Vincent v Woolworths Ltd

Court of Appeal (NSW)|2016-02-29|Before: McColl JA, Macfarlan JA, Ward JA, Campbell J

Solicitors: Symonds Britten Chadwick Lawyers (Appellant) HBA Legal (First Respondent/Cross-Respondent) Holman Webb (Second Respondent/Cross-Appellant) File Number(s): CA 2015/142533 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 431 Date of Decision: 17 April 2015 Before: Campbell J File Number(s): SC 2010/401259; 2013/190244

HEADNOTE [This headnote is not to be read as part of the judgment] On 27 November 2008 the appellant, Ms Christine Vincent, sustained injuries to her back and knee when she collided with a shopping trolley being pushed by a customer down an aisle in Woolworths' supermarket at Narooma in New South Wales. At the time of her accident Ms Vincent was employed by the second respondent ("Counterpoint") as a merchandiser. Her job was to attend relevant supermarkets to check on and adjust product presentations to ensure that they conformed with agreed marketing strategies. To assist her to reach upper shelves, Woolworths provided her with a "safety" step of about 50 centimetres in height. During the course of her work on 27 November 2008 Ms Vincent stepped back off the step into the trolley being pushed by the customer. As was apparent from CCTV footage of the incident (and stills taken from it), Ms Vincent did not step in front of the trolley but, rather, stepped back into the rear part of it as it was passing behind her. Her hip hit the trolley and she fell heavily. Ms Vincent was one of some 150 to 200 merchandisers that Counterpoint employed to work at retail outlets throughout Australia. Ms Vincent brought proceedings in the Common Law Division of the Court claiming damages for negligence from Woolworths as the occupier of the premises and from Counterpoint as her employer. By judgment of 17 April 2015, Campbell J rejected Ms Vincent's claims and directed the entry of judgment for the respondents ([2015] NSWSC 435). Ms Vincent appealed to the Court of Appeal, challenging the primary judge's findings concerning negligence, causation and apportionment of responsibility between the respondents. Held, (by Macfarlan JA, McColl and Ward JJA agreeing), dismissing the appeal: (1) The primary judge did not err in holding that Woolworths "owed visiting merchandisers a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths operations while they were performing their work" (Judgment [18] and [28]). (2) The primary judge did not err in finding that the "risk" to be considered for the purposes of s 5B(1)(b) of the Civil Liability Act 2002 (NSW) is a risk of some appreciable personal injury, although not necessarily of the severity of that suffered by the plaintiff ([32]-[34]). (3) The primary judge did not err in declining to find that for the purposes of s 5B(1)(b) the risk of harm in the present case was "not insignificant" ([35]-[37]). It was relevant in this regard that the activity of Ms Vincent that led to her accident (namely, her getting up and down from a small step at a time when it was possible that something or someone might be passing behind her) was a commonplace activity in the performance of which occupiers of property were entitled to expect that users of it would exercise reasonable care for their own safety ([35]). (4) The primary judge did not err in finding for the purposes of s 5B(1)(c) that a reasonable person in Woolworths' position would not have taken precautions in relation to such risk of harm as existed. Evidence of common supermarket practice was relevant in this regard. Dovuro Pty Ltd v Wilkins 215 CLR 317 at [34] referred to. (5) Whilst the Civil Liability Act was inapplicable to the claim against Counterpoint as Ms Vincent's employer, application of the common law principles identified in Wyong Shire Council v Shirt 146 CLR 40 required little substantive difference in approach. (6) The fact that an employer's duty of care requires the employer to take account of the possibility of inadvertence or thoughtlessness of the employee, does not mean that the employer is not entitled to expect that the employee will exercise care in carrying out straight forward activities. Seage v State of New South Wales [2008] NSWCA 328 Glass, McHugh and Douglas, The Liability of Employers (2nd ed) at p 23 referred to.

