Ardern v Ritchies Stores Pty Ltd
[2001] VSCA 5
•14 February 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 6926 of 1999
| SUSAN ELEANOR ARDERN |
| Appellant |
| v |
| RITCHIES STORES PTY. LTD. |
| Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2001 | |
DATE OF JUDGMENT: | 14 February 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 5 | |
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Negligence – Duty of care – Self-service retailer – Customer injured when reaching for bottle on top shelf – Whether failure by retailer to take reasonable care in so arranging goods for purchase.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. D.G. Brookes | Keith R. Cameron |
| For the Respondent | Mrs. M. Hartley | Phillips Fox |
WINNEKE, P.:
I will invite Phillips, J.A. to give the first judgment in this appeal.
PHILLIPS, J.A.:
I would dismiss this appeal. The appellant brought this proceeding in the County Court seeking damages for injuries she suffered on 11 February 1993 when, as a customer in a shop run by the respondent in Frankston, she fell over whilst clutching one of four bottles of cider which she was proposing to purchase. As she fell the bottle broke and cut her hand quite significantly. The cider was in a refrigerator on the shelves of which the respondent had arrayed bottles of drink of one sort or another for display and for purchase. The obvious intent was that the customer, wishing to purchase, should open the refrigerator, take down the bottles to be purchased and move with them to the checkout point. The appellant was in the process of lifting one of the bottles of drink down from the top shelf in this refrigerator when the accident happened. Her claim was tried in the County Court by judge alone and her claim failed. She now appeals alleging error.
What happened on the occasion of the accident is conveniently set out in the reasons for judgment now under appeal. The judge said:
" Miss Ardern tells me, and there is no real dispute that she is right about it, that the bottles of cider that she was wishing to purchase, were on the top shelf, and this was subsequently measured to be some five feet ten inches above the floor level. She says, and again no-one argues with her about it, that they, the bottles, were arrayed in a single line from front to back. The floor of the shop was clean and she described it as 'glossy' but refrained from using the word 'slippery' and I do not believe that there was any real suggestion that the floor was slippery or at least so slippery as to constitute some danger to a customer such as Miss Ardern in doing the things that she was doing. She was wearing thongs on her feet and she says that as she was reaching for the cider, she had placed three bottles in her
trolley that she had nearby, while she was holding open the door of the fridge with her right hand and reaching in with her left, I believe. It is of no real consequence whether that was the other way around or not. In order to get access to the bottles as she went further back, she being a lady of some five foot six in height, she says, had to stretch up on tiptoe and when removing the fourth bottle, which was to be the last of her purchase. She described it then to the people who attended to her, and to me in exactly the same terms. She slipped over and fell with the bottle which smashed and there was a very nasty cut inflicted on her right hand. In the ensuing minor mayhem of liquid, broken glass, and blood, Miss Ardern was attended by the employees of the defendant and taken away where she was treated by her doctors with the immediate emergency of cleaning the wound and staunching the flow of blood, and then repairing the damaged tissues."
As for why the appellant fell when she did, the judge said this:
" There is in the evidence that I heard nothing that I can see which explains why she fell, except that the task that she was engaged in pursuing caused her to stand on tiptoe whilst employing both hands, one in the act of keeping the refrigerator door open, and the other in reaching for the bottle. It is on that basis that the action is brought saying that by arranging the wares in the way in which they did the defendant failed to take the requisite degree of care for the safety of a customer wishing to avail herself of the facilities of the store to make the purchases that she wanted to purchase."
The appellant's claim was put in negligence and, despite Mr Brookes's submissions this morning about the judge's approach to the identification of the duty of care and its scope, it seems to me, if I may say so, that no criticism can fairly be made of what the judge said in this regard. Thus, he said:
"The question of foreseeability is the creator of the duty. Without foreseeability a duty of care does not arise. With it the duty of care does arise, and I find that here there was a duty of care because it seems to me to be quite plain and accepted without demur in cases of this description that there is a duty imposed on the proprietor of a supermarket or, in this case, a supermarket with a retail liquor outlet, to arrange its business in such a way that a customer can use the premises and avail himself or herself of the facilities available therein without being exposed by a failure to take reasonable care to the risk of injury.”
