Korda v Aldi Foods Pty Ltd
[2018] ACTCA 6
•15 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Korda v Aldi Foods Pty Ltd |
Citation: | [2018] ACTCA 6 |
Hearing Date: | 19 February 2018 |
DecisionDate: | 15 March 2018 |
Before: | Burns, Mossop and Bromwich JJ |
Decision: | 1. The appeals against the orders of Robinson AJ on 2. The appellant is to pay the respondent’s costs of those appeals. |
Catchwords: | TORTS – NEGLIGENCE – Occupiers of premises – failure by owner of supermarket to warn entrants that gate designed to open automatically may not open – shopper pushes trolley into gate and is injured – absence of evidence of other similar incidents – warning not required – whether warning would have avoided injury – causation not established |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 45 |
Cases Cited: | Hoyts Pty Ltd v Burns [2003] HCA 61; 77 ALJR 1934 Jenny Korda v Aldi Foods Pty Ltd and Brice Australia (NSW) Pty Ltd [2016] ACTMC 11 Korda v Aldi Foods Pty Ltd [2017] ACTSC 96 Korda v Aldi Foods Pty Ltd (No 2) [2017] ACTSC 153 Roads and Traffic Authority of New South Wales v Dederer[2007] HCA 42; 234 CLR 330 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Shire of Gingin v Coombe [2009] WASCA 92; 52 MVR 382 |
Parties: | Jenny Korda (Appellant) Aldi Foods Pty Ltd (Respondent) |
Representation: | Counsel D Higgs SC with D Richards (Appellant) N Polin SC (Respondent) |
| Solicitors Maliganis Edwards Johnson (Appellant) McCabes Lawyers (Respondent) | |
File Number: | ACTCA 27 of 2017 |
Decisions under appeal: | Court/Tribunal: ACT Supreme Court Before: Robinson AJ Date of Decision: 8 June 2017 Case Title: Korda v Aldi Foods Pty Ltd Citation: [2017] ACTSC 96 |
| Court/Tribunal: ACT Supreme Court Before: Robinson AJ Date of Decision: 26 June 2017 Case Title: Korda v Aldi Foods Pty Ltd (No 2) Citation: [2017] ACTSC 153 |
THE COURT:
Introduction
On 19 December 2013, the appellant, Jenny Korda, was injured as a result of an incident at the entry gates for customers to the Aldi store located inside the Canberra Centre. The appellant brought proceedings against Aldi Foods Pty Ltd, the respondent, as the occupier of that store.
In the ACT Magistrates Court, the appellant obtained a judgment in the sum of $56,054.93: Jenny Korda v Aldi Foods Pty Ltd and Brice Australia (NSW) Pty Ltd [2016] ACTMC 11. That sum was arrived at after reducing the appellant’s damages by 50 per cent on account of her contributory negligence. The basis upon which liability was established was that the respondent had failed to give shoppers a warning that the entry gate to the store was not operating correctly.
The appellant appealed to the ACT Supreme Court against the finding of 50 per cent contributory negligence and the order made by the magistrate in relation to costs. The respondent cross-appealed in relation to the liability finding made against it.
In the Supreme Court, Robinson AJ allowed the cross-appeal and set aside the judgment below: Korda v Aldi Foods Pty Ltd [2017] ACTSC 96. His Honour found that it was not possible to infer that the breach of duty identified by the magistrate caused the loss suffered. Had the judgment not been set aside, his Honour would have then allowed the appeal and assessed contributory negligence at 20 per cent rather than 50 per cent.
The appellant has appealed against the decision of Robinson AJ. The amended Notice of Appeal challenges Robinson AJ’s conclusions in relation to causation and asserts that there should be no reduction on account of contributory negligence. The appellant also filed a Notice of Appeal in relation to the separate costs decision made by his Honour: Korda v Aldi Foods Pty Ltd (No 2) [2017] ACTSC 153. That Notice of Appeal did not raise any additional issues and, as a consequence, the outcome of that appeal is dependent upon the outcome of the appellant’s substantive appeal.
