Coles Supermarkets Australia Pty Ltd v Tormey

Coles Supermarkets Australia Pty Ltd appealed to the New South Wales Court of Appeal against a decision of Nield DCJ, who had found Coles liable for injuries sustained by the respondent, Ms Tormey, a customer. Ms Tormey was injured on Coles' premises due to the unruly behaviour of other customers involving a trolley.

The Court of Appeal was required to determine whether Coles, through its employees, owed a duty of care to Ms Tormey to protect her from the risk of injury posed by the conduct of other customers, and if so, whether that duty had been breached. A further issue concerned the availability of a *Jones v Dunkel* inference due to Coles' unexplained failure to call certain witnesses.

The Court of Appeal found that while Coles owed a duty of care to its customers to take reasonable steps to prevent foreseeable harm, the evidence did not establish that Coles knew, or ought to have known, of the specific activities creating the risk of injury to Ms Tormey. The Court held that the conduct of the other customers was not so obviously dangerous or persistent as to give rise to a foreseeable risk of injury that Coles should have prevented. Consequently, the appeal was upheld, and the cross-appeal was dismissed.

The orders made by the District Court were set aside, and a verdict and judgment were entered for Coles. Ms Tormey was ordered to pay the costs of the trial and the appeal, and was granted a certificate under the Suitors' Fund Act 1951, subject to qualification.