Reasonably perfect – an occupier’s duty of reasonable care

On Sunday 25 November 2012, Ms Colleen McQuillan slipped and fell on a grape in the fruit and vegetable section of the Woolworths supermarket at Leichhardt. This occurred approximately 6 minutes after the supermarket opened for business that day at 10am. Ms McQuillan commenced proceedings in the District Court of NSW against Woolworths Limited (Woolworths) as the operator and occupier of the supermarket, claiming damages for injuries sustained.

The case proceeded to hearing before Justice Maiden SC on the separate question of liability. His Honour found that the presence of the grape on the floor was more likely the result of activities of Woolworth’s staff prior to the supermarket opening and had been overlooked in the activity occurring in preparation for the store opening for business. His Honour found that all training provided to staff was appropriate and that there was no evidence that the system of cleaning and inspection of the supermarket could be improved. However, it was held that there was no evidence as to whether the pre-opening inspection had been conducted as per the system. His Honour found that there was no one specifically assigned to the produce area from 10am to the time of Ms McQuillan’s fall and had there been a person so assigned, based on the training given, the risk of grapes on the floor would have been identified. His Honour found in favour of Ms McQuillan and awarded her the agreed sum of $151,000 plus interest and costs.

Appeal:

Woolworths appealed this decision on six grounds, including:

1. that his Honour erred in reaching his findings, as the onus of proof was reversed;
2. that the grape was on the floor prior to the opening of the supermarket and;
3. that Woolworths failed to take reasonable precautions against the risk of patrons slipping.

Woolworths further submitted that:

1. a single grape on the floor in the produce section of a supermarket is insufficient to establish want of reasonable care and resulting breach of duty;
2. Failure to identify a single grape on the floor was insufficient to establish that there was not “a proper lookout”; Woolworths’ duty required reasonable care, not perfection.
3. It was equally likely that a customer had caused the grape to be displaced in the period between the supermarket opening and the incident;
4. The primary judge erred, as what could not be seen in CCTV footage was relied upon as evidence that Woolworths’ staff were not present in the produce area at a particular time.
5. The Primary Judge did not make any findings as to what reasonable care required, in relation to the minimum method or frequency of inspections by staff working in the produce area. As his Honour found that all training provided to staff was appropriate and that there was no evidence that the system of cleaning and inspection of the supermarket could be improved, Woolworths submitted that his Honour’s ultimate finding was consistent with no negligence. It was submitted that any finding of negligence by Woolworth’s staff required keeping a “perfect lookout”, rather than exercising reasonable care to keep a “proper lookout” for potential hazards on the floor.

Findings:

The Court of Appeal considered whether a reasonable person in Woolworths position would have taken any additional precautions. Their findings were as follows:

1. The Primary judge’s factual finding, that the grape was displaced prior to the supermarket commencing trade was set aside. As the entirety of the area could not be seen within the footage, the CCTV footage was not determinative of whether staff were present or not.
2. The primary judge drew a Jones v Dunkel inference against Woolworths for failing to call the staff members shown in the CCTV footage. However, as his Honour did not accept that it was likely that the grape was dropped by one of the staff members seen in the footage, the Court of Appeal considered it unnecessary for his Honour to make that inference. It was held that the primary judge erred in drawing an inference against Woolworths for not calling the staff from the produce area and that there was no evidentiary burden on Woolworths to do so.
3. As the finding that the grape was on the floor prior to opening was to be set aside, the finding of negligence by Woolworths’ staff in the produce area prior to the supermarket opening could not stand.
4. Even if the grape had been present on the floor prior to opening, an established system of cleaning was in place and there was no evidence that there was a departure from that system.
5. A failure to observe a single grape on the floor was not a casual act of negligence.
6. It was not part of Ms McQuillan’s case that Woolworths was required to have all parts of the floor under observation for every minute that the store was open to customers. However, in effect, that was the premise of the trial judge’s finding on causation, which is inconsistent with his earlier finding that the system could not be improved.

In a unanimous judgment by Justices Gleeson, Payne and Basten, the appeal was allowed. Ms McQuillan was ordered to pay Woolworths’ costs in both the District Court and the Court of Appeal.

Post by Ashleigh Gambera and Freida Stylianou