The respondent filed a Notice of Contention. That Notice of Contention asserted that Robinson AJ erred in failing to find that there was no breach of any relevant duty of care, and that the magistrate erred in finding that the respondent’s knowledge of the operation of the second gate was such as to require it to install a warning sign and that failing to do so amounted to a breach of duty. It also contended that the reduction for contributory negligence to 20 per cent ought not to have been made in circumstances where there was a factual finding that the gates posed an obvious risk.
The proceedings below
Magistrates Court
The entry for customers into the Aldi store where the appellant was injured involved passing through two metal gates. Those gates were designed to open when a customer approached them from the outside of the store. They did not open when a customer conversely approached them from within the store. The gates were arranged so that a customer entering the store would pass through the first gate and then through the second gate. There was a distance of about a metre between the two gates. The width of the entry way was such that a customer pushing a trolley through the gates would have no trouble in doing so. Trolleys were kept outside the store and the system adopted by Aldi was that customers would push trolleys through the entry gates as they entered the store. The opening of such a gate assembly could be triggered by a radar sensor or the breaking of a light barrier. The magistrate found that the gate assembly at the Aldi store where the appellant was injured used only a radar sensor to trigger the opening of the gates. There was also an interrelationship between the operation of the two gates because the opening of the first gate would trigger the radar sensor on the second gate and hence cause it to open.
It was common ground that on the day of the incident, the gate assembly mechanism was not working correctly. Catherine Scott, one of the employees of the respondent, had disconnected the first gate and left it permanently open because it had been “swinging wildly”.
It was also not in dispute that on the day of the incident, the plaintiff entered the gate assembly pushing an empty shopping trolley. She pushed the trolley towards the closed second gate. As she did so, she looked to her right, away from the gate, towards a store display of biscuits. She expected the gate to open automatically. It did not do so. The trolley hit the gate and, as a consequence, struck her on the lower left shin. The appellant then moved her trolley back and forth and the gate opened. The incident was captured on closed circuit television (CCTV).
Although the pleadings of the plaintiff gave nine particulars of negligence, the actual case run at trial was much narrower. The principal case run by the appellant at trial was that the appropriate precaution would have been to leave the second gate open. The magistrate recorded that no evidence was led by the plaintiff about that precaution and the possibility was not put to defence witnesses. A consequence of leaving the second gate open in the same manner that the first gate had been left open would have been that customers could exit the store through the open gate assembly. The risk of stock loss through theft could have been mitigated by placing a staff member adjacent to the gate assembly. The burden of employing a staff member to do so was not explored in evidence. The magistrate concluded that the burden of leaving the second gate open would not have been insignificant, but found that “on the evidence [it] is impossible to quantify that burden further”.
The magistrate then identified that on the pleadings there was a claim that the respondent was negligent because it failed to give shoppers a warning that the gates were not operating correctly. His Honour said that “[p]resumably such a precaution could have involved placing a warning sign proximate to the gate”. His Honour found that this would not have carried much of a burden and could have been actioned simply and quickly. His Honour’s conclusion was: “On the balance of probabilities I find that a reasonable person in the defendant’s position would have displayed such a warning sign, and that it was unreasonable for the defendant, in the circumstances, not to have done so.” As to the claim that the second gate should have been left open, the magistrate concluded: “Due to the uncertain burden of leaving the second gate open, I am unable to form a view about whether a reasonable person would have taken that precaution.”
As a consequence, his Honour found that the defendant had breached its duty of care. The magistrate did not make any finding, observation or assessment of whether the breach of duty caused the appellant’s loss. The magistrate had recorded, however, earlier in his reasons (at [7]):
Similarly, during the course of the hearing there was evidence of, and no challenge to, the injuries and disabilities suffered by the plaintiff, nor any issue about their factual or legal causation as required by s 45 of the [Civil Law (Wrongs) Act].
