Telephone + trolley = trouble; a plaintiff’s contributory negligence assessed at 25% on appeal

Key Points 

• In the recent decision of Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183, the NSW Court of Appeal assessed a plaintiff’s contributory negligence at 25% because he removed one hand from his trolley to answer his mobile phone which causally contributed to his fall.

• The plaintiff’s momentary inattention was viewed by the Court as conduct which departed from what the ordinary reasonable person in his position would do.

Background

On 6 April 2014, Mr Bridge slipped and fell in a below ground carpark at Coles’ Coffs Harbour store. Coles Supermarkets Australia Pty Ltd (Coles) is a tenant of premises situated at Coffs Harbour, which included a supermarket and car parking areas (the Premises). Mr Bridge was pushing a full trolley through the underground car park to his vehicle. The surface of the car park was wet with large sections of the floor covered with water and in order to proceed to his vehicle, Mr Bridge had to walk through water. He traversed most of the way to his parked vehicle, including through a large puddle of water. After he had cleared the large puddle, he slipped in some comparatively minor water in an area where the concrete floor had a polished finish and fell onto his left side. Importantly, prior to falling, Mr Bridge received a call on his mobile phone, answered the call and continued to steer the trolley with one hand, whilst concentrating on his handset. As a result of the fall, he sustained injury to his hip which had previously been surgically replaced.
 
NSW Supreme Court
 
Mr Bridge brought an action against Coles for breach of duty of care as occupier.
Coles argued that:
 

1. It was only a lessee and was therefore not responsible for structural defects in the carpark.
2. It was not liable for Mr Bridge’s injuries because, inter alia:

• it could not have foreseen that a member of the public would slip in the localised area of smooth polished concrete;
• it would have had to test every area of the carpark in order to identify the problem; and
• the risk was obvious.

 
The trial judge found against Coles stating that:

1. The evidence established that Coles was, or ought to have been aware, that water regularly flooded the carpark in times of heavy rainfall.
2. Coles should also have been aware that the surface of the carpark was not uniform.
3. The risk was not obvious because the finish of the carpark was not uniform.
4. Coles was on notice that the carpark was dangerous. Moreover, it would have been a simple matter for Coles to have installed a non-slip surface in the form of a coating to form a walkway, bordering the thoroughfares through which vehicles travelled.
5. Coles should have made requests of the landlord to fix the problem.
6. His Honour found no contributory negligence on Mr Bridge’s behalf. He found that Mr Bridge attending to his mobile phone was merely momentary inattention and had no causal connection to the fall.

NSW Court of Appeal
 
Coles appealed on the grounds that his Honour erred in concluding that Coles breached its duty of care to Mr Bridge and also erred in finding that Mr Bridge did not contribute to his loss and damage by his own negligence.
 
The Court found that Coles was or ought to have been aware of the risk posed by the surface of the carpark when wet and that  a reasonable person would have taken the precaution of treating the surface with non-slip material and providing a pedestrian walkway.
 
In relation to contributory negligence, the 2 main lines of argument submitted by Coles were:

1. Mr Bridge was wearing thongs.
2. Mr Bridge was not paying attention, but rather was attending to his mobile phone while pushing his trolley.

Regarding the former argument, the Court found that there was nothing in relation to Mr Bridge’s footwear which constituted contributory negligence. In relation to the latter argument, the Court was of the view that the fact that Mr Bridge was only “momentarily” concentrating on his handset, did not “detract from the conclusion that a reasonable person… would not have proceeded into the carpark, while distracted by his handset, but would either have stopped or else refrained from taking the call…very many cases of contributory negligence involve momentary lapses in attention.”
 
Mr Bridge’s momentary inattention was therefore viewed by the Court as conduct which departed from what the ordinary reasonable person in his position would do. The Court noted that Mr Bridge acknowledged that “he was paying less attention than he might have been to his surroundings” and that he was aware of the risk of the surface of the car park being more slippery when wet.
 
The Court opined that when one is pushing a trolley and giving reasonable attention to that task, even if walking on a slippery surface, it is very difficult to slip and fall. This is as in addition to the ordinary balance and support of one’s feet, there is the advantage of balance and support from the hands on the trolley, which is generally moving in the same direction and at the same speed as the person. By removing one hand from the trolley when he answered his mobile phone, Mr Bridge causally contributed to his fall. The Court stated that: “his inattention and his having only a single hand on the trolley made it more likely that he could not save himself from his slip and instead would fall to the ground.” 
 
The Court held that having regard to the relative contributions of the parties to Mr Bridge’s injury, an apportionment whereby Coles bore three quarters of the responsibility for the damage, and Mr Bridge bore one quarter was just and equitable. Mr Bridge was therefore entitled to a lesser judgment that that entered on 19 December 2017 in the amount of $688,071 and was instead awarded $516,053 (being 75% of the amount earlier ordered).

Post by Ashleigh Gambera and Freida Stylianou