspected the front of store area as part of the "clean as you go" system

It is said that his Honour erred in finding at [144] that there was no obligation on the part of Mr Cheong to inspect the front of store area as he had finished his duties at the store and was leaving (see [24] above), and that he should have found that Mr Cheong did have such an obligation as part of the "clean as you go" system.
The premise of this factual challenge is that Woolworths expected its employees to implement the "clean as you go" system up to the time they left the premises, notwithstanding that they had finished work and were no longer on duty. Woolworths says that this premise is unwarranted.
The evidence is as follows: 1. Mr Cheong left the store via the front of store escalators at 5:03 pm; the CCTV footage shows that he was looking at his mobile phone as he left the store, consistent with him being off duty, as he said in his evidence; 2. he briefly re-entered the store at 5:05 pm; the CCTV footage shows that he cut across the two security barriers at the entrance and did not walk across the green decal sign on the entrance floor; and 3. he exited the store via the front of store escalators at 5:06 pm; the CCTV footage shows him putting his earphones in, again consistent with him being off duty.
There is no challenge to his Honour's finding based on this evidence (see [16] above), that Mr Cheong had concluded his work and was no longer on duty when he left the store at 5:03 pm via the front of store area. This finding also applies to Mr Cheong's re-entering and exiting the store at 5:05-5:06 pm.
Nevertheless, it is said that it is not to the point that Mr Cheong was no longer on duty when he left the store via the front escalators because Woolworths' employees "ought to be" subject to an obligation to observe Woolworths' inspection and cleaning systems whilst on the premises even though they had finished work. This submission relies upon an asserted analogy with the vicarious liability of an employer for the tortious conduct or other wrongful act of its employee in the course or scope of employment.
It is said that the "negligent act of Mr Cheong in failing to inspect the front of store area and clean the piece of mango at 5:03 pm and 5:06 pm when he was in close proximity to the object, occurred in the course of, or within the scope of, his employment because he was, at those times, on his employer's premises". Reference was made to the statement by Gleeson CJ in State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [40]. There are several difficulties with this submission.
First, the systems failure case relied upon the report of Mr Wagstaffe which assumed with respect to the "clean as you go" system that Woolworths had an "expectation" that any employee moving through the supermarket "for any purpose, including leaving the premises, would continue with the 'clean as you go' floor surface inspection" (emphasis added). However, as senior counsel for Ms Gomez acknowledged in this Court, there was no evidence that Woolworths had such an expectation of its employees who were leaving the premises having finished work. Indeed, the unchallenged evidence of Mr Cheong was to the contrary. He said that once employees finished work, "[t]hey're not responsible for - and we're not allowed to work after we're clocked off and finished work, so I don't have an expectation for them to [have done something if they had seen it]".
Second, it is not to the point that the safety incident report for the accident on 31 May 2021 recorded that another Woolworths' employee, Ms Haylee Pedron, had performed an inspection of the floor of the front of store area at 4:05 pm on 31 May 2021, the "purpose" of which was described as "leaving store". This reference to the "purpose" of this inspection is ambiguous: it may refer to what Ms Pedron was doing, or to a location where people were leaving the store.
Even if it be assumed, favourably for Ms Gomez, that this reference should be read as "Ms Pedron inspected the floor of the front of store area when she left the store", it does not follow that an inference should be drawn that Woolworths had an expectation of all employees that they would implement the "clean as you go" inspection whilst on the premises, once they had finished work and were no longer on duty. As Mr Cheong explained in his evidence, there is a distinction between (a) an employee who has finished work alerting another staff member to a hazard detected on the floor as a personal moral duty, and (b) employees not being subject to any duty or obligation to implement inspection and cleaning systems once they have finished work.
Third, the asserted analogy with the vicarious liability cases is inapt. The statement by Gleeson CJ in Lepore at [40] that the fact that a negligent act of an employee occurs "outside normal work hours" is not conclusive against (vicarious) liability, has no application to a negligence claim based on a duty of care owed by the occupier of premises to an invitee. Whereas the "employer's [vicarious] liability is not based on breach of any personal duty that the employer owed, but on the employee's tort being imputed to the employer": Fleming's The Law of Torts (11th ed, 2024, Thomson Reuters) at [17.20], Mr Cheong did not personally owe a relevant duty of care to Ms Gomez. Counsel for Ms Gomez frankly acknowledged that he could not point to any authority that supported the proposition contended for by analogy with the vicarious liability cases.
CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 410 ALR 479, another vicarious liability case, does not assist Ms Gomez. In Schokman, the joint judgment observed at [15] that the identification of what the employee was employed to do is central to "this issue" of the vicarious liability of an employer for the tortious conduct or other wrongful act of its employee. Whilst that statement has no direct application to the present case, as indicated, (i) there is no evidence that Woolworths' employees were expected to implement the "clean as you go" floor surface inspection after they had finished work and were no longer on duty when leaving the premises, and (ii) there was evidence from Mr Cheong that "we're not allowed to work after we're clocked off and finished work".
Nor does Mannall v Howard (No 2) [2019] ACTSC 113; (2019) 89 MVR 50 at [98] (Mossop J) assist Ms Gomez. That case is distinguishable on its facts as the relevant breach of duty involved the driving of a motor vehicle by an employee outside of work hours, but on the employer's premises. The vicarious liability of an employer for the negligent driving of its employee in those circumstances says nothing of the duty of care owed by an occupier of premises to an invitee.
Fourth, contrary to Ms Gomez's submission, coherence in the law does not require that the employee's contractual obligations to his employer to implement the employer's systems of inspection and cleaning of the premises have the same temporal element as an employer's vicarious liability for the tortious conduct or other wrongful act of its employee in the course or scope of employment: cf Lepore at [40].
Fifth, even on Mr Wagstaffe's understanding of the Woolworths "clean as you go" system, which was wider than that described by Mr Cheong in his evidence (see [14] above), Mr Cheong was not leaving one area of the store to work in another when he left the premises at 5:03 pm and again when he briefly re-entered and exited a few minutes later at 5:05-5:06 pm; he was leaving the premises as he had finished work and was no longer on duty, and that remained the position when he briefly returned and again exited the premises a few minutes later.