Supreme Court
On appeal, Robinson AJ addressed the respondent’s cross-appeal, dealing first with the challenge to the finding by the magistrate that the respondent knew that the second gate may not open every time a shopper approached, and secondly with the challenge to the imposition of liability in the absence of any finding about causation. His Honour’s reasons on these points were as follows:
Failure to install a warning sign
22. As set out above, at [71] and [73] the Magistrate made a finding in favour of the Plaintiff on this issue. Part of the reasoning process to get to this conclusion involves the finding of fact at [69] concerning the Defendant’s knowledge:
…the defendant actively encouraging the plaintiff to enter its store through the gate assembly while pushing a trolley, and knowing that the first gate was fixed open and that the second gate may not open every time a shopper approached.
23.There was no challenge to this finding of fact. However, there was a difference between the parties, deriving from latent ambiguity, as to what precise knowledge the Defendant was said to possess at that time. I was taken to the evidence. Although it is by no means the firmest foundation for the finding of that fact, I cannot say that the Magistrate was in error in making the above finding.
24.Once this finding is made, the conclusion of breach of duty would follow in the circumstances, and the challenge to it fails.
Absence of a warning sign was causative of the injuries
25.At the trial, the Plaintiff led no evidence of the type of sign, the wording of such a sign or the position that such a sign could or should have been placed.
26.There was, as would be expected in those circumstances, no evidence of whether the Plaintiff would have reacted to the warning and, if so, how. Of course, in the first instance, that would have been a function of where the Plaintiff was looking at the time of entry, where the sign was placed and what other visual attractions were competing for the Plaintiff’s attention.
27.The lack of evidence by the Plaintiff on this topic is certainly explicable by the fact that this was not the Plaintiff’s primary case. This was, in contrast, a case where “[t]he Plaintiff’s pleadings claim” that a warning sign should have been present: as underlined at [13] above. The Plaintiff’s primary case was instead that the Defendant was required “to leave the second gate open”. If this gate was left open, no warning was required. There could be no collision. The Plaintiff did not need to lead evidence of her reaction to a warning sign and, accordingly, she did not give evidence on the topic.
28.At [14] to [15] the Magistrate found that:
[14] Just prior to the plaintiff entering the store two shoppers, without a trolley, walked through the gate assembly without incident. The second gate opened just as the first shopper placed his hand out in front of him towards the gate, and shortly thereafter closed behind the second shopper.
[15] Seconds later the plaintiff entered the gate assembly while pushing an empty Aldi shopping trolley. As she pushed her trolley towards the closed second gate, she looked up and to her right, away from the gate and towards a display of biscuits. She expected the second gate to open automatically. It did not. The trolley collided with the closed second gate and stopped. (emphasis added)
29.On that uncontested finding, there is no doubt that the factor of the distraction of the Plaintiff at the critical time is operative, and account must be taken in any analysis of causation: see Hoyts Pty Ltd v Burns [2003] HCA 61; 77 ALJR 1934 at [26].
30. On the state of the evidence, as referred to at [25], [26] and [29], in my view, it is not possible to infer that the breach of duty identified by the Magistrate caused the loss suffered. Senior Counsel for the Plaintiff colourfully said that only 11 words were missing from the judgment:
But what [the Magistrate] didn’t say in [paragraph] 71 was 11 words, a failure to do so caused the injury to the plaintiff.
31. It is not so simple. There is no inescapable or even probable inference which arises in favour of the Plaintiff. There is simply an inadequacy of evidence available for this to be so. Importantly, the Magistrate would not have been able to find, according to law, causation proved on the balance of probabilities on the existing state of the evidence. That is so even had his Honour turned his mind to the task.
32. The Defendant has made out this ground on its cross-appeal. The appeal must be allowed.
(emphasis in original)
Notice of Contention – failure to install a warning sign
It is convenient to deal first with the respondent’s Notice of Contention, as the finding that there was a need for a warning sign is logically anterior to the question of whether any breach caused the injuries suffered by the appellant.
The magistrate made the finding about the knowledge of the respondent quoted in the judgment of Robinson AJ in the context of determining whether a reasonable person in the respondent’s position would have acted as the respondent did or would have erected a warning sign as pleaded by the plaintiff. On that issue, knowledge of prior difficulties with the operation of the gate was a significant matter. In the absence of actual knowledge that there was a problem with the operation or use of the gate, it would be necessary for the plaintiff to prove that the problem was of such significance that the respondent, acting reasonably, ought to have had that knowledge, something which was certainly not established in the present case.
