Woolworths Ltd v McQuillan

[2017] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Woolworths Ltd v McQuillan [2017] NSWCA 202

Hearing dates:

26 July 2017

Date of orders:

14 August 2017

Decision date:

14 August 2017

Before:

Basten JA at [1]
Gleeson JA at [2]
Payne JA at [100]

Decision:

(1)   Appeal allowed.

 

(2)   Set aside the orders made by the District Court on 22 September 2016 and in lieu thereof order:

 

(a)   Amended statement of claim dismissed;
(b)   Plaintiff to pay the first defendant’s costs in the District Court.

 (3)   Respondent to pay the appellant’s costs in this Court.

Catchwords:

TORTS – negligence – liability – respondent fell on a grape in appellant’s supermarket – whether finding as to length of time grape was on the floor was supported by the evidence – whether appellant required to establish that its staff were present in the produce area after the supermarket opened - whether primary judge entitled to draw Jones v Dunkel inference against appellant – where primary judge found appellant’s system of safety and inspection could not be improved – whether a casual act of negligence – whether appellant’s staff failed to keep a proper lookout for hazards on the floor – where primary judge made no finding consistent with negligence by appellant.

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B(1)(a), (b), (c), 5D
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kocis v SE Dickens Pty Ltd [1998] 3 VR 408
Kuhl v Zurich Financial Services of Australia Ltd & Anor (2011) 243 CLR 361; [2011] HCA 11
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18
Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5

Category:

Principal judgment

Parties:

Woolworths Ltd (ABN 16 151 003 191) (Appellant)
Colleen Mary McQuillan (Respondent)

Representation:

Counsel:
Mr J.E. Sexton SC/Mr B Wilson (Appellant)
Mr R Sheldon SC/Mr J Malouf (Respondent)

  Solicitors:
HBA Legal (Appellant)
Gerard Malouf & Partners (Respondent)

File Number(s):

2016/302301

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

-

Date of Decision:

22 September 2016

Before:

Maiden SC DCJ

File Number(s):

2015/192795

Judgment

1. BASTEN JA: The appellant obtained a judgment in the District Court with respect to injuries suffered when she slipped on a grape in the Woolworths’ supermarket at Leichhardt. The findings made by the trial judge did not permit a conclusion that the appellant was negligent; indeed they were inconsistent with that conclusion. For the reasons given by Gleeson JA, this appeal must be allowed and the consequential orders made.

2. GLEESON JA: On 25 November 2012, the respondent, Ms Colleen McQuillan, slipped and fell on a grape in the produce (fruit and vegetable) section of a supermarket at Leichhardt Marketplace shortly after it opened for business that day at 10:00am (being a Sunday).

3. Ms McQuillan commenced proceedings in the District Court against the appellant, Woolworths Limited (Woolworths), as operator and occupier of the supermarket, seeking damages for her injuries. She was successful in that Court on the hearing of the separate question of liability. As the parties had agreed the quantum of damages, judgment was entered in favour of Ms McQuillan in the agreed sum of $151,000 plus interest and costs: McQuillan v Woolworths Limited (D.Ct, unreported, 22 September 2016, Maiden DCJ).

4. Woolworths appeals against that decision.

The judge’s decision on liability

5. The store opened at 10am; Ms McQuillan entered when it opened. The primary judge found that Ms McQuillan slipped and fell on a grape (colour unknown) in the area directly behind a scale located in the middle of the produce area of the store, described as the banana area. There is no challenge to that finding. The CCTV footage of the produce area recorded that the fall occurred at 10:06.29am.

6. Based on photographs taken from the CCTV footage, and the evidence of Mr Skantzos, the acting manager, his Honour found that there were grapes displayed at the front of the store near the cashiers in the area described as the specials display, but the evidence was unclear as to whether there were other grapes on display in the produce area. His Honour accepted the evidence of Mr Skantzos that the grapes shown in the photograph of the specials display were in position when he arrived at the store at 8:30am.

