Case introduction: The High Court of Australia give its verdict in this case, permitting an appeal in a cae involving slip and fall. While doing so, the High Court visited the law related with causation. This decision also reveals the difficulties that are present in slip and fall cases. Potentially this decision has important results for public liability, insurance and personal injury law.
The facts of the case: The facts of this case are that the appellant while looking at pot plants present on the sidewalk area outside the entrance to Big W at Centro Taree Shopping Center (the Center) had suffered a fall after slipping. This area was managed by the first respondent, Woolworths Ltd. that was operating in the area as Big W. The appellant is a disabled person and at the relevant time, the appellant was walking with the help of crutches. The reason was that the right leg of the appellant was amputated from the knee. At nearly 12:30 PM, the complainant slipped and fell after the crutch of the appellant came in contact with oily chip present on the ground. The daughter of the appellant and a friend Mrs. Hurst worked with the apparent at the time. After the apparent had fallen on the floor, an oil mark was noticed on the floor with the crutch had slipped. Later on, during the evidence it was stated as big as the hand by the appellant’s daughter. The daughter and Mrs. Hurst, had seen the chip.
The owner of the center was the second respondent, CPT Manager Ltd. CPT had entered into an agreement with the cleaning service business. According to the agreement, the floors of the center should have been free from rubbish and spillages. It was also mentioned in the contract that the utmost time between cleaning inspection of the common areas of the center was 15 minutes. Ms. Walker had been employed as a cleaner by the cleaning services business. She stated in court that the sidewalk area has been examined and cleaned after 20 minutes regularly. Before the fall of the complainant, the sidewalk was last examined at 8 am in the morning.
In this case, proceedings were initiated by the appellant in the District Court of NSW. The respondents were Woolworths and CPT. The negligence of Woolworths was particularly pointed out by the appellant, including the failure of the company to put in place suitable cleaning system, which can notice spillages etc. in the sidewalk sales area. In this regard, the company acknowledged that there was no apparent system put in place by the company on the day of the event related with intermittent examination and cleaning of the sales region. In this regard, the primary judge was of the opinion that being the occupiers of the sidewalk, Woolworths had a duty of care towards the persons coming to this area. The spirit of the reasoning adopted by the primary judge was that if other people can see (the grease mark) other than the complainant after the incident, it raises a grave issue as to why the mark was not noticed by the employees of Woolworths under these circumstances. Therefore the march should have been removed either by Woolworths or by alerting the cleaner to remove the mark as it was entirely open to the company to do so. If it would have been done, the appellant would not have received the injury. Under these circumstances, Woolworths was considered as being guilty of negligence. In this case, the judgment was delivered against Woolworths to the amount of $580,299. However, the claim of the complainant against CPT was dismissed.
The issues raised by both plaintiff and defendant: Under these circumstances, an appeal was made by Woolworths in the NSW Court of Appeal. It was claimed by the company that the primary judge had made an error regarding a point of law. The appellant would not succeed in establishing that the negligence of the company was the causation of the injuries suffered by her. The Court of Appeal arrived at the conclusion that the primary judge had failed to discuss the breach of duty or causation, and a factual finding regarding causation should have been made. It was held by the Court of Appeal that reasonable care if not require the company to make sure that a person should be continuously present on the spot, looking for slippery substances in that area. Instead, all that was required was regular inspection and cleaning (Australian Safeway Stores Pty Limited v Zaluzna, 1987). This resulted in the possibility that even after regular inspection and cleaning, the chip could be present between the last examination and the complainant slipping on it. The court stated that it was probable that the chip could have been present during the lunch time, which was just before the fall of the appellant. As a result, the breach of duty of care by Woolworths (the failure to clean every 20 minutes), could not be considered as being probable that if the duty would have been carried out, harm would not be suffered by the appellant (Dulhunty v J B Young Ltd., 1976).
Under the circumstances, it was stated by the Court of Appeal that no evidence was presented on the basis of which it can be stated that it was more probable that the chip remained present on the floor for long enough to be noticed and taken away by a realistic cleaning system. In this regard, the court made a reference to section 5D, Civil Liability Act, 2002 (NSW) and stated that it could not be established by the appellant in the present case that on a balance of probabilities the negligence of the company had caused the appellant to fall and suffered an injury (Brady v Girvan Bros Pty Ltd. 1986). Consequently, the Court of Appeal allowed the appeal and set aside the decision delivered by the primary judge.