The evidence relating to the respondent’s actual knowledge of any problem with the operation of the second gate was as follows.
Jeremy Jacobson, the store manager at the time of the accident, gave evidence that approximately 60,000 people per month enter the store.
Catherine Scott was, at the time of the accident, a store assistant and the health and safety representative for the staff at the store. She gave evidence that on the day prior to the accident, she could not recall noticing any problems with the gates. She was aware that the first gate was fixed open and that it was most likely her that had turned it off so that it could remain open. In relation to the second gate, she was asked whether she had noticed any problems with the gate in the period leading up to the accident. She described that there had been a couple of different incidents mostly involving children playing with the gate or people doing things that they should not do, such as going through the gate the wrong way. She described the incidents with children pushing against the gates and that they might be pushed in the chest or the gate might “get them in a bit of the face”. She also described incidents where people were trying to exit from the gate for different reasons and where, as a result, they “got tangled up in one of the gates, stuck in the middle and just things like that”. Ms Scott was asked whether any of those incidents that she had spoken of were incidents that she would consider were due to a malfunctioning of the operation of the gates and she said that they were not.
In cross-examination, she was asked whether she had ever had to leave both gates jammed open. She said that she had never had to open the second gate because “I’ve never had a reason to jam open that second one, it hasn’t had the problems the first one has had.”
Claire Weir was an area manager for Aldi Food Stores at the time of the accident. She was cross-examined by reference to the earlier evidence that had been given by
Ms Scott. Her evidence was as follows:
[Mr Richards:] She gave evidence that there had been other incidents in relation to the gates where people sometimes were trapped or they were hit or they needed some assistance, and I think there was mention of other ice packs and incident reports and things of that nature. Do you have any knowledge about that?---The gates are based on sensors and so there may only be one or two sensors per gate and that sensor needs to pick up a person. So there will be times where you would walk up to that gate, the gate doesn’t open. You need to be sensed by the sensor.
That’s quite helpful but it didn’t quite answer my question?---Yes. Could you please repeat it?
Just continue on with your line as opposed to my line. So sometimes you would walk up to the gates and they’d just wouldn’t open?---Yes, because you need to be seen by the sensor.
Now I’ll get back to the other question. Catherine Scott gave evidence that there were other incidents in relation to persons, including children, who were hit or-I don’t want to mislead the---
His Honour: The word was “tangled” I seem to recall.
Mr Richards: Tangled with some of them and trapped I think also, where these other persons required an ice pack or something of that nature because an incident occurred causing some type of injury to the person at those gates?---Yes.
Are you aware of other incidents were persons received or required ice packs in relation to injuries that occurred as a result of those gates?---No.
The first part of this passage in which the witness referred to the gate not opening was specifically referred to by the magistrate in his reasons at [36]. It is this evidence that most likely led to the finding that there was knowledge that the second gate “may not open every time a shopper approached”: at [69]. The evidence was given as part of a non-responsive answer. It does not disclose any evidence that there was any malfunctioning of the gate. Rather, it appears to be simply an explanation of the general operation of a sensor-based gate. The proposition that “sometimes you would walk up to the gates and they’d just wouldn’t open” did receive a positive answer but that evidence is not sufficient to establish that there was any malfunction in the operation of the gates or that the respondent was aware of that malfunction. At its highest, the evidence involves knowledge on the part of the respondent that the sensor-operated gates only open when the sensor is triggered and the triggering of that sensor may not be 100 per cent reliable.
The second half of the passage clearly deals with those circumstances where children were playing with the gates or where the gates are operating as intended to prevent people from leaving the store via that route.
The evidence set out above was not sufficient to support a finding that there was knowledge of any malfunction in the operation of the second gate. That then leaves the position being that the respondent had knowledge that the second gate, being a
sensor-operated gate, would only open when the sensor was triggered and that the decision about whether or not a warning sign was required to be installed needed to be made in that context.