Judgment

McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes.
MACFARLAN JA: On 27 November 2008 the appellant, Ms Christine Vincent, sustained injuries to her back and knee when she collided with a shopping trolley being pushed by a customer down an aisle in Woolworths' supermarket at Narooma in New South Wales.
At the time of her accident Ms Vincent was employed by the second respondent ("Counterpoint") as a merchandiser. Her job was to attend relevant supermarkets to check on and adjust product presentations to ensure that they conformed with agreed marketing strategies. To assist her to reach upper shelves, Woolworths provided her with a "safety" step of about 50 centimetres in height. It was referred to as a "safety" step because its use was intended to avoid workers over-reaching when stacking or re-arranging products on upper shelves.
During the course of her work on 27 November 2008 Ms Vincent stepped back off the step into the trolley being pushed by the customer. As is apparent from CCTV footage of the incident (and stills taken from it), Ms Vincent did not step in front of the trolley but, rather, stepped back into the rear part of it as it was passing behind her. Her hip hit the trolley and she fell heavily. Ms Vincent was one of some 150 to 200 merchandisers that Counterpoint employed to work at retail outlets throughout Australia.
Ms Vincent brought proceedings in the Common Law Division of the Court claiming damages for negligence from Woolworths as the occupier of the premises and from Counterpoint as her employer.
By judgment of 17 April 2015, Campbell J rejected Ms Vincent's claims and directed the entry of judgment for the respondents ([2015] NSWSC 435).
Ms Vincent appealed to this Court, challenging the primary judge's findings concerning negligence, causation and apportionment of responsibility between the respondents.
For the reasons given below, I consider that her appeal should be dismissed with costs. As neither respondent is liable to Ms Vincent, the respondents' cross-appeals concerning the primary judge's findings as to apportionment of responsibility between them and contributory negligence of Ms Vincent should also be dismissed with costs.

The evidence at first instance

In her evidence-in-chief, Ms Vincent said that immediately prior to the accident she was standing on the step with bottles of shampoo in each hand and that she subsequently stepped backwards and down with her left leg, at which point she felt an impact with her right hip, causing her to fall. She said that she did not see what she hit, nor did she hear its approach. It was implicit in her evidence that she would not have stepped back if she had known there was something behind her.
In cross-examination, she described a demonstration given to her by her employer as to how to use the step. As a result of this she understood that she was to be careful using it. She agreed that she knew that it was necessary for her to be constantly vigilant whilst working and to be careful getting up and down from the step (Transcript p 86).
She also agreed that the CCTV footage appeared to show her stepping backwards down from the step without looking to her right (from where the customer with his trolley came). However, she said that she always looked, whether she turned her head or not, because she relied upon her peripheral vision (Transcript pp 91-92). To this effect she said that while she did not turn her head to the right to look, she looked with her eyes. It is clear that the view afforded by such look, if any, was inadequate because she failed to see the trolley or the large man with a red shirt who was pushing it.
The CCTV footage shows that Ms Vincent's head was turned somewhat to her left as she was stepping down. This seems to explain why she did not see the customer with his trolley directly behind her and behind her on her right.
Counterpoint's Human Resources Officer at the relevant time, Ms Karen Hogan, gave evidence of her involvement in Counterpoint's preparation of an occupational health and safety manual. She said that those involved in preparation of the manual considered whether there were any safety risks involved in merchandisers stepping up and down from "safety" steps. She said "we did consider it. We thought it would be safe" (Transcript p 171). This evidence was not challenged although I note that this would not have been easy for Ms Vincent to do as she was the party that called Ms Hogan to give evidence.
An employee of Woolworths, Ms Joanne Freebody, who had extensive experience with use of the "safety" step at the Narooma store, gave evidence that she was unaware of any incident over the previous 20 years in which a merchandiser had collided with a shopping trolley (Transcript p 192). Furthermore, she was not aware of anyone asking for a barricade or cones to be placed around a merchandiser who was working in the supermarket (Transcript p 192).
At the hearing at first instance Ms Vincent tendered a report of Mr C G Simpson, a consulting engineer. Based upon a conversation with Ms Vincent, Mr Simpson assumed that her accident occurred "when a customer suddenly and rapidly wheeled a supermarket trolley from around the end of the aisle and then struck the Plaintiff, mid step in the hip. This caused the Plaintiff to be knocked from the stool, falling to her left" (Report p 3). This does not reflect Ms Vincent's evidence at the hearing, the CCTV footage or the primary judge's findings. As a result, Mr Simpson's conclusions are to be approached with considerable caution.
Mr Simpson took the view that, where staff or contractors were working in an "unusual" location, such as on a ladder or stool, it was necessary to draw customers' attention to those persons by means of some physical or visual barrier (Report p 7). Alternatively, he considered that there should have been an additional person standing watch to warn customers who might "suddenly appear" around the end of the aisle (p 8).