Whether Stanley was responsible for the checkout area, not the front of store area.

It is said that the primary judge erred in finding that Stanley was responsible for the checkout area, not the front of store area (at [144]), and that his Honour should have found that Stanley had an obligation to inspect the front of store area. According to the submission, the finding concerning Stanley's responsibilities could not be correct having regard to Mr Cheong's evidence of his expectations of Stanley.
This submission reads out of context Mr Cheong's evidence of his expectation of Stanley that "he would have cleaned it up or notified someone to clean it up", which was subject to the qualification "if Stanley had seen it". That was not an acceptance by Mr Cheong that Stanley's area of responsibility extended beyond the checkout area; rather it was a recognition by Mr Cheong of the instruction by Woolworths to all staff to keep a constant look out for spillages on the floor, as admitted by Woolworths in its defence.
Mr Cheong gave unchallenged evidence that Stanley was responsible for the checkout area and that his area of responsibility ended near the "red" umbrella stand, shown in the screenshot at [9] above. It was well open to his Honour to accept that evidence when finding at [144] in the context of the "service zero" system of inspection and cleaning that Stanley was not responsible for checking the front of store area.

Whether Stanley's line of sight enabled him to see the fruit as part of his duties

It is said that the primary judge erred in finding, with respect to the "clean as you go" system, that (i) the fruit on the floor of the front of store area was outside Stanley's area of responsibility, and (ii) it is not clear on the footage that his line of sight enabled him to see the fruit as part of his duties: at [156]. It is said that his Honour should have found that the front of store area was within Stanley's responsibilities as part of the "clean as you go" system, that he should have undertaken an inspection of that area, and had he done so he would have detected the piece of mango.
This factual challenge raises two issues. First, whether Stanley was obliged to inspect the floor of the front of store area as part of the "clean as you go" system when he walked down the checkout area in the direction of the front of store area at about 5:09 pm; and second, the proper inference from what is shown on the CCTV footage.
As to the first matter, it is said that there is a disconnect in his Honour's reasons between the evidence of Mr Wagstaffe and the evidence of Mr Cheong concerning the "clean as you go" system. This was a reference to Mr Wagstaffe's description of this inspection and cleaning system in wider terms than that of Mr Cheong (see [15] above). The difference in the evidence of Mr Wagstaffe and Mr Cheong can be reconciled as follows.
On Mr Cheong's evidence, which the primary judge accepted, the "clean as you go" system did not impose upon Stanley an obligation to inspect the front of store area for hazards created by others when he walked down the checkout area in that direction at 5:09 pm; that was because Stanley did not create any hazard. Nevertheless, Woolworths accepted that hazards not created by employees themselves were addressed by the "sweep log" inspections three times a day, by the hourly "service zero" inspections, and by the instruction to all staff to keep a constant lookout for spillages on the floor, as pleaded in its defence. There is no material difference between the instruction by Woolworths to all staff to keep a constant lookout for spillages on the floor, which Stanley was required to implement, and to do so competently in the performance of his duties, and Mr Wagstaffe's wider description of the "clean as you go" system that all employees are instructed to inspect the floor surface as they walk through their work area and between work areas.
As to the second matter, the evidence and relevant findings are as follows. At about 5:09 pm, Stanley is depicted on the CCTV footage walking down the checkout area in the direction of the front of store area; he stops and looks up and to his right and then returns back down the checkout area. Counsel for Woolworths successfully objected to cross-examination of Mr Cheong directed to eliciting an admission that if Stanley had looked in the direction where the mango was on the floor of the front of store area, it is likely he would have seen it.
