Strong v Woolworths Limited [2012] HCA 5 7 March 2012 S172/2011
ORDER
1. Appeal allowed.
2.Set aside the orders of the New South Wales Court of Appeal made on 2 November 2010 and in lieu thereof dismiss the first respondent's appeal to that Court with costs.
3. The first respondent to pay the appellant's costs in this Court.
On appeal from the Supreme Court of New South Wales
Representation
B M Toomey QC with T J J Willis and E G Romaniuk for the appellant (instructed by Leitch Hasson Dent Lawyers)
J E Maconachie QC with P Biggins for the first respondent (instructed by Bartier Perry Solicitors)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Strong v Woolworths Limited
Negligence – Causation – Slip and fall injury – Absence of adequate system for periodic inspection and cleaning – Whether factual causation under s 5D of Civil Liability Act2002 (NSW) ("Act") excludes notions of "material contribution" – Whether appellant had proved factual causation under s 5D(1)(a) of Act – Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104.
Words and phrases – "but for", "causation", "material contribution", "necessary condition", "slipping case", "system of periodic inspection and cleaning".
FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ. The appellant suffered serious spinal injury when she slipped and fell while at the Centro Taree Shopping Centre ("the Centre"). At the time, she was in the sidewalk sales area outside the entrance to the Big W store. This area was under the care and control of the first respondent, Woolworths Limited, trading as Big W ("Woolworths"). The appellant is disabled. Some years before these events, her right leg was amputated above the knee. She walks with the aid of crutches. On this occasion, the tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped out from under her and she fell heavily.
The appellant brought proceedings in the District Court of New South Wales (Robison DCJ) claiming damages for negligence against Woolworths and the second respondent, CPT Manager Limited ("CPT"), the owner of the Centre. The appellant obtained judgment against Woolworths for $580,299.12. The claim against CPT was dismissed.
Woolworths appealed to the New South Wales Court of Appeal (Campbell JA, Handley AJA and Harrison J). It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area[1]. Nor was it in question that, on the day of the appellant's fall, Woolworths did not have any system in place for the periodic inspection…
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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AGLC
Strong v Woolworths Ltd [2012] HCA 5
Case
[2012] HCA 5
Decision Date
CaseChat Overview and Summary
The appellant, Ms Strong, suffered injury when she fell in a common area of a shopping centre, allegedly due to a chip or grease on the floor. She brought proceedings in negligence against the first respondent, Woolworths Ltd, which conducted a "sidewalk sales" area within the common space. The dispute centred on whether Woolworths' failure to have an adequate system for inspecting and cleaning the area caused Ms Strong's fall. The matter proceeded to the High Court of Australia.
The legal issues before the High Court included whether the appellant had proven factual causation under section 5D(1)(a) of the *Civil Liability Act 2002* (NSW). Specifically, the court considered whether the "but for" test of causation excluded the concept of "material contribution" and whether probabilistic reasoning, as applied in previous cases, was permissible in this context. The appellant also argued that an evidential burden lay on Woolworths to explain the absence of a cleaning system, and that "very slight" evidence of causation should be sufficient given this lack of explanation.
The High Court allowed the appeal, finding that the appellant had established factual causation. The court reasoned that while the "but for" test is the primary test for factual causation, it does not preclude a finding of causation where the defendant's conduct materially contributed to the harm. The court held that the absence of a system for periodic inspection and cleaning by Woolworths meant that the risk of a spillage remaining on the floor for a significant period was a foreseeable consequence. Given the lack of evidence from Woolworths regarding any cleaning or inspection of the specific area, the court found it open to infer that the chip or grease had been present for a sufficient time to constitute a failure by Woolworths to take reasonable care, and that this failure was a necessary condition of the appellant's fall.
Consequently, the High Court set aside the orders of the New South Wales Court of Appeal and dismissed Woolworths' appeal to that court with costs. Woolworths was also ordered to pay the appellant's costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the New South Wales Court of Appeal made on 2 November 2010 and in lieu thereof dismiss the first respondent's appeal to that Court with costs.
