Gomez v Woolworths Group Limited - [2024] NSWCA 121

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gomez v Woolworths Group Limited [2024] NSWCA 121
Hearing dates: 21 March 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Before: Bell CJ at [1]
Gleeson JA at [2]
Adamson JA at [97]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs.

Catchwords:
NEGLIGENCE — Breach — Slip and fall injury in supermarket — Whether systems of periodic inspection and cleaning adequate — Whether employees failed to implement systems — Whether reasonable precautions required additional system of hourly inspection and cleaning of front of store area — Whether breaches of duty additional to those found by trial judge
NEGLIGENCE — Causation — Whether plaintiff proved factual causation under Civil Liability Act 2002 (NSW) — Whether injury would have occurred if there had been no negligent act or omission
TORTS — Whether liability of occupier for breach of duty of care owed to invitee analogous to employer’s vicarious liability for employee’s tortious conduct or other wrongful act of employee in the course or scope of employment
APPEALS — From findings of fact — Inferences to be drawn from CCTV footage — Whether appeal court in same position as trial judge to draw inferences from CCTV footage

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241
Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71
CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 410 ALR 479
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Henville v Walker (2001) 206 CLR 459; [2001] HCA 52
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Mannall v Howard (No 2) [2019] ACTSC 113; (2019) 89 MVR 50
QBE Insurance Australia Limited v Orcher [2013] NSWCA 478
State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Williams v Fraser [2022] NSWCA 200
Woolworths Ltd v McQuillan [2017] NSWCA 202

Texts Cited:
Fleming’s The Law of Torts (11th ed, 2024, Thomson Reuters)

Category: Principal judgment
Parties: Martha Cecil Chacon Gomez (Appellant)
Woolworths Group Limited (Respondent)
Representation:
Counsel:
D Hooke SC / J Tryon (Appellant)
J E Sexton SC / B R Wilson (Respondent)
Solicitors:
Emanuel Refenes Solicitor (Appellant)
Meridian Lawyers (Respondent)

File Number(s): 2023/226954
Decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 121
Decision Date: 21 May 2024

CaseChat Overview and Summary

The appeal in *Gomez v Woolworths Group Limited* concerned a slip and fall injury sustained by the appellant, Ms. Gomez, within a Woolworths supermarket. Ms. Gomez alleged that Woolworths breached its duty of care owed to her as an invitee, leading to her injury. The primary dispute revolved around the adequacy of Woolworths' systems for inspecting and cleaning the store, particularly the area where the incident occurred, and whether employees failed to adhere to these systems.

The court was required to determine whether Woolworths breached its duty of care to Ms. Gomez. Specifically, the appeal considered whether the existing systems of periodic inspection and cleaning were adequate, whether employees failed to implement these systems, and whether reasonable precautions would have necessitated an additional system of hourly inspection and cleaning of the front of the store area. Furthermore, the court had to assess whether Ms. Gomez had proven factual causation under section 5D of the *Civil Liability Act 2002* (NSW), meaning she had to demonstrate that her injury would not have occurred had there been no negligent act or omission by Woolworths. The appeal also touched upon the nature of an occupier's liability and the ability of an appellate court to draw inferences from CCTV footage.

The appellate court, comprising Bell CJ, Gleeson and Adamson JJA, dismissed the appeal. Their reasoning affirmed the trial judge's findings regarding the adequacy of Woolworths' inspection and cleaning systems and the lack of proven breaches. The court found that Ms. Gomez had not established that the existing systems were insufficient or that employees had failed to implement them. Crucially, the court concluded that Ms. Gomez had failed to prove factual causation, determining that she had not demonstrated that the injury would have been avoided even if a more stringent cleaning regime had been in place. The appellate court considered itself in the same position as the trial judge to draw inferences from the CCTV footage.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gomez v Woolworths Group Limited [2024] NSWCA 121
Hearing dates:	21 March 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Before:	Bell CJ at [1] Gleeson JA at [2] Adamson JA at [97]
Decision:	(1) Appeal dismissed. (2) Appellant to pay the respondent’s costs.
Catchwords:	NEGLIGENCE — Breach — Slip and fall injury in supermarket — Whether systems of periodic inspection and cleaning adequate — Whether employees failed to implement systems — Whether reasonable precautions required additional system of hourly inspection and cleaning of front of store area — Whether breaches of duty additional to those found by trial judge NEGLIGENCE — Causation — Whether plaintiff proved factual causation under Civil Liability Act 2002 (NSW) — Whether injury would have occurred if there had been no negligent act or omission TORTS — Whether liability of occupier for breach of duty of care owed to invitee analogous to employer’s vicarious liability for employee’s tortious conduct or other wrongful act of employee in the course or scope of employment APPEALS — From findings of fact — Inferences to be drawn from CCTV footage — Whether appeal court in same position as trial judge to draw inferences from CCTV footage
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTCA 71 CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 410 ALR 479 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 Mannall v Howard (No 2) [2019] ACTSC 113; (2019) 89 MVR 50 QBE Insurance Australia Limited v Orcher [2013] NSWCA 478 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Williams v Fraser [2022] NSWCA 200 Woolworths Ltd v McQuillan [2017] NSWCA 202
Texts Cited:	Fleming’s The Law of Torts (11th ed, 2024, Thomson Reuters)
Category:	Principal judgment
Parties:	Martha Cecil Chacon Gomez (Appellant) Woolworths Group Limited (Respondent)
Representation:	Counsel: D Hooke SC / J Tryon (Appellant) J E Sexton SC / B R Wilson (Respondent) Solicitors: Emanuel Refenes Solicitor (Appellant) Meridian Lawyers (Respondent)
File Number(s):	2023/226954
Decision…