7. His Honour found that the presence of the grape on the floor (near the banana stand) was more likely the result of activities of staff of Woolworths in the produce area before the store opened at 10am, relevantly, that “the grape dropped after or at the time the grapes were brought from the cool room to be placed, in their crates, onto the display table”. [Emphasis added]

8. In reaching that conclusion, his Honour rejected three other possible explanations - that the grape was missed by the overnight cleaners; that the grape was dropped by a customer after the store opened at 10am; or that the grape was lodged in a black safety mat on the floor next to the display table and was dislodged and came to rest where Ms McQuillan ultimately fell, when the safety mat was removed by the two Woolworths employees (from the meat department) at 10:05am.

9. His Honour found that there was no evidence that the system of inspection and cleaning of the supermarket could be improved. That system included:

• overnight cleaning which finished at 7:00am;

• instructions given to all employees to be constantly on alert to any material - in particular grapes - if on the floor, and to clean, pick up or to deal with such material immediately;

• signs on the floor warning staff and customers to look out for grapes and to pick them up and dispose of them; and

• hourly floor inspections by staff, referred to as “service zero” inspections, prompted by an announcement and a bell over the PA system, commencing just before 10am on a Sunday, when each staff member was to inspect their designated area and assess and deal with any slip risk.

10. His Honour said:

…I find that in respect of the sweeping, mopping and buffing of the floor, and in respect of the mats that were in place around the specials stand, that that was appropriate, and that the training given to the staff in general terms was more than appropriate, particularly with the placement of signs for staff in the rear areas and on the shop floor in respect of other signs.

11. His Honour identified the question for determination as whether or not there had been a casual act of negligence in the system that was in place. On that question his Honour made four relevant findings:

1. that Mr Skantzos undertook two inspections of the store, including the produce section, at 8:30am and 9:30am on the day of the accident. Mr Skantzos gave unchallenged evidence that he inspected the produce area and observed that the floor was “clean and ready for trade”.

2. that the two Woolworths’ staff assigned to the produce area (an acting manager and an assistant) could not be identified by Mr Skantzos in the CCTV footage of the produce area covering the period from shortly after 10am to the time of Ms McQuillan’s fall.

3. that in accordance with the system described above, there would have been a pre-10am bell call for inspection by staff, being the “service zero” inspection.

4. that there was no evidence “whether inspection by the produce persons was in fact carried out” in accordance with the system. His Honour had earlier noted that no person from the produce area had been called or was available to give evidence as to what they did on that Sunday in respect of the cleaning system.

Negligence

12. His Honour did not specifically identify the risk of harm for the purposes of s 5B of the Civil Liability Act 2002 (NSW). Nonetheless, it was common ground that the relevant risk of harm is the risk of an entrant (exercising reasonable care for his or her own safety) slipping on a grape on the store floor.

13. His Honour found that the risk of harm was foreseeable, that it was not insignificant, and that a reasonable person in Woolworths’ position would have taken precautions. His Honour did not consider that reasonable precautions required Woolworths not to sell grapes at all, but then found, without giving reasons, that “the first leg of section 5B, in my mind, has been satisfied”.

14. His Honour’s ultimate finding was:

….I am of the view that on the balance of probabilities, in all likelihood, the grape was on the floor in a position that was not hidden and moved by any person, but was simply just close to the display and overlooked in the busy activity that was no doubt occurring prior to the store being opened.

Causation

15. His Honour turned to s 5D of the Civil Liability Act and causation, which his Honour described as “perhaps more contentious” and said:

The only negligence that can be identified here is the possible negligence of the persons who were in charge of the section, specifically in the delivery of grapes and then in terms of the preparation of a safe area when the doors opened at 10am, that they did not do what was required.

16. After drawing an inference that there was no one who was specifically assigned to the produce area on duty from 10am to the time of Ms McQuillan’s fall, his Honour found that if someone had been on duty in the produce section they would have identified the risk, based on the training given and the warning signs to be on the lookout for grapes on the floor.