The judgment at first instance

The primary judge found the following in relation to the circumstances of the accident: "15 From the CCTV footage it is evident that the male customer was pushing his trolley down about the centre of the aisle looking at the goods displayed for sale on the shelving to his left. He was not looking at Ms Vincent who was working to his right. It is also evident that Ms Vincent did not look around before descending from the step. 16 Before stepping down from the step, the plaintiff looked to either side but did not turn her head fully either to the left or to the right to check for customers passing, pushing trolleys. Her evidence was that she did look, but without turning her head at all. As she demonstrated when giving evidence, she turned her head very slightly in each direction moving her eyes to the extremity of their range of movement in that direction as she did so (91.5 - .10T; 92.35 - .50T; 94.10 - .25T). She relied upon her peripheral vision and her sense of hearing."
His Honour rejected Woolworths' submission that its duty to Ms Vincent was a "bare" duty as an occupier of the premises. Rather, his Honour said that "the totality of the relationship between the parties, and the ability of the occupier to control the activities which are conducted on its premises" was required to be considered (Judgment [20]). He concluded that Woolworths "owed visiting merchandisers a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths' operations while they were performing their work" (Judgment [23]).
In considering breach of duty, his Honour first identified the risk of harm as "the risk of merchandisers suffering personal injury by being struck by moving trolleys pushed by customers" ([28]).
Whilst his Honour concluded that the risk of harm that he had identified was "plainly reasonably foreseeable" (Judgment [30]), he considered that "appreciable personal injury due to a collision between a merchandiser and a customer's trolley enjoys a very low probability of occurrence" ([39]) and that Ms Vincent had therefore not proved that the risk was "not insignificant" within the meaning of s 5B(1)(b) of the Civil Liability Act 2002 (NSW).
Lest he were wrong in that conclusion, his Honour said that he was not satisfied that a reasonable person in Woolworths' position would have taken any of the precautions identified by Ms Vincent ([40]), they being described by his Honour as follows: "28 … Ms Vincent says that the relevant precaution which Woolworths failed to take is the provision of a plastic barricade of the type depicted in the photograph annexed to the report of Mr Colin Simpson dated 12th May 2012 (Exhibit M); or the provision of the substantial step ladder depicted in some of the photographs in Exhibit 4; or providing a helper to keep customers clear from the merchandiser while the merchandiser was absorbed in her or his duties."
His Honour said this conclusion, although independently reached, was supported by the fact that "the system under which Ms Vincent worked on 27th November 2008 complied with the common practice and experience of supermarket operators and merchandisers throughout Australia" ([53]).
His Honour was not in any event persuaded that the taking of any of the suggested precautions would have avoided the accident. In particular, his Honour considered that the presence of a second person to direct passers-by around Ms Vincent would have been unlikely to prevent the accident as neither the customer nor his trolley ran into Ms Vincent. Rather, Ms Vincent, without looking, stepped backwards off the step into the rear part of the trolley.
His Honour then considered Counterpoint's liability, to which the Civil Liability Act did not apply as the claim against it was for work injury damages (see s 3B(1)(f)). Applying common law negligence principles and taking into account the non-delegability of an employer's duty of care, his Honour concluded: "66 Viewed prospectively, I am satisfied that reasonable care on the part of an employer justified leaving this simple task of completing a planogram [a plan of arrangement of merchandise] involving stepping onto and off a safety stool to the good sense and ordinary care of a mature aged worker. As I have already found, the risk was very unlikely to occur; if it did occur it was very unlikely to result in any actual or appreciable injury, although it was possible that a real injury could be suffered if the plaintiff fell. The question of expense, difficulty and inconvenience of taking the suggested alleviating action needs to be considered not just from the standpoint of the duty owed to the plaintiff individually, but by reference to all of Counterpoint's responsibilities to all of its employees engaged as merchandisers nationwide."
If Ms Vincent's claim against Woolworths or Counterpoint had succeeded, his Honour would not have reduced her damages for contributory negligence on her part. His Honour was not satisfied "that Ms Vincent's failure to see or otherwise perceive the close proximity of a customer with a trolley was due to other than inattention, inadvertence, or perhaps mere carelessness" ([74]), which his Honour considered did not amount to negligence.
If his Honour had found both Woolworths and Counterpoint liable, he would have apportioned responsibility as to 65% to Woolworths and as to 35% to Counterpoint, relying particularly upon "Woolworths greater capacity to control the activities occurring in its supermarket and its assumption of responsibility for the provision of equipment to Ms Vincent for the performance of her merchandising duties" ([77]).

Duty of care

In its Notice of Contention, Woolworths asserted that the primary judge "erred in finding that [Woolworths] owed a duty of care extending to taking precautions in respect to a non-employee worker stepping backwards without looking in a supermarket aisle." This did not accurately identify the primary judge's finding. Rather, it was Woolworths' assertion as to the effect of his Honour's finding.
There was in my view no error in the primary judge's identification of the duty of care in the broad terms he adopted (see [18] above). In considering whether a duty of care existed, it is appropriate to consider reasonable foreseeability, a concept fundamental to the existence of a duty of care, at "a higher level of abstraction" than at the subsequent stages of breach of duty and remoteness of damage (Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [45]). The duty for which Woolworths contends suffers from undue specificity and, by referring to the precise manner in which the accident occurred, draws on hindsight. This is impermissible in considering duty, as well as breach (as to the latter see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [65]).