In this Court, the parties diverged as to (i) where Stanley stopped when he walked down the checkout area in the direction of the front of store area, and (ii) whether, at the point at which he stopped, Stanley had an unobstructed view of the front of store area where the mango had been dropped on the floor. Ms Gomez submits that Stanley walked beyond the umbrella stand to a position adjacent to the wet umbrella cover machine shown in the screenshot at [9] above, and that he had an unobstructed view of the area where the mango was dropped on the floor. Woolworths submits that Stanley walked to somewhere between the umbrella stand and the wet umbrella cover machine and disputed that Stanley had an unobstructed view of the area where the mango was dropped on the floor.
Whilst the Court has the benefit of contemporaneous CCTV footage, it is necessary to bear in mind the warnings expressed by this Court that judges must exercise great caution when interpreting CCTV footage, and that the quality and clarity of the images is important: QBE Insurance Australia Limited v Orcher [2013] NSWCA 478 at [23] (Tobias AJA, McColl and Macfarlan JJA agreeing); Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [96] (Beazley P, Meagher JA agreeing; Leeming JA agreeing with additional reasons at [217]-[224] in relation to photographic evidence).
Further, insofar as Ms Gomez challenges the inference the primary judge drew from the CCTV footage, the standard for appellate intervention, as pointed out in QBE v Orcher at [20], is that in Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9. The appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from the CCTV footage. Of course, the appellate court gives respect and weight to the conclusions of the trial judge but will give effect to its own views if it concludes that the trial judge was in error, and if the trial judge's analysis is flawed, that will diminish the weight to be given to his or her conclusions: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [58] (Sackville AJA).
Having viewed the CCTV footage (Ex B) which was played in Court, the proper inference to be drawn is that Stanley walked down the checkout area at 5:09 pm to a position just beyond his area of responsibility, of which Mr Cheong gave evidence; that is, he walked to between the umbrella stand and the wet umbrella cover machine shown in the screenshot at [9] above. He then stopped and looked up to his right (presumably to the self-service machines, which are out of view in the screenshot), and then turned and walked back down the checkout area.
On the basis that the position where Stanley stopped was "some two or three metres" from where the mango had been spilt on the floor, as Mr Cheong accepted in cross-examination, it does not follow that the primary judge erred in finding (a) that he could not conclude from the footage that the piece of fruit was within Stanley's line of sight (at [144]), or (b) that it is not clear from the CCTV footage that Stanley's line of sight enabled him to see the fruit as part of his duties (at [156]).
Accepting that Stanley was required by the instruction to all staff to keep a constant lookout for spillages on the floor, I am not persuaded that the proper inference from the CCTV footage is that if Stanley had maintained a constant lookout for spillages on the floor as he walked down the checkout area at 5:09 pm before stopping between the umbrella stand and the wet umbrella cover machine, he should have detected the piece of mango on the floor of the front of store area. I agree with his Honour that it cannot be concluded from the CCTV footage that the piece of fruit was in Stanley's line of sight. In reaching this view, I take into account that Stanley's view of the front of store area was impeded by: 1. the volume of customers entering and exiting the front of store area and walking over the green sign where the piece of mango had been dropped; 2. the distance of "some two or three metres" between the point at which Stanley stopped and turned when walking down the checkout area, and the piece of mango on the floor of the front of store area; and 3. the location of the piece of mango on the green sign on the floor at 5:09 pm, relevantly, near the letter "p" in the phrase "… 1.5m apart", as shown in screenshots in Figures 5 and 6 of Mr Wagstaffe's report.
The challenge to the primary judge's assessment of Stanley's line of sight to the piece of mango on the floor of the front of store area should be rejected.