17. His Honour concluded that the grape constituted a slip hazard and was the cause of Ms McQuillan’s fall.

18. Although his Honour did not expressly say so, it seems that his Honour’s implicit finding of negligence was that there was a casual act of negligence by the two Woolworths staff in the produce area in the “delivery of the grapes and then in terms of preparation of a safe area when the doors opened at 10am”. (See [15] above). However, his Honour did not make any specific finding as to the nature of the reasonable precautions that the Woolworths’ staff should have taken, but did not take.

Grounds of appeal

19. Woolworths challenges the finding of negligence on the basis of two errors in the primary judge’s factual findings: first, that the grape was on the floor before the store opened at 10am (ground 1); and second, that no one from Woolworths was on duty in the produce section of the store between 10am and the time of Ms McQuillan’s fall at about 10:06am (ground 2). Woolworths also contends that in reaching those findings his Honour erred in reversing the onus of proof (ground 3).

20. Irrespective of the outcome of the factual challenges, Woolworths contends that his Honour erred in finding (if he did so find) that there was a casual act of negligence by an employee of Woolworths (ground 4), that Woolworths failed to take reasonable precautions against the risk of Ms McQuillan slipping on a grape in its premises (ground 5), that Woolworths knew or ought to have known of a grape on the floor (ground 6) and that Woolworths was negligent in failing to remove the grape (ground 7).

21. In support of these grounds, Woolworths argues that his Honour failed to address the question of what “a proper lookout” required in the circumstances, or whether such “a proper lookout” would have resulted in a single grape being observed. Woolworths contends that a finding that there is a single grape on the floor in the produce section of a supermarket is insufficient to establish want of reasonable care and thus breach of duty.

Notice of Contention

22. By her notice of contention, Ms McQuillan seeks to uphold the primary judge’s decision on the following grounds, consistent with her alternative case at trial if it was found that the grape had been dropped on the floor after 10am:

(a)   The subject grape was dropped on the ground by the Appellant’s two staff members who walk past the immediate area, one carrying a mat that was next to the grapes; or

(b)   The subject grape was on the ground prior to the Appellant’s two staff members walking past the immediate area; and

(c)   The two staff members failed to keep a proper lookout and therefore failed to see the grape on the ground; and

(d)   The two staff members failed to pick up the grape and clean the spillage; and

(e)   The actions of those two employees amounted to a breach of duty of care owed by the Appellant to the Respondent; and

(f)   As a result of that breach, the Respondent was injured.

(g)   The Appellant was negligent in that its employees either dropped the grape or failed to detect it as they passed it.

23. It should be immediately observed that Ms McQuillan did not direct any written or oral submissions to support the making of a finding in terms of par (a) of the notice of contention.

24. Before turning to the grounds of appeal, it is necessary to identify the duty of care owed by Woolworths to Ms McQuillan and the way in which Ms McQuillan framed her case in negligence against Woolworths.

Duty of care

25. Woolworths was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the floor: Civil Liability Act 2002 (NSW), s 5B; Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7; Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 at [82].

Breach of duty

26. Whether Woolworths breached its duty of care to Ms McQuillan is governed by s 5B of the Civil Liability Act which provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and not insignificant. Woolworths accepted on appeal that the risk that a person would slip on a grape on the floor after walking on it was plainly foreseeable, and that the risk was not insignificant. The elements referred to in s 5B(1)(a) and (b) are not in dispute.

27. The remaining question therefore is that raised by s 5B(1)(c), whether a reasonable person in the position of Woolworths would have taken precautions beyond those actually taken. Three observations should be made concerning the nature of the reasonable precautions that were in issue at trial in the present case.

28. First, this case is not concerned with whether Woolworths failed to employ a system for the periodic inspection and cleaning of the floor of the store: Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 at [33]. As his Honour found, there was a system of inspection and cleaning in place.

29. Second, nor is this case concerned with a system that was in place, but was less than adequate or less than was required by way of reasonable precautions on the part of Woolworths against the risk of harm to customers and others entering the store: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 at 416. Here his Honour found that the system could not be improved, and senior counsel for Ms McQuillan acknowledged in this Court that there was no suggestion that the system was inadequate.