Breach of duty

Ms Vincent submitted that in considering whether Woolworths breached its duty of care, the primary judge misapplied s 5B(1)(b) and (c).
Section 5B is in the following terms: "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."

Section 5B(1)(b)

In relation to s 5B(1)(b), Ms Vincent submitted that "the statutory notion [that] 'the risk was not insignificant' is directed towards the assessment of the probability of the occurrence of the risk. It is not directed to questions concerning the severity of the injury which could result from the risk" (Written Submissions, [17]).
As is evident from s 5B(2)(b), the likely seriousness of the harm is of particular relevance to the question posed by s 5B(1)(c) of whether a reasonable person in the defendant's position would have taken relevant precautions. However, that is not to say that the seriousness of the harm that might eventuate is irrelevant to s 5B(1)(b). That paragraph, as with (a) and (c), appears under a chapeau referring to "a risk of harm". The only risk that is relevant is one of "harm" being suffered. This is confirmed by s 5A which applies the Part in which s 5B appears only to claims for damages for "harm" resulting from negligence. Section 5, in turn, defines "harm" to mean "personal injury or death".
Thus, in identifying the relevant "risk of harm" for the purpose of applying s 5B, including s 5B(1)(b), some material harm must be postulated. This need not be of the severity of the harm in fact suffered by the plaintiff (see Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]) but must nevertheless be harm in a legal sense. Contrary to Ms Vincent's submissions, the primary judge said no more than this in finding that s 5B(1)(b) was not satisfied because "appreciable personal injury due to a collision between a merchandiser and a customer's trolley enjoys a very low probability of occurrence" (see [20] above).
His Honour's reference to an "appreciable" personal injury was not inapt and was not confined to injuries of the severity of those suffered by Ms Vincent. It extended to less severe injuries but excluded from consideration the non-injury causing bumps with trolleys that are an ordinary feature of supermarket shopping.
The primary judge did not therefore misconstrue s 5B(1)(b). Nor, in my view, was his application of it shown to be erroneous. His Honour referred, as was appropriate, to the principle that occupiers of property are in general entitled to expect that users of the property will exercise reasonable care for their own safety (see RTA v Dederer at [45]) and to the fact that this principle is of varying significance depending upon the circumstances of particular cases (Judgment [30]; Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]; RTA v Dederer at [46]). The principle was applicable in the present case because of the commonplace character of the activity that led to Ms Vincent's accident, namely, her getting up and down from a small step at a time when it was possible that something or someone might be passing behind her.
As Ms Vincent readily accepted in her evidence, the need for care on her part was obvious. It was unnecessary for the occupier or her employer to give her a warning as the activity was one that would be likely to be encountered as much in ordinary domestic life as in the workplace (see Seage v State of New South Wales [2008] NSWCA 328 at [31]-[38] referring to O'Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 230 and other authorities).
Bearing in mind the occupier's reasonable expectation that ordinary care would be exercised by a person using a "safety" step and the absence of evidence of any previous supermarket accident in which a person had suffered appreciable injury as a result of collision with a trolley, the primary judge's rejection of the assertion that the risk was "not insignificant" within the meaning of s 5B(1)(b) was appropriate.

Section 5B(1)(c)

The primary judge's conclusion that s 5B(1)(b) was not satisfied required the rejection of Ms Vincent's claim against Woolworths, as his Honour recognised. Ms Vincent nevertheless proceeded on appeal to challenge his Honour's rejection of her claim on the alternative basis that s 5B(1)(c) was not satisfied.
First, Ms Vincent contended that the primary judge had, for the purposes of s 5B(1)(c), underestimated the likelihood of a collision occurring and of appreciable injury resulting. This submission should be rejected for the reasons I have given in relation to s 5B(1)(b).
Secondly, Ms Vincent submitted that the primary judge erred in expressing concern "about the impact which any plastic barrier would have had on the convenience of customers accessing the aisles and the shelves near the merchandiser" (Written Submissions, [40]). I do not consider that his Honour erred in this respect, but, even if he did, the evidence before him did not justify a conclusion that there was a risk of appreciable injury that would have caused a reasonable retailer to take precautions, even if those precautions could have been taken without inconvenience. Of particular relevance in this respect was the merchandiser's plain visibility to customers and the customers' plain visibility to the merchandiser, if he or she chose to look around. Moreover, Mr Simpson's expert evidence cannot be treated as significant in light of the erroneous statement of facts that he was given.
Thirdly, Ms Vincent submitted that the evidence did not support the primary judge's finding that Ms Vincent's method of work accorded with common supermarket practice concerning the activities of merchandisers. As McHugh J stated in Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [34], "[c]ompliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently."
I reject this submission. It was a clear inference from Ms Hogan's evidence (see [13] above) that the method in which Ms Vincent was trained represented common practice throughout the extensive supermarket operations of Counterpoint. Neither barriers nor persons to assist were seen by it as necessary to be provided (Transcript p 177). Ms Vincent herself attended other supermarkets operated by Woolworths, Coles and Bunnings. None of them provided cones or barriers of any type. Nor did the evidence suggest that any of them considered the provision of an assistant to the merchandiser as essential. Moreover the evidence did not suggest that supermarket employees adopted any different practice to that of Counterpoint's merchandisers when stacking upper shelves.