No warning sign was required. Gates, like doors, are obvious obstacles. The gate was a clear barrier to the entry of persons into the store. It would be apparent to entrants to the store that they could only do so if the gate opened or was open. While users of the gates familiar with their operation would have an expectation that they would open automatically, they would also realise that automatically opening doors and gates are not, even in this day and age, 100 per cent accurate in their capacity to detect an approaching entrant and hence, that some care needed to be exercised before proceeding through the gate. There was no evidence to suggest that signs were displayed on equivalent automatic gates or doors. When the question is viewed prospectively, as it must be, the respondent, acting reasonably, was not required to warn entrants of the need to wait until the gate was open before proceeding through it. The normal operation of the gate was not such that its operation was outside the range of expectations of potential entrants to the store so that reasonable care required specific direction or warning as to how it operated.
The Notice of Contention therefore succeeds. Because the operation of the second gate and the respondent’s knowledge of that operation was not such as to require any warning to be given, the orders made by Robinson AJ were correct.
Appeal – causation
The magistrate made no findings in relation to the effect of the sign that he found should have been erected. His Honour therefore made no finding that the accident would have been avoided by the placement of a sign. There was accordingly no finding of a causal relationship between breach of duty and injury to the plaintiff. There was no finding that factual causation was established for the purposes of s 45 of the Civil Law (Wrongs) Act 2002 (ACT).
Because the case was not run on this basis, there was, at trial, no attempt by the plaintiff to identify what any such sign should say, where it should be placed, or how it might have affected the behaviour of the appellant.
Such findings are necessary. That is made clear in the decision of the majority of the Western Australian Court of Appeal in Shire ofGingin v Coombe [2009] WASCA 92; 52 MVR 382. In that case, Martin CJ (with whom Miller JA agreed) said at [75]-[77]:
75 Every claimant in tort carries the burden of proving that the breach of duty committed by the tortfeasor caused or materially contributed to the injury which the claimant suffered, in the sense described in March v Stramare (E & M H) Pty Ltd[1991] HCA 12; (1991) 171 CLR 506.
76 In the case of a breach of duty to erect a warning sign, it follows that the claimant carries the burden of proving that if an appropriate sign had been erected, he or she would have seen it, read it, and thereafter modified his or her behaviour in a way which would have avoided, or reduced the extent of the injuries suffered.
77 People do not always see, read or comply with warning signs. It is therefore open to a court to find that even if an appropriate warning sign had been erected, the plaintiff would nevertheless have suffered injury to the same extent - as was found in Romeo [44].
In a “warning case”, it is clear that evidence by a plaintiff asserting that a warning would have altered the plaintiff’s behaviour must be carefully examined (see for example Roads and Traffic Authority of New South Wales v Dederer[2007] HCA 42; 234 CLR 330 at [276]; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [221]; Hoyts Pty Ltd v Burns [2003] HCA 61; 77 ALJR 1934 at [23]). That fact emphasises, rather than detracts from, the need for a court to make findings about what warning was required and how, in the particular circumstances of the case, the existence of that warning would have altered behaviour in a manner which avoided the injury suffered by the plaintiff. In undertaking that exercise, the court needs to have regard to the inherent probabilities in the particular circumstances and general characteristics of human behaviour: Shire of Gingin v Coombe at [80].
In the present case, the appellant was familiar with the operation of the gates, she was approaching them with her trolley in front of her and was looking to her right at a display of biscuits. The nature, terms or location of any warning sign was not identified as part of the plaintiff’s case. The magistrate proceeded on the basis that the warning sign could be placed “adjacent to the gate”: at [71].
The appellant submitted that, in the circumstances, the effectiveness of a warning sign could be inferred. The basis for that submission was that a warning could have been given that was simple, immediate and compelling, so that in all likelihood, it would have been read and observed in the confined circumstances of the entry gates. It was submitted that a warning such as “Warning this gate could cause injury as it might not open” would have been appropriate. It should be noted that this warning is different from the type of warning that the appellant’s statement of claim asserted was required. At [2(e)] the appellant pleaded as a particular of negligence not that there was a duty to warn that the gates might not open, but rather a duty to warn that the gates “were not operating correctly”. As already concluded above in addressing the respondent’s Notice of Contention, the substratum for the respondent knowing that the second gate was not working (in the absence of any case that it ought to have known), and therefore having any obligation to act upon any such knowledge, was not made out.