30. Third, nor is this case concerned with a system of periodic inspection and cleaning that was not in operation at the relevant time. No such finding was sought by Ms McQuillan at trial concerning the “service zero” inspection, and in this Court counsel for Ms McQuillan accepted that a “service zero” inspection of the store was called just before 10am, as Mr Skantzos said in his evidence.

31. Ms McQuillan’s case at trial rested on two contentions. The first was that when the Woolworths’ staff carried out the “service zero” inspection, they “can’t see all the floor”, given Mr Skantzos’ evidence in cross-examination that “they observe whatever they can see”. This contention cannot assist, given Ms McQuillan’s acceptance that the system was not inadequate. It was not alleged that the length of time inspecting the floor during the “service zero” inspections was less than required by way of reasonable precautions on the part of Woolworths.

32. The second contention was that given Woolworths’ staff are required to maintain vigilance for grapes on the floor and to pick up any grapes, this did not occur here because Ms McQuillan slipped and fell on a grape. This contention relied upon the proposition that the Woolworths’ staff in the produce area had not maintained a proper lookout.

33. The primary contention by Ms McQuillan in this Court raised, in effect, a new case, albeit no objection was taken by Woolworths. Ms McQuillan contended that the “service zero” inspection was not conducted in the produce area in the usual way just before 10am because Woolworths’ staff were absent from that area at that time. Her case is that the grape would have been observed and removed if such an inspection had occurred before 10am. Ms McQuillan seeks a finding in her favour that the Woolworths’ staff were absent from the produce area before 10am.

34. Ms McQuillan’s alternative case, the subject of her notice of contention, is that if the grape was dropped on the floor after 10am, then two Woolworths’ staff (from the meat department) failed to maintain vigilance to observe hazards on the floor when passing near the banana stand a few minutes before Ms McQuillan fell in that area. Her case is that the Woolworths’ staff should have observed and removed the grape.

Resolution of factual challenges

Ground 1: When and how the grape came to be on the floor

35. Woolworths submitted that the primary judge made findings which were contrary to the evidence; which the evidence did not support; or which were speculative.

36. In support of the probability that the grape came to be on the floor in the moments, or alternatively, a few minutes before Ms McQuillan had her fall, Woolworths pointed to the systems relating to the inspection and cleaning of the supermarket, the manner in which the grapes in the produce area were restocked on the day of the accident (before 8:30am), and the other systems that were in place, including the “service zero” inspection shortly before 10am. Woolworths argued that these matters made it more likely than not that the grape would have been seen and removed if on the floor in the produce area before 10am on the Sunday morning.

37. Woolworths also argued that it is equally probable that a customer dropped or dislodged a grape after the supermarket opened at 10am and accordingly, Ms McQuillan failed to prove a necessary factual ingredient of her case in negligence: Luxton v Vines (1952) 85 CLR 352 at 359-360; [1952] HCA 19.

38. Ms McQuillan sought to uphold his Honour’s finding that the grape was on the floor before 10am. In writing, Ms McQuillan submitted that this finding was plausible, given Mr Skantzos’ evidence that the grape could have been missed when he last checked the store at 9.30 am.

39. Next, Ms McQuillan argued that it was unlikely that the grape was dropped by a customer – either while obtaining some grapes from the display, or after having obtained some from the display. Ms McQuillan noted that the CCTV footage showed only five customers approach and collect grapes prior to Ms McQuillan’s fall; that all of those customers were adults, which was said to make it relatively less likely that they would drop a grape; that all such customers had placed grapes in a plastic bag; that no customers are seen to walk over the area where Ms McQuillan fell and only one customer walked near that area; and that there is no footage of any customer dropping any grapes, either at the display table or elsewhere.

40. In oral argument, senior counsel for Ms McQuillan submitted that the grape must have been dislodged by the activities of Woolworths’ staff sometime between 9:30am and 10am. This possibility arose, it was submitted, “because other people working in the area could have had something to do with the grapes”. Counsel pointed to evidence given by Mr Skantzos that there were staff moving around the store before 10am attending to “bits and pieces”, including possibly adjusting some price tags.