The arguments presented by both parties: Consequently, an appeal by special leave was made by the appellant to the High Court. The main question in the appeal was if the Court of Appeal had acceptably decided the question of causation. In this regard, several submissions were made by the appellant regarding the construction of section 5D, Civil Liability Act by the Court of Appeal, particularly the fact that the court had taken on an excessively constrained interpretation’ regarding the scope of s5D. On the other hand, it was submitted by Woolworths that it was essential for the petitioner to provide evidence, which allowed an inference to be made regarding the time when the chip fell on the floor.
The judgment of the court: In this case it was found by the majority that the appeal made by the plaintiff was considered as comprising the familiar difficulty that is present in case of the cases related with slip and fall to establish a casual link between the lack of sufficient cleaning system and injuries suffered by the plaintiff, when it is not known when the slippery material fell on the floor (Rose v Abbey Orchard, 1987). It was stated by the High Court that the statutory test for causation has been correctly applied by the Court of Appeal. However, the High Court did not agree with the findings of the Court of Appeal that it was not open to evidence to arrive at the conclusion that the negligence of Woolworths was a necessity condition regarding the harm suffered by the appellant. Instead, it was considered by the High Court that the proof regarding a casual link between an omission and an incident needs the consideration of likely host of incidents if the omission did not take place (Drakos v Woolworths (SA) Ltd., 1991).
In this regard, the ‘speculation’ of the Court of Appeal was rejected by the High Court that the chip could have been deposited at lunchtime. Instead they High Court stated that the fallen chip was a danger and it had nearly equal chances of taking place throughout the day.
Under these circumstances, the appeal was allowed by the High Court. It was ordered that the ruling of Court of Appeal should be reversed and in its place, the appeal made to the court of appeal was dismissed with costs.
In this case, the dissenting minority judgment was delivered by Hayden J.. The focus of the dissent of Hayden j was on the obligation that it is for the appellant to bear the evidentiary load of establishing causation, which in the present case, she was unsuccessful in discharging. Because there was no direct evidence present in either way, if the chip was deposited before or after 12:15 PM, it was held by Hayden J. that the appeal needs to be dismissed with costs. It was argued that Woolworths need to succeed in the case on the ground of placing the legal burden of proof, which was on the appellant.
Critical analysis: It appears that this decision follows the current tendency of ‘burden shifting’ that can be seen in the US. For example, in Kelly v Stop & Shop, it was held by the Connecticut Supreme Court that some retail endeavors, which were the defendants in the case, were required to bear evidentiary burden of rebutting a claim made by the plaintiff that there was negligence on the part of the defendant. This verdict was in tune with the situation that has been held in numerous cases in other jurisdictions in the US. The judgment delivered by the High Court in the present case also has significant implications regarding the insurance, public liability and personal-injury legislation is concerned (Griffin v Coles Myer Ltd., 1992). It is not possible for the retail establishment to completely prevent slip and fall off its customers. However, the High Court has particularly applied a higher standard of care than the standard applicable in the past. Therefore it can be the views that with the decision delivered in this case, the law in Australia is moving towards holding the retailers rigorously accountable for injuries that may be suffered by the customers on their premises and as a result, the retailer will be made the ‘absolute insurer’ of the customers (Timberland Property v Bundy, 2005).
Therefore in this case it was stated by the High Court majority that while the onus of proof was on the appellant, Mrs. Strong to establish that the breach on part of Woolworths was the condition that was necessary for the fall, such owners can be released by keeping in view the prospects under the conditions in which cannot be established by evidence when the occurrence related with the fallen chip took place. The High Court also criticized the grounds of the decision delivered by the Court of Appeal that a checkup system was not sufficient to prevent the event. The logic adopted by the Court of Appeal that because chips are usually consumed during lunch hours and because the injuries suffered by Mr. Strong also took place near the lunchtime, it can be reasonably assumed that the chip was present on the only briefly.
However, the High Court also criticized the reasoning of the Court of Appeal that due to the reason that they second cleaner was engaged during the lunchtime,. It was more probable that the items like chips would have been dropped on the floor in this time.
Therefore in the end, it can be stated that the decision delivered in this case emphasizes the significance of constant cleaning system and scrutiny in shopping centers if the companies want to avoid their liability for such incidents. As mentioned in this judgment, “reasonable care needed inspection and the elimination of slipping dangers from the floor at an interval of not more than 20 minutes”.
References
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431
Dulhunty v J B Young Ltd (1976) 50 ALJR 150
Griffin v Coles Myer Ltd [1992] 2 Qd R 478
Rose v Abbey Orchard Property Investments Pty Limited (1987) Aust Torts Reports 80-121
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Legislation
Civil Liability Act 2002
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