Medium Neutral Citation: Vincent v Woolworths Ltd [2016] NSWCA 40
Hearing dates: 29 February 2016
Decision date: 15 March 2016
Before: McColl JA at [1];
Macfarlan JA at [2];
Ward JA at [53]
Decision:
Appeal and cross-claims dismissed with costs.

Catchwords: TORTS – negligence – merchandiser working in supermarket seriously injured when she stepped backwards off a small step into a shopping trolley – nature of supermarket’s duty of care – “harm” referred to in s 5B(1)(b) of the Civil Liability Act is appreciable personal injury – whether risk of harm “not insignificant” – whether reasonable person would have taken precautions – relevance of common practice – extent of employer’s liability – entitlement of occupier and employer to expect care to be taken in performance of commonplace activities
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Seage v State of New South Wales [2008] NSWCA 328
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51
Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Texts Cited: Glass, McHugh and Douglas, The Liability of Employers (2nd ed 1979, The Law Book Company Ltd)
Category: Principal judgment
Parties: Christine Vincent (Appellant)
Woolworths Ltd (First Respondent/Cross-Respondent)
Counterpoint Marketing & Sales Pty Ltd (Second Respondent/Cross-Appellant)
Representation:
Counsel:
E Romaniuk SC/H Chiu (Appellant)
J E Sexton SC (First Respondent/Cross-Respondent)
D Hooke SC/P O’Connor (Second Respondent/Cross-Appellant)
Solicitors:
Symonds Britten Chadwick Lawyers (Appellant)
HBA Legal (First Respondent/Cross-Respondent)
Holman Webb (Second Respondent/Cross-Appellant)

File Number(s): CA 2015/142533
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 431

Date of Decision:

17 April 2015

Before:

Campbell J

File Number(s):

SC 2010/401259; 2013/190244

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 November 2008 the appellant, Ms Christine Vincent, sustained injuries to her back and knee when she collided with a shopping trolley being pushed by a customer down an aisle in Woolworths’ supermarket at Narooma in New South Wales.

At the time of her accident Ms Vincent was employed by the second respondent (“Counterpoint”) as a merchandiser. Her job was to attend relevant supermarkets to check on and adjust product presentations to ensure that they conformed with agreed marketing strategies. To assist her to reach upper shelves, Woolworths provided her with a “safety” step of about 50 centimetres in height.

During…

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.

Continue reading Vincent v Woolworths Ltd

Details

AGLC: Vincent v Woolworths Ltd [2016] NSWCA 40
Case: [2016] NSWCA 40
Decision Date: 15 March 2016

CaseChat Overview and Summary

In *Vincent v Woolworths Ltd*, the New South Wales Court of Appeal considered a negligence claim brought by a merchandiser against her employer, Woolworths Ltd, following a serious injury sustained when she stepped backwards off a small step into a shopping trolley.

The primary legal issues before the Court were whether Woolworths owed a duty of care to the merchandiser, whether the risk of harm was "not insignificant" as required by section 5B(1)(b) of the *Civil Liability Act 2002* (NSW), and whether a reasonable person in Woolworths' position would have taken precautions against such a risk. The Court also had to determine the extent of Woolworths' liability as an employer and occupier, considering the expectation that employees would exercise care in performing commonplace activities.

The Court reasoned that the "harm" referred to in section 5B(1)(b) of the *Civil Liability Act* encompassed appreciable personal injury. Applying the principles of negligence, the Court found that the risk of the merchandiser stepping backwards off the step into a shopping trolley was not insignificant, and that a reasonable employer would have taken precautions to mitigate this risk. The Court also considered the relevance of common practice and the extent to which an occupier and employer are entitled to expect care to be taken in the performance of everyday tasks.

Ultimately, the appeal and cross-claims were dismissed, with costs awarded to Woolworths Ltd.