Decision

41. Starting with Ms McQuillan’s submission that the grape may have been missed by Mr Skantzos during his second inspection at 9.30am, this submission was overtaken by Ms McQuillan’s acceptance in oral argument of Mr Skantzos’ evidence that he found the floor clean and ready for trade following his two inspections of the produce area at 8.30am and 9.30am. Accepting the force of this evidence, counsel for Ms McQuillan submitted that the grape was dropped on the floor sometime between 9.30am and 10am. Thus Ms McQuillan seeks to uphold his Honour’s finding that the grape was on the floor before 10am by a different process of reasoning (and fact finding) to that adopted by his Honour.

42. There are difficulties with the scenario advanced by Ms McQuillan in this Court.

43. First, notwithstanding the evidence of Mr Skantzos that grapes have a propensity to roll, there is no evidence of any actual activities by Woolworths’ staff at the specials display table between 9.30am and 10am that is likely to have dislodged a single grape. So much was acknowledged by counsel for Ms McQuillan. Given Mr Skantzos’ evidence that the whole produce area was about 20 metres in length, and his Honour’s finding that the banana stand was in the middle of the produce area, it seems that if a grape had been dislodged by the activities of Woolworths’ staff, it would need to have rolled about 10 metres (a distance consistent with the estimate given at trial by counsel for Ms McQuillan) without the staff having noticed that the grape had been dislodged and rolled onto the floor.

44. Second, given that there is no evidence that any Woolworths’ staff actually did something with the grapes on the specials display table between 9:30am and 10am, the evidence of Mr Skantzos that the Woolworths’ staff were moving through the store doing “bits and pieces” before 10am does not permit an inference that it is more likely a grape was dislodged by Woolworths’ staff between 9:30am and 10am, than that the grape was dropped by a customer after 10am.

45. Third, the scenario that the grape was dislodged by activities of Woolworths’ staff between 9:30am and 10am is really no more than speculation. Counsel for Ms McQuillan sought to argue to the contrary by submitting that if one worked backwards from the knowledge that there was a grape on the floor where Ms McQuillan slipped (at about 10:06am), then there must have been a grape on the floor between 9:30am and 10am because none of Woolworths staff were present in the produce area at 10am, and if they had been, the usual inspection just before 10am would have identified and removed the grape on the floor. The premise of this argument (that there were no Woolworths’ staff in the produce area just before 10am) did not reflect a finding made by his Honour, but even assuming the premise to be correct, that does not make it more likely that a single grape was dislodged by the activities of Woolworths’ staff between 9:30am and 10am. Reasoning backwards from the later fall does not assist Ms McQuillan’s case.

46. Ground 1 has been made out and his Honour’s factual finding should be set aside.

Grounds 2 and 3: The two Woolworths’ produce employees and the reversal of onus of proof

47. Grounds 2 and 3 are related and may be dealt with together.

48. Woolworths challenged his Honour’s finding that the two Woolworths’ produce employees were absent from the produce area from the time of opening of the store at 10:00am to the time of Ms McQuillan’s fall. The significance of this finding requires some brief explanation.

49. As mentioned, his Honour’s implicit finding that there was a casual act of negligence by Woolworths’ staff was directed to the delivery of the grapes to the specials display table and the preparation of a safe area of work in the produce area before the store opened at 10am. His Honour’s finding that no Woolworths’ staff were assigned to the produce area from 10am to the time of Ms McQuillan’s fall was directed to the issue of causation (see [15] above). That is, had the Woolworths staff been present after 10am then they would have observed and removed the hazard presented by the grape on the floor.

50. Woolworths submitted that his Honour erred in making this finding based on what he could not see in the CCTV footage. Woolworths argued that the finding was contrary to the unchallenged evidence of Mr Skantzos that the two employees were on duty at the time; that the available CCTV footage was not determinative as to whether the two employees were present in the produce area, nor did it mean that they did not carry out an inspection of the produce area prior to the opening of the store at 10am in accordance with the systems described by Mr Skantzos, or that they were not carrying out their duties between 10:00am and the time of Ms McQuillan’s fall.