Whether the piece of fruit was only obvious on a closer inspection

Ground 1(b) is directed to the finding at [144]: The fruit, although obvious on the footage in hindsight when you know it was there, was not of a nature to be readily ascertained except on a closer inspection.
The factual challenge ignored the context of this finding: having rejected the contention that either Mr Cheong, Stanley, or the coffee-counter person should have detected the piece of mango at the front of store area, the primary judge observed that the need for a closer inspection to detect the piece of mango on the floor underscored the importance of the reasonable precaution which his Honour found should have been taken by Woolworths with respect to the extended "service zero" system in the front of store area. This finding was based on an inference drawn by his Honour having viewed the CCTV footage with the acknowledged benefit of hindsight as to the location of the piece of mango. There is no error in this finding.
Ground 1 is not made out.

Causation: ground 2

The principles governing the determination of causation are set out in s 5D of the Civil Liability Act. Proof of causation involves two distinct steps: the first is the factual question as to the cause of the particular harm (factual causation), and the second is a normative question as to whether the tortfeasor should bear legal responsibility for that harm (scope of liability). The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E.
The test of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation (Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [55]), being whether, on the balance of probabilities, the harm that in fact occurred would not have occurred absent the tortfeasor's negligence: Strong v Woolworths Ltd at [18]; Wallace v Kam at [16]. There is no issue in this case concerning the scope of liability under s 5D(1)(b).
Given the conclusion on ground 1 that the asserted additional breaches of duty by Woolworths have not been established, the negligence in question, as found by his Honour, is the failure by Woolworths (1) to ensure that the "service zero" system of inspection and cleaning occurred on the hour, and (2) to ensure that as part of the "service zero" system of inspection and cleaning, a staff member inspected the front of store on the hour.
To succeed in her case of negligence against Woolworths, it was necessary for Ms Gomez to establish on the balance of probabilities that, but for Woolworths' failure to take the precautions as found by his Honour, Ms Gomez would have avoided the injury and the adverse consequences of the injury: Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [36] (French CJ, Kiefel and Keane JJ).
The determination of "factual causation" involves a hypothetical comparison between what actually happened and what would have happened if there had been no negligent act or omission: Williams v Fraser [2022] NSWCA 200 at [48] (Simpson AJA, Macfarlan and Gleeson JJA agreeing), citing Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 at [113] per Hayne J (in dissent as to the outcome but uncontroversial as to this proposition: see Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [126] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ)).