Orders

Orders of the court

Appeal and cross-claims dismissed with 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Vincent v Woolworths Ltd [2016] NSWCA 40

Most Recent Citation

Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81

Cases citing this decision · 11 of 11 shown

Sivonen v Smith
[2023] NSWSC 984 Para 123

…On appeal in Vincent v Woolworths Ltd [2016] NSWCA 40 (‘ Woolworths ’), Macfarlan JA said at [35] to [37]:…
Jfit Holdings Pty Ltd t/as New Dimensions Health and Fitness v Powell
[2021] NSWCA 137 Para 38

…Reference was also made to the decision in Vincent v Woolworths Ltd [2016] NSWCA 40, in which this Court upheld a finding at first instance that an injury suffered by a “merchandiser”, who was checking products on the shelves of a supermarket and who fell after she stepped backwards off a step into a trolley being…
Keven Gors by his Plenary Administrator of Janet Christine Gors v Tomlinson
[2019] WADC 88 Para 3

…s no real difference between the obligations imposed by the OLA and CLA and the duty of care applicable at common law citing Vincent v Woolworths Ltd [2016] NSWCA 40.…
Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian
[2018] NSWCA 208 Para 45

…would apply. As it happens, the analysis would probably have been similar at common law and pursuant to statute: cf Vincent v Woolworths Ltd [2016] NSWCA 40 at [48].…
Coles Supermarket Australia Pty Ltd v Harris
[2018] ACTCA 25

…obinson Helicopter Company Inc v McDermott [2016] HCA 22; 90 ALJR 679 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Vincent v Woolworths Ltd [2016] NSWCA 40 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40…
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust
[2018] NSWCA 82

…[2016] NSWCA 8 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Vincent v Woolworths Ltd [2016] NSWCA 40 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA Category: Principal judgment Parties: Rail Corporation New South Wales (Appellant) Alan Jerrad Donald (First Respondent) Staff Innova…
Benton v Historic Houses Trust of NSW
[2017] NSWDC 324

…012] HCA 5, (2012) 246 CLR 182 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Vincent v Woolworths Ltd [2016] NSWCA 40 Texts Cited: 2017 Ed Furzer Crestani Assessment Handbook Category: Principal judgment Parties: Michelle Benton (Plaintiff) Historic Houses Trust of NSW (Defendant) Representation: C…
Harris v Coles Supermarkets Australia Pty Ltd
[2017] ACTSC 81 Para 1

…ng down from a step or a ladder, or the like. He agreed the risk to be not insignificant, relying in part on the decision of Vincent v Woolworths Ltd [2016] NSWCA 40; Aust Torts Reports 82-262. In that case, a merchandiser suffered injury when she stepped back off a safety step, into a trolley being pushed by a cu…
Alan Donald v Rail Corporation of New South Wales (No 11)
[2016] NSWSC 1897 Para 87

…In Vincent v Woolworths Limited [2015] NSWSC 435; affirmed in [2016] NSWCA 40, I said (at [24] – [28]):…
House v Anglo Coal (Callide Management) Pty Ltd
[2016] QDC 303 Para 1

…uld “be accommodated within the duties pleaded” in the relevant statement of claim there: at [21]. As amplified in Vincent v Woolworths Ltd [2016] NSWCA 40, by reference to the same High Court authority, there is “a non-delegable duty to take reasonable care to avoid exposing (the employee) to unnecessary risks of…
Solomona v No 1 Riverside Quay Pty Ltd
[2016] QDC 289 Para 1

…l exercise care in carrying out “straightforward” activities: per Macfarlan JA, with whom McColl and Ward JJA agreed, in Vincent v Woolworths Ltd [2016] NSWCA 40 at [49], referring to a passage in Glass, McHugh and Douglas, The Liability of Employers , 2 nd ed, The Law book Company Ltd, 1979 at p 23 to the effect…

View all 11 citing cases →

Cases cited in this decision · 12 of 12 shown

South Sydney Junior Rugby League Club Ltd v Gazis
[2016] NSWCA 8 Para 50

…s not controlled by the employer does not relieve the employer of its duty of care (see for example South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [121]), it is clear that in the present case Counterpoint gave careful attention to the practices its employees were to adopt when working in supe…
Vincent v Woolworths Limited
[2015] NSWSC 435 Para 6

…By judgment of 17 April 2015, Campbell J rejected Ms Vincent’s claims and directed the entry of judgment for the respondents ([2015] NSWSC 435).…
Doak v GJ and BP Chard
[2015] NSWSC 431