51. Woolworths further submitted that this finding in relation to the staffing arrangements in the produce section effectively reversed the onus of proof and required Woolworths to prove: that there were employees on duty in the produce area between 10:00am and the time of Ms McQuillan’s fall; and that the two employees carried out adequate inspections of the produce area.

52. Ms McQuillan sought to uphold his Honour’s finding. Two matters were emphasised. One was that there was no evidence about what the acting produce manager and the employee assisting him were doing and where they were after 10am on the day of the accident. The other was that Mr Skantzos accepted in cross-examination that he could not identify anyone from the produce area in the CCTV footage. It was submitted that it was entirely open to his Honour to find, as he did, that there were no Woolworths’ staff members assigned to the area where Ms McQuillan fell.

53. In oral argument, counsel for Ms McQuillan emphasised that the two produce employees are not seen moving out of the frame at or shortly after the beginning of the CCTV footage of the produce area (which commenced at 10:00:14am). Counsel submitted that the natural inference is that those employees were not in the produce area shortly before 10am to perform the “service zero” inspection, because it was glaringly improbable that the two produce employees could perform the “service zero” inspection shortly before 10am and then get out of the CCTV footage commencing 14 seconds after 10am.

54. Counsel for Ms McQuillan also submitted that Woolworths bore an evidentiary burden to call those employees to establish the counter proposition that they were present in the produce area.

Decision

55. Two aspects of his Honour’s reasoning require consideration in relation to this factual challenge. One is the reliance placed on what cannot be seen in the CCTV footage as evidence that two Woolworths’ staff were not present in the produce area at a particular time. The other is the reliance on a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference against Woolworths by reason of the failure to call the two produce employees.

(i)   error in drawing inferences based on the CCTV footage

56. Woolworths’ submission that the CCTV footage is not determinative of whether Woolworths staff were present in the produce area after 10am, or for that matter before 10am, should be accepted. The video commences 14 seconds after 10am, and it does not show the entirety of the produce area. Mr Skantzos gave unchallenged evidence that “all of the back is not shown” in the screen shot, referring to the produce area, and that the whole produce area was about 20 metres in length.

57. As the primary judge observed, the video is less able to assist in the areas away from the camera, and particularly in the area where Ms McQuillan slipped. This is because the clarity of the video diminishes significantly towards the rear of the area that is shown on the CCTV footage. Further, some parts of the produce area are not shown in the video at all, while other parts are obstructed by items, such as promotional signs hanging from the ceiling. Insofar as persons can be seen in the video (and the photographs) towards the rear of the produce area, it is not possible to identify those persons.

58. Any inference to be drawn from what cannot be seen on the video must be evaluated and weighed in the light of all the evidence. In this regard, his Honour seems to have ignored the following matters.

59. First, Mr Skantzos gave unchallenged evidence that two Woolworths’ staff were present in the produce area when he inspected that area after he arrived at the store at 8:30am and later when he again inspected the produce area at 9:30am.

60. Second, the cross-examination of Mr Skantzos assumed that the Woolworths’ staff were present in the produce area at the time of the “service zero” inspection just before 10am. The following evidence was given by Mr Skantzos:

Q: Those people, the people that normally do it, your staff members, are they normally in the area that they’re assigned to?

A: Yeah, like, someone in bakery will come out through that doorway, look around the back of the department and look around, make sure there’s nothing on the floor, go back to their normal trading, to their duties.

Q: So you said that there was two people in produce on this day from your memory, they would be responsible for the service 0 in that area.

A: Yeah, well, anyone, even me. If they call service 0 and I’m walking through produce, I stop and have a look.

61. Later in cross-examination the proposition was put to Mr Skantzos that when the Woolworths staff carry out the “service zero” inspection they “can’t see all the floor”, to which Mr Skantzos responded that “they observe whatever they can see”. That answer was relied upon by Ms McQuillan in closing submissions at trial for the contention that it was “entirely conceivable that they did not see certain areas”, which undoubtedly was a reference to the Woolworths’ staff in the produce area when the “service zero” inspection was called just before 10am.