Ground 2(a)

Ground 2(a) contends that his Honour ought to have found that the failure to implement the "clean as you go" system was causative of Ms Gomez's injuries.
It is said that whilst his Honour was correct to find in relation to the "service zero" system that there should have been another person, other than the coffee-counter person, dedicated to inspecting the front of store area, his Honour should also have found that another person, other than the coffee-counter person, should have been assigned to the front of store area for the purposes of the "clean as you go" system, because this system could not have been implemented by the coffee-counter person.
Insofar as the submission asserts that Mr Cheong and/or Stanley failed to implement the "clean as you go" system, it is answered by the rejection in ground 1 of the factual challenges relating to the "clean as you go" system.
Insofar as this ground relies upon Mr Wagstaffe's wider description of the "clean as you go" system again, again it is answered by the rejection of the factual challenges in ground 1. Nor was it suggested that any other identified Woolworths employee (other than the coffee-counter person, which is dealt with in ground 2(c) below) failed to inspect the floor of the front of store area under the "clean as you go" system.
The reliance by Ms Gomez on Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71 at [56] is misplaced. In Buljat, the supermarket store had been open for 6 hours and 32 minutes, there was no evidence as to how effective the inspection and cleaning system was, and the Court found the probabilities were that the grape was dropped in the earlier 5 hours and 32 minutes rather than the 1 hour immediately preceding the fall and thus, if a reasonable system would have included hourly (or more frequent) inspection, the probability is that such a system would have prevented the harm that occurred. By contrast, in this case, where the period of time which the contaminant was on the floor is known with precision, there was no relevant failure by either Mr Cheong or Stanley to implement the "clean as you go" system, and the relevant breach, as found by his Honour, was in relation to an extended "service zero" system in relation to the front of store area.

Ground 2(b)

Ground 2(b) contends that his Honour erred in failing to find that the failure of Mr Cheong and/or Stanley to inspect the front of store area was causative of Ms Gomez's injuries. This ground does not arise given the conclusions in ground 1(a) relating to Mr Cheong and grounds 1(a) and (c) relating to Stanley; neither employee of Woolworths relevantly failed to inspect the front of store area under the "clean as you go" system.

Ground 2(c)

Ground 2(c) contends that the failure of the coffee-counter employee to undertake an inspection of the front of store area was causative of Ms Gomez's injuries, and his Honour erred in failing to find that this employee should have inspected the front of store area pursuant to either the "clean as you go" system or the "service zero" inspection.
Three preliminary observations should be made in relation to this ground.
First, insofar as this ground assumes success on ground 1, that is, his Honour should have found that there was a breach of the "clean as you go" system with respect to the front of store area, that contention has been rejected for the reasons given in relation to ground 1.
Second, insofar as this ground is to be taken as referring to the existing "service zero" system, his Honour found that there was an absence of contemporaneous evidence of what the coffee-counter employee's field of sight and quality of sight was at the time of the accident (at [144]). There is no error in that finding which is supported by the proper inference from the contemporaneous screenshots in Mr Wagstaffe's report and the CCTV footage. That inference is that there were impediments to the line of sight between the coffee-counter and the front of store area, given (i) the large volume of customers entering and exiting the store around 5:00 pm, whose presence obstructed the view from the coffee-counter to the floor of the front of store area, and (ii) the placement of the hand sanitiser stand between the coffee-counter and the front of store area, as appears in Figures 13-18 of Mr Wagstaffe's report.
Third, insofar as this ground is to be taken as referring to the extended "service zero" system, the causation argument is to be assessed having regard to his Honour's finding that Woolworths failed to take the reasonable precaution of allocating a person, other than the coffee-counter person, to inspect the front of the store area as part of the "service zero" system of hourly calls for inspection.

