Australia: Public Liability: Considering the Probabilities
Insurance update

Strong v Woolworths Ltd [2012] 285 ALR 420

Summary

In the recent decision of Strong v Woolworths Ltd [2012] 285 ALR 420, the High Court of Australia revisited the issue of causation in slip and fall cases where there is limited factual evidence available, and considered the inferences that can be made from those evidentiary gaps.

Background

On 24 September 2004 Kathryn Strong, the appellant, visited a temporary sidewalk sales area that was operated by Woolworths, trading as Big W, at the Centro shopping centre in Taree. The appellant walked with the aid of crutches. As the appellant stopped to inspect a pot plant at the edge of the sidewalk sales area at 12:30pm, her crutch came into contact with a hot potato chip (the chip), or with grease deposited by the chip, and the crutch slipped out from under her, causing her to fall.

The plaintiff commenced proceedings in the District Court of NSW against Woolworths, the respondent, and the owner of the shopping centre, CPT Manager Limited. The District Court found in favour of the appellant against Woolworths in the sum of $580,299.12. The appellant's claim against the owner was dismissed.

Woolworths appealed the decision to the NSW Court of Appeal. The Court of Appeal held that it was beyond dispute that that Woolworths owed the plaintiff a duty of care and that it failed to have in place a system for the periodic inspection and cleaning of the sidewalk sales area. The Court of Appeal reversed the District Court's decision as there was no basis for concluding that the chip had remained on the ground long enough for it to be detected by a reasonable system of cleaning and inspection, which the Court of Appeal held to be a system of inspection at 15 minute intervals.

The Court of Appeal held that given there was no evidence that supported an inference that the chip had remained on the ground for a considerable period of time prior to the appellant's slip, there was no basis on which to conclude that it was more likely than not that the chip had not been dropped shortly before the appellant slipped.

Following on from this, the Court of Appeal held that it could not be concluded that it was more likely than not that had there been a dedicated system of cleaning and inspection at 15 minute intervals, the chip would have been detected and the appellant would not have suffered her injury.

Decision

The High Court reversed the Court of Appeal's decision.

The issue faced by the High Court was 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." The High Court began by confirming that the Court of Appeal correctly determined causation by reference to the statutory test of s5D of the Civil Liability Act 2002 (NSW), and correctly accepted that Woolworths' negligent failure to implement a periodic system of inspection and cleaning might be shown to have been a necessary condition of the appellant's harm on the balance of probabilities. At issue in this case was whether it was open to the Court of Appeal to conclude that it was not open on the evidence before it to apply that reasoning in this case.

The High Court considered that in order to prove a causal link between Woolworths' failure to implement an appropriate system of cleaning and inspection and the appellant's slip and fall, consideration must be given to the probable course of events had the omission not occurred. In this case the High Court held that the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been implemented on the day in question, it is more likely than not that the chip would have been detected and removed before the plaintiff slipped.

In circumstances where the appellant was unable to adduce evidence that established exactly when the chip was deposited on the ground, the High Court held the onus could be discharged by consideration of the probabilities.

Ultimately the High Court was of the view that a conclusion that the chip was deposited on the ground at any particular time of the day was speculation. However, on the balance of probabilities, it was more likely to be the case that the chip was deposited on the ground during the longer period between 8:00am, the time of the opening of the sidewalk sales area stand, and 12:10pm and not the shorter period between 12:10pm and the time of the fall. Following on from this, the Court held that it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground long enough for it to be detected by an appropriate system of cleaning and inspection.

The High Court's decision has confirmed the crucial role that evidence of a regular system of cleaning and inspection plays in slip and fall cases, and that in the absence of such evidence, plaintiffs may be able to rely solely on consideration of the probabilities to establish the timing of a deposit of a particular slipping substance on the ground and, in turn, establish causation.

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.