Strong v Woolworths [2011] HCA5: Decision – 7 March 2012

Background

The appellant, Mrs Strong, suffered a serious spinal injury when she slipped and fell at the Centro Taree Shopping Centre on 24 September 2004. Mrs Strong was an amputee and walked with the aid of crutches.

She claimed that while she was in the sidewalk sales area, one of her crutches slipped on a chip which was lying on the floor. The area was under the care and control of Woolworths.

The litigation that has ensued focuses on the familiar difficulty in "slipping cases" of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff's injury, when it is not known when the slippery substance was deposited.

Trial

Mrs Strong commenced an action in the District Court of New South Wales claiming damages for negligence against Woolworths, as well as the owner of the Centre. She succeeded against Woolworths (only) on the basis that Woolworths did not have in place an adequate system of inspection and cleaning of the area. Woolworths appealed to the New South Wales Court of Appeal.

Court of Appeal

The Court of Appeal applied the statutory test as provided by s5(D) of the Civil Liability Act 2002 (NSW). Section 5(D) of the Act requires that the negligence was a necessary condition of the occurrence of the harm ("factual causation") and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). Applying the statutory test, the Court of Appeal held that Mrs Strong had failed to prove on the balance of probabilities that Woolworths' negligence caused her fall. The Court of Appeal considered that reasonable care required periodic inspections and necessary cleaning of the sidewalk sales area at 15 minute intervals throughout the day. It observed, however, that the likelihood was that the chip had been deposited on the sidewalk at lunch time and could very well have been on the ground floor for only a relatively short period of time. The Court therefore found that the evidence did not establish that the chip had been on the ground long enough to have been detected, even if an adequate system of inspection had been in place, and accordingly allowed Woolworth's appeal and set aside the judgment of the trial judge.

The High Court

Mrs Strong appealed to the High Court which held by majority that the Court of Appeal had erred in concluding that the chip had most likely fallen during lunchtime and that it was therefore reasonable to assume that it had been there for only a short period of time.

Section 5(E) of the Civil Liability Act 2002 (NSW) (which mirrors s5(D) of the WA Civil Liability Act 2002) provides that in determining liability for negligence, the plaintiff always bears the onus of proving on the balance of probabilities, any fact relevant to the issue of causation. The question before the High Court was in essence, whether a failure to have in place a system pursuant to which the floor was inspected no more than 15 minutes before the fall, caused the appellant's injury.

In the opinion of the majority, the evidence did not permit a finding of when the chip was deposited in the sidewalk area, but only that it was in the interval between 8:00am and 12:30pm. The Court was therefore able to find that the failure of Woolworths to adopt a reasonable system of cleaning was the effective cause of the harm resulting in Mrs Strong's fall.

The importance of a regular system for the cleaning and inspection of shopping centres is obviously highlighted by this decision and the Court has stated with some specificity what this entails, i.e. "reasonable care require(s) the inspection and removal of slipping hazards at intervals not greater than 20 minutes"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of