Extended "service zero" hourly inspection of the front of store area

The essential difficulty with the causation argument is one of timing: the piece of mango was dropped on the entrance floor after 5:00 pm and before the next "service zero" call which the system required be made at 6:00 pm. In Brady, McHugh J observed at [256]: … It is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury.
Acceptance of the causation argument assumes breach of a system of hourly inspection of the front of store area by a person, other than the coffee-counter person, occurring sometime between 5:02 pm and 5:11 pm on the day of the accident. But that is not the "service zero" hourly inspection system which his Honour found was a reasonable precaution by Woolworths, nor was it a matter which Mr Wagstaffe addressed in terms in his report.
Ms Gomez sought to address the timing issue by pointing to Mr Cheong's evidence that the "service zero" calls were "sometimes missed or they're late, but would mostly be called", "generally, they would call it a bit late. It may not be by the hour". It is said that an inference should be drawn about what would have happened but for the omission of the "service zero" hourly call at 5:00 pm on 31 May 2021, namely, that it is more likely than not that this particular hourly call would have been made sometime after 5:02 pm and before 5:11 pm, rather than at or about 5:00 pm before the piece of mango had been dropped on the floor. There are several difficulties with this approach to causation.
First, at a factual level, there was no exploration in cross-examination of Mr Cheong of what was meant by his description of the "service zero" call as "a bit late". The suggested inference referred to in the preceding paragraph is speculative.
Second, accepting that the breach found by his Honour involved the failure to implement an extended "service zero" hourly inspection of the front of store area, the relevant counterfactual for the purpose of causation was what would have happened if a "service zero" inspection had been extended to the front of store area at 5:00 pm by an allocated employee, other than the coffee-counter person. As Hayne J said in Chappel v Hart at [113]: … It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.
However, Ms Gomez contends for a different counterfactual: that Woolworths breached its duty to take reasonable precautions by implementing the extended "service zero" inspection of the front of store area at 5:00 pm, and that Woolworths should have called the "service zero" inspection sometime later, between 5:02 pm and 5:11 pm.
Woolworths correctly submits that acceptance of this causation argument would turn a system of reasonable precautions involving hourly inspections as part of the "service zero" calls, into a precaution that requires inspection of the floor surface for at least 10 to 15 minutes on the hour, to achieve the causation result that Ms Gomez seeks in this case. As indicated, that is not the relevant precaution which his Honour found Woolworths was required to take to address the identified risk of harm; it is some other precaution but not a reasonable precaution as found by his Honour.
Third, a related difficulty with the causation argument is that it applies hindsight reasoning to identify something which may have prevented this particular incident occurring, not the prospective identification of a reasonable precaution, as found by his Honour.

"Clean as you go" system

For completeness, the causation argument based on the "clean as you go" system will be addressed briefly, notwithstanding that there was no finding by his Honour of any relevant breach of this system of inspection and cleaning by Woolworths.
It is said that Mr Cheong gave evidence that the coffee-counter employee had duties under the "clean as you go" system and that there was no evidence of any inspection being undertaken by that person in the nine minutes after the piece of mango was dropped. This submission (a) misunderstands Mr Cheong's evidence, (b) ignores his Honour's finding at [144], and (c) is based on the incorrect counterfactual.
As to (a), whilst Mr Cheong agreed in cross-examination that as part of their duties "as clean as you go" the coffee-counter person would be responsible for checking the floor area at the entrance and exit, that answer must be read in the context of Mr Cheong's description of the "clean as you go" system which was "dependent on where you're working as to what you do as a staff member" and is based on "generally, where you're working at the time". There was no evidence that the coffee-counter person left the coffee-counter between 5:02 pm and 5:11 pm and moved to the front of store area where the piece of fruit had been dropped on the floor.
As to (b), his Honour found at [144] that whilst a photo was in evidence showing the coffee-counter, taken the following year upon an inspection of the store 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". As indicated, there is no error in that finding.
As to (c), accepting that there was no evidence that the coffee-counter person moved from the coffee-counter area to the front of store area during the nine-minute period before Ms Gomez's accident, there was no relevant occasion for the coffee-counter person to have detected the piece of mango on the floor of the front of store area under the "clean as you go" system as described by Mr Cheong, or in performance of the instruction to keep a constant lookout for spillages.
Ground 2 has not been made out.

Conclusion and Orders

The appeal has failed. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs.
ADAMSON JA: I agree with Gleeson JA.

