Fruit sparks insurance claim yet again: Spotlight on supermarket cleaning policies

In the latest development of the ongoing string of casualties caused by fruit, the NSW Court of Appeal has made a crucial decision in a claim brought against supermarket giant, Woolworths. The decision in Gomez v Woolworths Group Limited [2024] NSWCA 121 provides further clarity regarding the cleaning policies and procedures a Court considers adequate.

The background

On 31 May 2021, at 5:11pm the Appellant slipped on a piece of mango dropped by a customer just nine minutes earlier. The woman fell on her right knee, suffering a fracture.

In the NSW District Court, the woman alleged that Woolworths had failed to effect a system of inspection and cleaning, and to keep floors clean. She alleged this failure created a slipping hazard. She also argued the entrance to the store had not been inspected by Woolworths staff since 4:05pm that day.

Cleaning policies established by Woolworths at the time include:

1. a “service zero” policy which required all employees to perform floor inspections in their immediate work area when called over the PA system, usually on the hour;
2. a “sweep log” system which involved a staff member walking around the entire store three times per day looking for spills or hazards; and
3. a “clean as you go” system requiring all employees to tidy up as they worked in an area.

The woman alleged that these policies were ineffective and not enforced.

Findings in the District Court

The Court found that Woolworths failed to enforce the “service zero” policy at 5:00pm, just 11 minutes before the accident. Despite this, the Court crucially held that even if the “service zero” had been done at 5:00pm as scheduled, or even every 15 minutes, this would not have prevented the woman’s injury from occurring as the mango was dropped only two minutes after the “service zero” was scheduled.

Regarding the “clean as you go” system, the Court noted an employee had walked past the fruit at 5:03pm but had recently clocked off work at the time. As such, it was not his responsibility to report and clear the hazard under the “clean as you go” system.

The Court accepted that the risk posed by the mango was foreseeable and not insignificant. It was accepted that Woolworths owed a duty of care to the customer.

Interestingly, the Court held that hourly inspections of the front of the store were acceptable when paired with a policy where all staff are constantly on alert for hazards, such as with the “clean as you go” policy. This affirms the position in Woolworths Ltd v McQuillan [2017] NSWCA 202. Where a policy like “clean as you go” is not enforced, a system of cleaning and inspection is required between every 15-20 minutes (as proposed in Strong v Woolworths Ltd [2012] HCA 5).

Whilst it was determined that Woolworths had breached its duty of care in not undertaking the “service zero” inspection at 5:00pm and in not having someone assigned the job of inspecting the front of the store on these “service zero” calls, none of the measures Woolworths was required to take would have prevented the woman’s injury and as such causation could not be established and the claim ultimately failed.

Appeal

On appeal, the matter was unanimously dismissed by the Court, agreeing with the District Court’s findings as above.

The Court focused on the Appellant’s further argument that the “service zero” calls were not always called on the hour, and so, the fruit being dropped just two minutes after a “service zero” was scheduled, likely still would have been identified. This was found to be unreasonable as it would require Woolworths to perform “service zero” for an extended period of time, rather than just on the hour.

The Court of Appeal’s judgement was silent on how often full-store cleaning and hazard identification should occur.

HopgoodGanim has successfully defended claims involving similar incidents. To get in touch, please contact our Insurance practice.