Slip and fall incidents, particularly those occurring in shopping centres, are among the most common sources of public liability litigation in Australia. In December 2022, the ACT Court of Appeal handed down its judgment in Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71, overturning the decision of the Supreme Court and holding the defendant liable for a slip and fall incident. The Court of Appeal’s decision is an insightful overview of the principles in this area of law and suggests a different cleaning standard than that set out in the High Court’s decision in Strong v Woolworths Ltd [2012] HCA 5.
Background
The plaintiff fell after slipping on a grape in a Coles supermarket in 2017. She alleged that she was walking through the meat section of the store and looking at the food on display when her right leg slipped and she fell, landing on her right shin. Immediately after the fall, she observed a squashed grape on the floor nearby and deduced that she had slipped on it. She suffered an injury to her right shin and knee.
The plaintiff brought a claim against Coles. Both liability and quantum were in dispute. In this alert, we focus on the liability analysis.
The proceedings were governed by the ACT’s Civil Law (Wrongs) Act 2002 (‘CLW Act’). The negligence principles outlined in sections 42 to 46 of that Act are more or less interchangeable with those contained in sections 9 to 12 of Queensland’s Civil Liability Act 2003.
The ‘clean as you go’ system
The subject Coles store was cleaned by dedicated cleaners outside opening hours. During opening hours, Coles relied on a ‘clean as you go’ system. Workers were instructed to identify any hazards as they went about their normal duties.
Coles called two employees from the store to give evidence. Both gave evidence that they were instructed to keep a lookout for spillages and clean up any identified hazards. This included specific instruction to monitor the floor for fallen grapes. They were shown a five minute video on dealing with spills.
Trial decision
Coles conceded that the risk of harm in this case was foreseeable and ‘not insignificant’. Accordingly, the key issue was whether Coles breached its duty of care. Her Honour Balla AJ held as follows:
- She rejected the plaintiff’s contention that grapes ought to have been sold in sealed containers or Coles ought to otherwise have prevented customers from eating grapes in the store. She accepted Coles’ submission that there were health issues associated with storing grapes in a closed bag and pointed to the lack of evidence as to how Coles could have prevented customers from eating grapes in the store.
- The plaintiff also contended that, pursuant to the decision in Strong v Woolworths Ltd [2012] HCA 5, Coles was obliged to implement a system of periodic inspections of the floor which was documented. Her Honour did not accept that this was the case. She stated in many cases the Courts had considered systems akin to the ‘clean as you go’ system, without finding them insufficient on the sole ground of a lack of a periodic and documented system of inspection.
- The plaintiff further asserted that there was a lack of evidence indicating staff had completed their spot checks and cleaning duties diligently. Her Honour rejected this argument and concluded that the evidence provided by Coles staff did not suggest any departure from the recognised system.
- Her Honour drew on Woolworths Ltd v McQuillan [2017] NSWCA 202 to determine that a casual act of negligence did not arise where staff failed to observe a single grape on the floor when passing that area to attend to other duties. She said that keeping a proper lookout did not mean keeping a perfect lookout.
- Her Honour held that the plaintiff had failed to show that the defendant breached its duty of care.
Given this finding, Her Honour did not give explicit consideration to the issue of factual causation. Damages were assessed at approximately $17,000.00.
Appeal decision
Breach of duty
In overturning the decision of the Supreme Court, the Court of Appeal determined that the ‘clean as you go’ protocol was not a reasonable discharge of Coles’ duty of care. The Court highlighted the shortcomings of such a system; namely, the lack of personnel to identify hazards and infrequency of inspections. As a result, breach of duty was established. In arriving at this decision, the Court referred to a plethora of analogous case law.1 In summary, the Court of Appeal found as follows:
- The evidence indicated that grapes were commonly dropped in different parts of the store by customers or their children while browsing the supermarket. It was further deduced that the day in question was busy and the area where the incident occurred was not regularly attended by staff.
- No staff member was exclusively tasked with monitoring for spills, nor was there a time at which the system required an inspection to be undertaken by staff in any area. Despite evidence indicating that a member of staff was in the area at the time of the fall, there was no evidence as to the activities of that person in relation to detecting slip hazards. The Court identified the lack of evidence led by Coles regarding the effectiveness of its system which required all staff to keep a general lookout in the course of their daily activities.
- The Court found that the system was inadequate and that a reasonable company in the position of Coles would have taken additional steps to address this particular issue. In particular, “a reasonable person in the position of Coles would have taken additional steps to ensure that particular attention would be paid to the issue of potential slipping hazards on the floor in the area in question. That would not necessarily require that there be separate staff whose job it was to make such an inspection, but that at least there be some system which required staff to specifically direct their attention to that issue not less frequently than once every hour”.
Causation
The Court of Appeal held as follows in relation to the issue of causation:
- There was no evidence as to the effectiveness of the ‘clean as you go’ system nor anything to indicate the grape was dropped at a particular time. The supermarket had been operating for six hours and 32 minutes at the time of the incident.
- It was likely the grape was dropped in the earlier five hours and 32 minutes after the store opened, rather than the one hour immediately prior to the fall. As such, if a system involving dedicated hourly inspections had been implemented, it was likely the harm would not have occurred.
Therefore, causation was established.
Outcome
The appeal was allowed. The Court assessed damages at approximately $27,000.00.
While a disappointing result for Coles, the outcome is constructive in that it suggests a different standard for cleaning than the decision in Strong. The High Court’s decision in Strong indicated that stores ought to be cleaned and monitored for spills at a minimum of 20-minute intervals. The Court in Bulljat referred only to hourly inspections, a much more achievable standard. In practice, this is the difference between ensuring existing staff members undertake hourly inspections (Bulljat) and essentially engaging an additional staff member per shift to attend to inspections and cleaning (Strong).
Key takeaways
- Courts may be satisfied that hourly inspections are a reasonable discharge of a supermarket’s duty to monitor stores for hazards.
- Supermarkets may wish to implement cleaning systems involving hourly inspections, as opposed to ‘clean as you go’ systems. However, this does not require hiring a dedicated staff member responsible for such inspections. The recording of the times and locations of such inspections would be of great evidential value in the event of a slip in the store.
- If a ‘clean as you go’ system is in place at the time of an injury, careful consideration should be given as to the evidence to be led at trial. This might include internal documents relating to the effectiveness of the system, expert evidence from a liability specialist on the issue and/or specific questions put to the employees who gave evidence as to how frequently they identified hazards while undertaking their duties.
For more information or to discuss your own circumstances please contact HopgoodGanim’s Insurance team.