In my opinion the appellant faced a difficult task in seeking to establish that her accident was in this case the result, even in part, of the respondent's failing to take reasonable care to avoid foreseeable risk of injury to its customers by arranging its wares in the way in which it did. The shelf from which the appellant sought to remove the bottles of drink was some 5'10" above floor level; she herself measured only some 5'6". Of course she had to stretch up on tiptoe but it is significant, I think, that she found no difficulty in gathering to herself the first, second and third of the four bottles which were stacked in line, one behind the other. It was only when she sought to remove the fourth bottle, which was furthest back on the shelf, that she fell over. Simply to arrange the bottles in line, from front to back, could not in itself be a breach of the duty to take reasonable care, given that there is nothing to indicate that the first three bottles were not comfortably within reach, even for the appellant. So far as the fourth is concerned, was it a breach of duty on the part of the respondent not to have that fourth bottle more comfortably within reach of the appellant? But if that be the touchstone of negligence, it must be significant that the appellant was only some 5'6" in height - and why, I ask rhetorically, should that be the critical point? If the bottles must be put comfortably within reach for the appellant, what then of the customer who is only 5'2" in height; must the bottles be brought further to the front as the customer's height decreases?
The answer is surely that so long as the display of the bottles was open and apparent, as plainly it was, the customer herself must take responsibility for the manner in which she reaches to the back of a shelf. One can imagine all sorts of circumstances in which, by seeking to obtain some goods which are initially out of reach, the customer exposes herself to some risk of an accident. That is what happened here. It was quite apparent to the appellant where the bottles were and how she had to stretch if she was to obtain the fourth bottle. Having managed to take the first, second and third bottles down from the shelf quite successfully, she does not show negligence by finding that, in reaching for the fourth, she had to stretch on tiptoe and presumably expose herself to the risk of falling. It was not said that the floor was slippery, or at least so slippery as itself to constitute a danger; there is nothing to explain how the accident happened, except the unwisdom of the appellant herself in seeking to stretch for a fourth bottle which was further back in the cabinet and not so obviously within her reach. If she had difficulty, she should have sought help; in seeking to act for herself without assistance she was the architect of her own misfortune.
This, in effect, is what the learned judge said in dismissing the appellant's claim. It appeared to his Honour that the assistance that was made available was in the circumstances not unreasonable and so no case was to be made of any alleged failure by the defendant to provide assistance. His Honour was not prepared to find that there was a breach of the duty of care because they were bottles as distinct from cans that were placed on the top shelf; as he said, the risk of injury when unloading things from the top shelf remains much the same whether they are bottles or cans. Of course a bottle may break while a can may land a blow; either way there may be injury, but that is only a difference in the way in which the injury occurs. His Honour concluded:
"The same activity has to go on, the same risks exist, and it appears to me that the submission really comes down to saying that having goods displayed on a rack or a shelf of that height is in itself a failure to take reasonable care."
So framed, the submission could not succeed, and I agree with the judge. As his Honour cautioned, a counsel of perfection should not be substituted for want of reasonable care. Specifically, I reject the submission made by Mr Brookes that the judge denied the appellant the chance of having her case considered on its own merits by referring to the tendency these days to seek to substitute perfection for want of reasonable care.
Finally, I join with the judge in expressing regret that the appellant must fail in her claim because, as his Honour said, one naturally feels sympathy for someone who has suffered an injury as nasty as the one which she sustained. None the less
his Honour found himself compelled to dismiss her claim and, for the reasons I have given, there was no error in that. The appeal should be dismissed.
WINNEKE, P.:
I agree.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal be dismissed with costs.
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