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: 22 May 2024

Solicitors: Emanuel Refenes Solicitor (Appellant) Meridian Lawyers (Respondent) File Number(s): 2023/226954 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2023] NSWDC 221 Date of Decision: 21 June 2023 Before: Dicker SC DCJ File Number(s): 2022/77986

HEADNOTE [This headnote is not to be read as part of the judgment] On 31 May 2021 at approximately 5:11 pm, the appellant, Ms Gomez, slipped and fell on a piece of fruit on the floor at the entrance to the MetCentre Woolworths store in Sydney. Having suffered personal injury as a result of the slip and fall, she commenced damages proceedings against Woolworths as the occupier of the store. Woolworths conceded that it owed Ms Gomez a duty of care, and admitted that a piece of fruit was dropped on the floor by a customer at approximately 5:02 pm. However, Woolworths denied that it breached its duty of care, and argued that it had taken reasonable precautions by way of a system of inspection and cleaning of the store which included (i) hourly floor inspections called the "service zero" policy, and (ii) a "clean as you go" system, which required all employees to tidy up as they worked in an area. Woolworths also admitted in its defence that all employees were instructed to keep a constant look out for spillages on the floor. Woolworths conceded that the "service zero" hourly inspection was not carried out at 5:00 pm on 31 May 2021. In the District Court, the primary judge held that Woolworths' failure to conduct a "service zero" inspection at 5:00pm on 31 May 2021 was a breach of its duty of care, and further, Woolworths' failure to ensure that the hourly "service zero" system included that a staff member inspect the front of store area was a breach of duty. However, his Honour held that, even if the "service zero" system was complied with and a floor inspection of the front of store was carried out at 5:00 pm on 31 May 2021, Ms Gomez's injuries would not have been prevented. He found that causation was not made out, and dismissed Ms Gomez's claim. Ms Gomez appealed. The key issues on appeal were: 1. whether the primary judge ought to have found additional breaches of duty owed by Woolworths under the "clean as you go" system, relevantly, the failure of two employees to identify and remove the fruit on the floor of the front of store area between 5:02 pm and 5:11 pm; and 2. whether the primary judge erred in failing to find that the breaches of duty, as found by his Honour, and the additional pleaded breaches, were causative of Ms Gomez's injuries. Both issue (1), alleging additional breaches of duty, and issue (2), alleging causation of injury, involved challenges to the primary judge's factual findings. Gleeson JA (Bell CJ and Adamson JA agreeing) held, dismissing the appeal: 1. The primary judge did not err in failing to find that two employees, Mr Cheong and "Stanley", should have inspected the front of store area as part of the "clean as you go" system. Mr Cheong was not required to comply with the "clean as you go" system at the relevant time, because he had completed his shift and was off duty at the time he left the store via the front entrance. State of New South Wales v Lepore (2003) 212 CLR 511; CCIG Investments Pty Ltd v Schokman [2023] HCA 21; Mannall v Howard (No 2) [2019] ACTSC 113, distinguished. As to Stanley, the primary judge was correct in finding, taking into account the CCTV footage, that (a) the area where the fruit was dropped was out of Stanley's area of responsibility, (b) the piece of fruit was difficult to detect, and (c) it is not clear on the evidence that Stanley's line of sight enabled him to see the fruit. QBE Insurance Australia Limited v Orcher [2013] NSWCA 478; Goode v Angland (2017) 96 NSWLR 503, applied. 1. There was no error by the primary judge in failing to find that the employee responsible for the coffee-counter area should have inspected the front of store area pursuant to either the "clean as you go" system or the "service zero inspection". Woolworths' breach of duty in not complying with the "service zero" system was not causative of Ms Gomez's injuries. Even if Woolworths had complied with that system of inspection and cleaning, by conducting a "service zero" inspection at 5:00 pm on 31 May 2021, Ms Gomez would still have slipped and fell, since the fruit was dropped at 5:02 pm. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Badenach v Calvert (2016) 257 CLR 440; Williams v Fraser [2022] NSWCA 200, applied. Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71; Strong v Woolworths Ltd (2012) 246 CLR 182, distinguished.

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