Key issues
- Plaintiff injured themselves walking across a wet supermarket carpark while using a mobile phone
- Defendant was aware of the wet floor, but failed to take reasonable steps to avoid the injury as would a reasonable person in their position
- Court found the plaintiff contributorily negligent and reduced their damages by 25%
In a world where the mobile phone has become an extension of most people’s arm, the New South Wales Court of Appeal has found a plaintiff contributorily negligent for answering a call on his phone while pushing a trolley across a wet shopping centre car park, deducting 25% of the plaintiff’s damages accordingly. However, in a win for the iconic Australian fashion item, the wearing of thongs on a wet surface was found not to have amounted to contributory negligence.
Special Counsel Anna Hendry, looks at the approach taken by the Court of Appeal in Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 in determining that such an act was not merely a moment of inadvertence but in fact a negligent act.
Facts
The plaintiff slipped while pushing a shopping trolley in the defendant’s supermarket carpark. He was wearing thongs at the time. Some parts of the carpark floor surface were slippery and the area in question was wet. The plaintiff had walked through the carpark to access the supermarket minutes before and was therefore aware that the floor was wet. Immediately before the incident, the plaintiff answered his mobile phone using one hand and continued to push the shopping trolley using his other hand.
Decision
At first instance, the Supreme Court of New South Wales found that the defendant was liable for the plaintiff’s injuries and that neither the wearing of thongs on a wet surface nor the plaintiff’s act of answering his mobile phone amounted to contributory negligence. Rather, the trial judge characterised the plaintiff’s act of answering his phone as being momentary inadvertence and found that the plaintiff’s thongs were relatively new and he had worn them in the rain before without difficulty.
The defendant appealed both findings that it was liable for the plaintiff’s injuries and a lack of contributory negligence. The Court of Appeal accepted the primary judge’s findings in relation to the plaintiff’s footwear but scrutinised the findings in relation to the act of answering the phone much more closely.
In considering this issue, the Court of Appeal noted that the correct test is whether the plaintiff had taken a degree of care for their own safety that an ordinary reasonable person would take. It found that, in circumstances where the plaintiff was aware that the floor was wet and was pushing a trolley, an ordinary reasonable person would either have stopped walking to answer the call or would have refrained from answering the call. The mere fact that the inattention was momentary does not automatically preclude it from being characterised as negligent.
Moving forward
In circumstances where a defendant suspects a plaintiff was injured partly due to being distracted by a mobile phone, it will be necessary to quickly preserve any evidence of mobile phone use. This may be through preservation of CCTV footage, witness statements or preservation of mobile phone records.
The common sense approach taken by the Court of Appeal to the increasingly prevalent issue of inattention due to electronic device usage is encouraging for all defendants. While the finding of contributory negligence did not completely absolve the defendant of all liability for the plaintiff’s injury, it did see an equitable apportionment for the plaintiff’s failure to take for his own safety.