Was the chip still warm?

Posted by Andrew McGiffert |07 Apr 12 | 0 comments

Was the chip still warm?

In September 2004, Kathryn Strong (the appellant) suffered serious spinal injury when she slipped and fell whilst shopping at the Big W store in the Centro Taree Shopping Centre around 12:30pm. Mrs Strong an amputee walked with the aid of crutches. The fall occurred as a result of the tip of her crutch coming into contact with a greasy potato chip that was laying on the floor. The incident occurred nearby the centres food court within the  ‘sidewalk sales area’ which was under the care and control of Big W (Woolworths). The crutch slipped out from under her and she fell heavily.

Mrs Strong brought proceedings against Woolworths and the Centre Management in the District Court of New South Wales, claiming for damages and negligence as Woolworths had responsibility for cleaning the area and it had not been inspected for more than four hours before her fall.

The cleaning company engaged by the Centre was not responsible for cleaning the ‘sidewalk sales’ area. However their contract stipulated that they had to clean and inspect the adjacent area every 15 minutes.

Woolworths employed a ‘people greeter’ in the vicinity of the area, a cashier in the sidewalk area and otherwise instructed all employees to be “constantly vigilant” for spillages. However Woolworths conceded that they did not have in place a system of periodic inspection and necessary cleaning.

A judgement was obtained against Woolworths and the claim against the centre was dropped, Mrs Strong was awarded $580,000 in damages.

Woolworths appealed to the New South Wales Court of Appeal. At appeal the primary issue was whether Mrs Strong had proved that Woolworths was responsible for her injury. It was not in question whether Woolworths owed a duty of care to any person in the sidewalk sales area, and on the day of the incident Woolworths did not have any system in place for periodic inspection and cleaning of the area. The court found that the Centre expected 15 minute inspections of their own cleaners and Woolworths was held to this same standard in the District Court. The Court of Appeal reasoned that there was no reason for concluding that the chip was dropped outside the 15 minute period, and the chip was more likely dropped at lunch time when the area would have been busier. The court found that Woolworths breach of duty was not the cause of the injury.

Mrs Strong appealed to the High Court, where in March this year, the majority (4 to 1) of the High Court overturned the Court of Appeal’s decision. After detailed analysis of case law and legislation the majority found that for the plaintiff to succeed she needed to establish that “if a system of periodic inspection had been employed, it is likely the chip would have been detected and removed”. Whilst this fact was not in dispute the court found that reasonable care warranted inspections of not greater than 20 minutes. Accordingly the Court found that Woolworths were liable on the simple basis that the chip was likely to have been deposited in the larger 4.5 hour period of trade rather than the 20 minutes before the incident.

As this case demonstrates, timely inspection and cleaning of floor surfaces to remove any potential slip and trip hazards is legally required of retailers and others that open their doors to the public in order to demonstrate their duty of care. How frequently inspections should occur depends upon the use of the space concerned and the risks involved. Food courts generally attract a constant flow of pedestrian activity. Food and beverage spillage additionally increases the risk of a slip and trip accident. Consequently, food courts and other similar public spaces require continuous inspection and cleaning to control the risk.

The concerning thing that this case demonstrates is that a plaintiff does not necessarily need to provide evidence supporting causation and it is sufficient that they ‘theoretically’ demonstrate that it is more likely that they would have not suffered an injury but for the defendant’s negligence.

A concerning sign of things to come.





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