Plaintiff Unable to Prove Big W Slip Up
On 2 November 2010 the New South Wales Court of Appeal overturned a finding against Woolworths Limited in a slip and fall case.
Kathryn Strong sued Woolworths and the owner of the Centro Taree Shopping Centre for damages for injuries she sustained on 24 September 2004. She had been shopping at the Centre’s Big W store when the incident occurred.
Big W conducted “sidewalk sales” and had 2 large pot plant stands outside its store, which created a corridor entry. The plaintiff, who years earlier had undergone a partial leg amputation, was using crutches to help her walk. As she approached the store she went to look at the pot plant stand. Unfortunately one of her crutches slipped on a greasy item on the floor (alleged to be a hot chip) and she was injured.
Woolworths led evidence at trial that its staff at the Big W store would keep a lookout for spillages, and then contact the Centre cleaning staff should cleaning be required. However the Centre cleaning staff were under the impression that it was not their role to clean the sidewalk sales area and they would not check that area for hazards.
The trial judge found that Woolworths was liable in negligence but dismissed the claim against the shopping centre owner. The Court of Appeal upheld Woolworths’ appeal against that judgment. In particular it said:
Significance
This case is a good reminder that:
Kathryn Strong sued Woolworths and the owner of the Centro Taree Shopping Centre for damages for injuries she sustained on 24 September 2004. She had been shopping at the Centre’s Big W store when the incident occurred.
Big W conducted “sidewalk sales” and had 2 large pot plant stands outside its store, which created a corridor entry. The plaintiff, who years earlier had undergone a partial leg amputation, was using crutches to help her walk. As she approached the store she went to look at the pot plant stand. Unfortunately one of her crutches slipped on a greasy item on the floor (alleged to be a hot chip) and she was injured.
Woolworths led evidence at trial that its staff at the Big W store would keep a lookout for spillages, and then contact the Centre cleaning staff should cleaning be required. However the Centre cleaning staff were under the impression that it was not their role to clean the sidewalk sales area and they would not check that area for hazards.
The trial judge found that Woolworths was liable in negligence but dismissed the claim against the shopping centre owner. The Court of Appeal upheld Woolworths’ appeal against that judgment. In particular it said:
- Despite her evidence that she was always extra vigilant with potential hazards on the ground, Ms Strong could not have been expected to have identified this hazard. She was not a cleaner who had the specific role of identifying and removing hazards; and
- Although her fall may have been avoided if Woolworths had put in place a reasonable system for detecting and removing slippery substances, there was insufficient evidence proving this breach more likely than not caused the harm suffered by Ms Strong.
Significance
This case is a good reminder that:
- Areas designated for “sidewalk sales” may fall within the responsibility of a particular retail outlet. Property owners, retailer managers and insurers need to be aware of the risks posed by these areas.
- A court can only draw an inference that a breach of duty (in this case the failure to put in place a reasonable system for detecting and removing substances on the floor) caused the harm complained of if it was “more likely than not” or more likely than any alternative.
- Opportunities to challenge claims arise if there is arguable evidence relevant to the presence of the substance, the period of time it had to be noticed and removed, and whether its more likely than not was the cause of the accident.