Strong v Woolworths Ltd

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.