Causation

As Ms Vincent's claim fails because she did not establish a breach of duty, it is unnecessary to reach a definitive conclusion on this issue. It is sufficient to say that much would of course turn on the precise type of precaution that should have been taken, if one were necessary. To the extent that any such precaution would have been designed to give customers a visual cue to Ms Vincent's presence, it is difficult to see how it could have been of significance as her presence was already obvious. Nor is it likely that the provision of a person to assist Ms Vincent would have prevented her accident. Given the ease with which Ms Vincent could have turned to see whether any customers or trolleys were behind her it seems unlikely that the assistant would have been asked to advise Ms Vincent constantly whether the way was clear for her to step down, rather than assisting in the substantive merchandising work.

Contributory negligence

Again, it is unnecessary to be definitive on this issue. However, it is difficult to avoid the conclusion, contrary to the primary judge's view, that Ms Vincent failed to take reasonable care for her own safety and was thus to a significant extent guilty of contributory negligence.

Duty of care

As noted above at [24], whether Counterpoint owed a duty of care is to be determined by reference to the common law, the Civil Liability Act being inapplicable to an employer's liability.
It was common ground that Counterpoint, as Ms Vincent's employer, owed her a duty of care of the nature described in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. In effect, this was a non-delegable duty to take reasonable care to avoid exposing her to unnecessary risks of injury, requiring methods of operation to be devised or safeguards to be provided where there was a real risk of injury, even one arising from the employee's "thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work".

Breach of duty

Supplemented by the following, the considerations relevant to the rejection of Ms Vincent's claim against Woolworths, to which the Civil Liability Act applies, lead also to the rejection of her claim against Counterpoint.
First, whilst the steps for which s 5B of the Civil Liability Act provide are inapplicable in the context of this claim, application of the common law principles identified in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 requires little substantive difference in approach. Those principles require identification of a risk of injury which, as in the case of the Civil Liability Act, involves a risk of some appreciable harm being suffered. As with s 5B, the risk is assessed to determine what, if anything, a reasonable person in the position of the defendant would do in response to the risk (at 47).
Secondly, whilst the description of the employer's duty of care given in Czatyrko requires the employer to take account of the possibility of inadvertence or thoughtlessness by the employee, that does not mean, as the authorities to which I refer in [35] above indicate, that the employer is not entitled to expect that the employee will exercise care in carrying out straight forward activities. As stated in a passage in Glass, McHugh and Douglas, The Liability of Employers (2nd ed 1979, The Law Book Company Ltd) at p 23, (quoted by the primary judge): "Simple uncomplicated operations such as the method of using his tools of trade by a tradesman could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case [of] casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised."
Thirdly, whilst the fact that an employee is to work on premises not controlled by the employer does not relieve the employer of its duty of care (see for example South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [121]), it is clear that in the present case Counterpoint gave careful attention to the practices its employees were to adopt when working in supermarkets. As noted above, in preparation of its occupational health and safety manual, specific consideration was given to whether the use of "safety" steps gave rise to a risk of injury ([13]). At least where the method by which that conclusion was reached was not challenged before his Honour, the conclusion that it did not was rightly regarded by the primary judge as relevant to the question of whether Counterpoint was in breach of its duty of care.

Causation and contributory negligence

The observations made in relation to these topics when considering Ms Vincent's claim against Woolworths are equally applicable in this context.

ORDERS

For the reasons given above, the primary judge was correct in concluding that Ms Vincent's claims against Woolworths and Counterpoint should be rejected. As a result, her appeal should be dismissed with costs, as should the cross-claims filed by the respondents.
WARD JA: I agree with Macfarlan JA.

Amendments 04 May 2016 - Minor typographical errors corrected in Catchwords and Headnote. 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: 04 May 2016

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