…rt Jurisdiction: Common Law Citation: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 431 Date of Decision: 17 April 2015 Before: Campbell J File Number(s): SC 2010/401259; 2013/190244…
Sydney Water Corporation v Turano
[2009] HCA 42 Para 28

…at “a higher level of abstraction” than at the subsequent stages of breach of duty and remoteness of damage ( Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [45]). The duty for which Woolworths contends suffers from undue specificity and, by referring to the precise manner in which the accident o…
Seage v State of New South Wales
[2008] NSWCA 328 Para 36

…e activity was one that would be likely to be encountered as much in ordinary domestic life as in the workplace (see Seage v State of New South Wales [2008] NSWCA 328 at [31]-[38] referring to O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 230 and other authorities).…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 28

…s on hindsight. This is impermissible in considering duty, as well as breach (as to the latter see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [65]).…
Thompson v Woolworths (Qld) Pty Ltd
[2005] HCA 19 Para 35

…principle is of varying significance depending upon the circumstances of particular cases (Judgment [30]; Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]; RTA v Dederer at [46]). The principle was applicable in the present case because of the commonplace character of the activity t…
Czatyrko v Edith Cowan University
[2005] HCA 14 Para 46

…was common ground that Counterpoint, as Ms Vincent’s employer, owed her a duty of care of the nature described in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]. In effect, this was a non-delegable duty to take reasonable care to avoid exposing her to unnecessary risks of injury, requiring…
Dovuro Pty Ltd v Wilkins
[2003] HCA 51 Para 41

…thod of work accorded with common supermarket practice concerning the activities of merchandisers. As McHugh J stated in Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [34], “[c]ompliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently.”…
Rosenberg v Percival
[2001] HCA 18 Para 33

…, some material harm must be postulated. This need not be of the severity of the harm in fact suffered by the plaintiff (see Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]) but must nevertheless be harm in a legal sense. Contrary to Ms Vincent’s submissions, the primary judge said no more than this in f…
O'Connor v Commissioner for Government Transport
[1954] HCA 11 Para 36

…in the workplace (see Seage v State of New South Wales [2008] NSWCA 328 at [31]-[38] referring to O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 at 230 and other authorities).…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 48

…ability Act provide are inapplicable in the context of this claim, application of the common law principles identified in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 requires little substantive difference in approach. Those principles require identification of a risk of injury which, as in the case of…

Legislation cited in this decision · 1

Civil Liability Act 2002 (TAS)
1 mention (from Para 20)

Medium Neutral Citation:	Vincent v Woolworths Ltd [2016] NSWCA 40
Hearing dates:	29 February 2016
Decision date:	15 March 2016
Before:	McColl JA at [1]; Macfarlan JA at [2]; Ward JA at [53]
Decision:	Appeal and cross-claims dismissed with costs.
Catchwords:	TORTS – negligence – merchandiser working in supermarket seriously injured when she stepped backwards off a small step into a shopping trolley – nature of supermarket’s duty of care – “harm” referred to in s 5B(1)(b) of the Civil Liability Act is appreciable personal injury – whether risk of harm “not insignificant” – whether reasonable person would have taken precautions – relevance of common practice – extent of employer’s liability – entitlement of occupier and employer to expect care to be taken in performance of commonplace activities
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Seage v State of New South Wales [2008] NSWCA 328 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; 221 CLR 234 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Texts Cited:	Glass, McHugh and Douglas, The Liability of Employers (2nd ed 1979, The Law Book Company Ltd)
Category:	Principal judgment
Parties:	Christine Vincent (Appellant) Woolworths Ltd (First Respondent/Cross-Respondent) Counterpoint Marketing & Sales Pty Ltd (Second Respondent/Cross-Appellant)
Representation:	Counsel: E Romaniuk SC/H Chiu (Appellant) J E Sexton SC (First Respondent/Cross-Respondent) D Hooke SC/P O’Connor (Second Respondent/Cross-Appellant) Solicitors: Symonds Britten Chadwick Lawyers (Appellant) HBA Legal (First Respondent/Cross-Respondent) Holman Webb (Second Respondent/Cross-Appellant)
File Number(s):	CA 2015/142533
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 431 Date of Decision: 17 April 2015 Before: Campbell J File Number(s): SC 2010/401259; 2013/190244