The appellant submitted that any distraction caused by the biscuit display was the creation of the respondent. Senior counsel for the appellant distinguished the case from the circumstances of Hoyts Pty Ltd v Burns because any distraction of the appellant caused by the biscuit display was something created by the respondent (unlike the child in Hoyts), the sign was to be directed in relation to a confined space (unlike the theatre in Hoyts), it was in relation to one item (a gateway rather than all the seats in a movie theatre), and the message to be conveyed by it was straightforward. However, in the absence of any evidence about the nature of a sign, what it would say or where it might be placed, it is not possible to reach a conclusion on the balance of probabilities that it would have been effective. It is not sufficient, in a case like this, to say that the warning would need to be of a nature, with wording, and in a position that the appellant would have changed her behaviour. That has a convenient degree of circularity about it and is not consistent with the prospective approach that needs to be taken to the assessment of breach of duty.
There was no evidence from the appellant about the likely effect of any warning upon her. Nor were the circumstances such that either the general characteristics of human behaviour or inherent probabilities indicated that it was likely that a sign would be effective. It is not self-evident, for example, how the terms of the warning sign, proposed for the first time on appeal and at variance to the type of warning asserted in the relevant particular of negligence in the appellant’s statement of claim, wherever it was located, would have any influence on the state of mind and therefore actions of any shopper, let alone that of the appellant. That is because the form of warning proposed on appeal would go no further than pointing out the obvious possibility in relation to any automated opening to any premises that it might not operate properly (as opposed to it actually not working properly, which was not something that was established beyond the isolated incident involving the appellant). Because of the absence of evidence directed to the issue, any finding of causation would necessarily involve unacceptable speculation. Robinson AJ was correct in characterising the case as one “where additional evidence is required to fill a gap in the factual matrix from which causation can be found”: at [36].
Finally, it is necessary to say something about the fact that the magistrate made a specific finding that there was no issue about the “factual or legal causation as required by s 45 of the [Civil Law (Wrongs) Act]”. There was nothing in the transcript which indicated that the respondent had made any admission in relation to the causal connection between any breach of duty and the injuries suffered by the appellant. Moreover, the appellant’s pleading as to the need for a different type of warning at [2(e)] of her statement of claim, referred to at [31] above, was denied as a part of the respondent’s denial at [5] of the defence of the particulars of negligence. In the absence of a specific concession or abandonment of the defence as to negligence, the respondent could not be said to have made no issue as to causation flowing from the absence of a warning.
On the primary case run by the appellant, no significant causation issue arose (in the sense of being overt in the conduct of the trial) because if reasonable care required both gates to be held in the open position, then clearly the causal connection between breach of the duty to take reasonable care and the injuries suffered by the appellant was established. However, on the pleaded case relating to the giving of a warning, the issue of the causal connection between breach and damage clearly arose. In the absence of a concession on the part of the respondent, the magistrate was obliged to consider and make findings in relation to that issue.
Robinson AJ was clearly correct in not remitting the matter for further hearing in the Magistrates Court. It was not simply a case of a judicial officer having failed to give sufficient reasons. Rather, it was a case in which the evidence available at trial was not sufficient to support a finding of causation. As Robinson AJ pointed out, the reason that the plaintiff did not call evidence in support of her warning sign case was that it was not her primary case. That is a forensic decision made for the purposes of the trial. It is not one which should be reopened by a remission of proceedings.
Conclusion
For the reasons given above, the Notice of Contention will be upheld and the appeal dismissed.
The appeal from the decision of Robinson AJ in relation to costs was entirely dependent upon the success of the substantive appeal and therefore that appeal must also be dismissed. Costs will follow the event.
Orders
The orders of the Court are:
1.The appeals against the orders of Robinson AJ on 8 June 2017 and 26 June 2017 are dismissed.
2.The appellant is to pay the respondent’s costs of those appeals.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 15 March 2018 |
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Amendment
15 March 2018 Paragraph 39, order 2: substitute “respondent” with “appellant” and substitute “appellant’s” with “respondent’s”.
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