High Court restores the balance on causation in supermarket falls

Mal Byrne writes about a recent supermarket injury compensation case, and what it means for people injured in similar circumstances.

In the blog I wrote last year entitled “I was injured after slipping at a supermarket, can I sue?”, I referred to a decision of the New South Court of Appeal where a woman who fell when her right crutch slid on a greasy chip was not awarded compensation, as she could not prove that the chip had been lying on the floor for long enough that a system of cleaning would have detected it in time to prevent the incident.  The victim’s name was Kathryn Strong.  Fortunately, I can now advise that Ms Strong appealed to the High Court of Australia and that the Court upheld her appeal. 

Ms Strong attended at the shopping centre with her daughter and a friend.  The centre had a Woolworths Supermarket and a Big W store separated by a common area, part of which operated as a food court.  From time to time pursuant to the terms of its lease, Woolworths would conduct “sidewalk sales” in an area close to the entrance of the Big W store that encroached upon the food court section of the common area.  The sidewalk sales area effectively created a wide corridor leading to the Big W entrance.  Ms Strong was walking inside the corridor towards the entrance to Big W when she slipped.  As part of Ms Strong’s right leg had been amputated, she walked with a crutch.  She slipped when the crutch made contact with the greasy chip lying on the floor and slid.  The incident occurred at around 12.30pm. Ms Strong’s daughter said that the grease stain from the chip after the fall was “as big as a hand”.  

Woolworths conceded that they did not have a proper system of cleaning in place for the sidewalk sales area at the time of the fall, although they did have a system of cleaning in place for the other areas.  Hence, Woolworths conceded that they were negligent.  It was therefore a question of whether there was a causal link between that negligence and Ms Strong’s injuries.  Ms Strong had to prove that had a system of periodic inspection and cleaning of the sidewalk sales area been in place on the day of her fall, it is likely that the chip would have been detected or removed before her fall.  The sidewalk sales area had not been inspected in the four and a half hours prior to Ms Strong’s fall.  It was agreed that the chip would have been detected and removed had the area been inspected.  It was lying within sight and it was immediately visible after Ms Strong fell. 

The New South Wales Court upheld Woolworths’ assertion that Ms Strong had to point to some evidence indicating when exactly the chip was deposited.  The Court found that chips would normally be eaten at lunch time.  As lunch time occurs between 12.00 pm and 2.00 pm, the chip was probably deposited on the floor sometime between 12.10 pm and 12.30 pm.  There was no evidence to indicate the contrary such as that the chip was stone cold. On that basis, the New South Wales Court of Appeal concluded that the chip was dropped just before Ms Strong’s slip and that a proper system of cleaning would have made no difference. The High Court disagreed saying that it was a question of probability.  What Ms Strong had to prove was that it was more probable than not that Woolworths negligence was a necessary condition of her fall.  It was a question of what was probable in terms of when the chip was deposited rather than evidence pointing to the precise time that it was deposited. The High Court also held that there was no basis for concluding that chips were more likely to be eaten for lunch than for breakfast or as a morning snack.  While the chip probably was not present at the time the store was opened, the conclusion that it had been deposited at a particular time rather than any time from the opening of the store to the fall was speculative.  There was no specific evidence giving any indication of when the chip was deposited.  There was no evidence as to whether it was hot or cold when the fall occurred.  On the balance of probabilities, the Court held that the chip was probably deposited sometime between the opening time of 8.00 am and 12.10 pm and not in the last 20 minutes prior to the fall.  On that basis, the Court found that a reasonable system of cleaning would have detected the chip and the failure to have that system of cleaning in place caused Ms Strong’s fall. 

In my view, the High Court has restored fairness to the test on causation in supermarket falls. If the New South Wales Court of Appeal decision had been followed, victims would have had great difficulty in establishing the link between a failure to have a system of cleaning in place and their fall/injuries. Requiring victims to lead evidence as to the precise timing of a spillage puts them on the back foot entirely. The only way a victim could prove precisely when a spillage occurred would be to locate a witness to the spillage? Most witnesses to a spillage report them and give the supermarket a chance to clean it up. If a spillage is left unattended, it’s usually because no one has noticed it. Hence, asking a victim to find a witness to an unattended spillage is asking the impossible. Now, it’s a question of probability. How long was the spillage probably present? If it was probably present for longer than the twenty to thirty minute inspection period required in a proper system of cleaning, the victim will probably succeed. From an evidentiary point of view, the victim’s task is less onerous. The Court will look at evidence about opening times, inspection times, customer traffic, the nature of the spillage and its visibility, and make common sense findings on what probably was the case than what was precisely the case. 

However, the decision in Strong v Woolworths Ltd doesn’t mean that victims can automatically claim compensation when they slip and fall in a supermarket. As I state in my first blog, it’s a matter of the circumstances surrounding the fall, whether a system of inspection and cleaning is in place, and whether that system of cleaning would have detected the spillage in time. It is complex and you will need a lawyer to navigate you through the maze.

Author: Mal Byrne

TGB is South Australia’s largest injury law firm. For a free initial interview about your injury matter, contact Mal on (08) 8250 6668. TGB operates in Adelaide and Perth.