3. The first respondent to pay the appellant's costs in this Court.
Background
Background to the litigation
For the reasons to be given, the appeal should be allowed, the orders of the Court of Appeal set aside and, in lieu thereof, the appeal to that Court should be dismissed with costs. The facts The incident occurred at around 12.30pm on Friday, 24 September 2004. The appellant was at the Centre with her daughter and a friend, Ms Hurst. The Centre contained a Woolworths store and a Big W store separated by a common area, part of which was operating as a food court. Woolworths had the exclusive right under its lease with CPT to conduct "sidewalk sales" in an area that was roughly square, extending around 11 metres from the Big W entrance doors into the common area towards the food court. Two shoulder-high pot plant stands were positioned on either side of the sidewalk sales area, creating a wide corridor leading to Big W's entrance. The appellant was inside the corridor, walking towards Big W with her daughter on her left and Ms Hurst just a little in front to her right. As the appellant moved to her right to inspect the pot plants, the tip of her crutch came into contact with a chip, or with grease deposited by the chip, and the crutch slipped out from under her, causing her to fall. After her fall, the appellant saw a grease mark on the floor at the point where the crutch had slipped. Her daughter described the grease stain as being "as big as a hand". The daughter and Ms Hurst each saw a chip on the ground. CPT, or a company associated with it, had a contract with a cleaning services company. The contract specified that the premises were to be maintained so that "floors are to be free of any rubbish and or spillages". The maximum time between cleaning inspections for the "mall/common areas" was stipulated to be 15 minutes. Kathryn Walker was employed as a cleaner by the cleaning services company. Her hours of duty were from 7.30am to 4.00pm. Ms Walker was responsible for cleaning the common area but this did not extend to the sidewalk sales area. A second cleaner was on duty in the period 11.00am to 2.00pm. The second cleaner's duties were to clean the food court area, the public toilets and to respond to calls to clean up spillages. Security staff patrolled the Centre continuously and would contact the cleaner by two-way radio if a spillage was detected. Big W employed a person to act as a "people greeter", to welcome people coming into the store and to check the bags of those leaving it. This employee was required to stand in the vicinity of the Big W entrance doorway. It was part of her duties to keep an eye out for spillages within the sidewalk sales area. All Big W employees were trained to be vigilant for spillages. It appears that another Big W employee was on duty at a cash register located in the sidewalk sales area. However, Woolworths acknowledged that it did not have any system in place on the day of the incident for the periodic inspection and necessary cleaning of the sidewalk sales area. Ms Walker was on her lunchbreak at the time of the appellant's fall. She later completed a report concerning the incident in which she recorded that "the area" had last been cleaned or inspected at 12.10pm. The reference to "the area" was to the common area adjacent to the sidewalk sales area. Ms Walker recorded that "the area" was cleaned "every 20 minutes". There was no explanation for the difference between the 15 minute inspection intervals stipulated in the contract and the 20 minute inspection intervals recorded by Ms Walker. The proceedings in the District Court
Evidence
Evidence Before The Court
Before going to that question, it is desirable to deal with two particular arguments advanced by the appellant.The appellant's "evidential burden" argument and the "very slight" evidence argument Normally when the legal (ie persuasive) burden of proof rests on a party, what is called an "evidential burden" rests on that party also. The appellant submitted, however, that while the legal (ie persuasive) burden of proof lay on her, an "evidential burden" of proof lay on the first respondent. For that proposition the appellant cited statements of Lawton LJ and Megaw LJ in Ward v Tesco Stores Ltd[56] and statements in the Full Court of the Supreme Court of South Australia in Brown v Target Australia Pty Ltd[57].[56][1976] 1 WLR 810 at 814 and 816; [1976] 1 All ER 219 at 222 and 224 respectively.[57](1984) 37 SASR 145. The appellant also advanced a second submission – that an inference that causation existed could be drawn in this case from "very slight" evidence. That was said to be so because the first respondent's failure to have a system in place "removes resort to the documents recording the performance and non‑performance of the system, and removes witnesses to give testimony as to that performance and non-performance, making slight evidence appropriate and sufficient". The appellant cited three authorities in support of this submission. The first was De Gioia v Darling Island Stevedoring & Lighterage Company Ltd[58]. Jordan CJ there dealt with the sufficiency of evidence to support a jury verdict where "some of the facts essential to the plaintiff's case are peculiarly within the knowledge of the defendant, and it is, in the nature of things, difficult for the plaintiff to produce evidence of them." He said:"Such a state of things does not absolve the plaintiff from adducing some evidence of those facts; but where it exists it is legitimate for the trial Judge to hold that very slight evidence pointing to their existence may be treated as sufficient to justify a jury in holding that they do exist, if, but only if, there is no explanation of that evidence by the defendant".The second was Hampton Court Ltd v Crooks[59]. In it Dixon CJ said:"[A] plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it".The third was the case from which the concluding words of Dixon CJ were taken: Blatch v Archer[60]. Lord Mansfield CJ said:"[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the power of the other to have contradicted."The appellant relied on the second submission partly in its own right and partly as support for her submission about the evidential burden. It was said that the second submission "substantively accommodated the shift of the evidential burden to a defendant".[58](1941) 42 SR (NSW) 1 at 4.[59](1957) 97 CLR 367 at 371; [1957] HCA 28.[60](1774) 1 Cowp 63 at 65 [98 ER 969 at 970].
Decision
Reasons for decision
FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ
HEYDON J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ,
HEYDON J