In an unexpected turn the New South Wales Court of Appeal has dismissed a case put to the District Court involving a customer who fell in the cold section of the Coles Neutral Bay Supermarket in 2010. The case which was finalised in August last year resulted in Coles Supermarkets being sued for nearly $120,000 in damages, in the appeal the damages were set aside by Justice Reginald Barrett, with two other judges in agreement.

The original incident as alleged by Sydney woman Charlene Meneghello, involved her slipping over while getting a tub of dip in the Coles store. She told the District Court she fell onto her right shoulder into the dairy section, knocking over rows of cheeses and dips. When she got up she noticed a piece of cardboard and what looked like a ‘paddle pop stick on the ground’. Ms Meneghello said she later suffered pain in her back and arm, limiting her ability to work and undertake daily activities – a condition which she had not suffered before the fall.

During the original District Court proceeding Judge William Kearns found it was ‘probable’ Ms Meneghello slipped on what turned out to be two pieces of cardboard, given that she saw them just after the fall and had otherwise walked safely around the shop. The judge also found that the cardboard was on the ground as a result of the actions of Coles staff, and he awarded Ms Meneghello $119,024 in damages.

But the Court of Appeal has dismissed the District Court case and set aside the damages, finding the case did ‘not prove that her foot touched the cardboard, nor that the presence of cardboard constituted a risk of harm to which Coles’ duty of care extended’.

“There were two relevant possibilities: that [Ms Meneghello] placed her foot on to a piece of cardboard lying on the floor; and that [she] placed her foot on to a part of the floor devoid of cardboard,” Justice Reginald Barrett said.

“The fact that two small pieces of cardboard were seen by [her] in the vicinity when she got to her feet after falling does not endow the first possibility with a greater degree of probability than the second.”

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