62. Third, it not put to Mr Skantzos in cross-examination that the two Woolworths’ staff were not present in the produce area after 10am, or indeed at the time of the “service zero” inspection just before 10am. As counsel for Ms McQuillan accepted in this Court, the absence of such cross-examination of Mr Skantzos presented a difficulty for Ms McQuillan’s case. That difficulty was not addressed by his Honour.

(ii)   error in drawing Jones v Dunkel inference

63. His Honour seems to have drawn a Jones v Dunkel inference against Woolworths by reason of the failure to call the two Woolworths’ staff from the produce area. But the absence of evidence from the Woolworths’ staff cannot be used to fill a gap in Ms McQuillan’s evidence, or to justify an inference that their evidence would have been adverse to Woolworths’ case. The rule in Jones v Dunkel only applies where a party is “required to explain or contradict” something. While evidence that might have been contradicted by a witness can be accepted the more readily if the witness fails to give evidence, the absence of a witness cannot be used to make up a deficiency in the evidence: Jones v Dunkel at 312; Kuhl v Zurich Financial Services of Australia Ltd & Anor (2011) 243 CLR 361; [2011] HCA 11 at [63].

64. In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Gleeson CJ and McHugh J remarked at [51]:

… What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts 'requiring an answer'." (footnotes omitted)

65. The nature of Ms McQuillan’s case at trial has been outlined at [31]-[34] above. Importantly, no submission was advanced by Ms McQuillan at trial that a Jones v Dunkel inference should be drawn against Woolworths by reason of the failure to call the two Woolworths staff from the produce area. The Jones v Dunkel submission was directed solely to the absence of evidence from two other Woolworths’ staff (from the meat department) concerning their activities after 10am. It was not necessary for his Honour to deal with that submission because he did not accept that it was likely that the grape was dropped by those staff when removing the safety mat from the specials’ display at about 10:05am.

66. Having regard to the case advanced by Ms McQuillan at trial, there was no evidentiary burden on Woolworths to call the staff from the produce area, and his Honour erred in drawing an inference against Woolworths in that regard. The contention by Ms McQuillan in this Court, that Woolworths was required to establish the counter proposition that those staff were present in the produce area after 10am, must be rejected. As the above authorities make clear, Woolworths was not required to “establish” that matter in this case.

67. Ground 2 is made out and his Honour’s factual finding should be set aside.

Grounds 4, 5, 6 and 7: Negligence

68. Woolworths submitted that the finding that there had been a casual act of negligence involved error because the primary judge failed to consider what reasonable care required of the employees on duty in the produce area, as well as in respect of the overall cleaning and inspection system.

69. Woolworths further submitted that Ms McQuillan did not attempt to prove, and his Honour did not make any findings, as to what reasonable care required in terms of the minimum frequency or method of inspections by the Woolworths’ staff working in the produce area who had many other duties to perform, including attending to customers.

70. Woolworths complained that the finding of a casual act of negligence necessarily required almost constant inspection of the accident site by the two produce employees whom his Honour inferred ought to have been on duty in the produce area from 10:00am to the time of Ms McQuillan’s fall.

71. In oral argument, Woolworths submitted that his Honour’s ultimate finding (set out at [14] above) is consistent with no negligence. Any implicit finding of negligence by Woolworths’ staff in the produce area assumed, it was submitted, keeping a “perfect lookout”, rather than the exercise of reasonable care to keep a “proper lookout” for hazards and spills on the floor, such as grapes.

72. Woolworths also reiterated its submission that it had not been put to Mr Skantzos in cross-examination that there had been a departure from the system; relevantly, that Woolworths staff had not conducted a “service zero” inspection in the produce area just before 10am, and argued that there was no basis in the evidence for such a finding.

73. Ms McQuillan accepted Mr Skantzos’ evidence that the “service zero” inspection was called in the usual way just before the store opened at 10am, but submitted that the inspection was not adhered to in the produce area (because the Woolworths staff were not present), and that adherence to this inspection would have prevented the grape from remaining on the floor before 10am.

74. In writing, Ms McQuillan contended that Woolworths breached its duty of care owed to customers by failing to ensure it did not drop grapes on the ground (whether through the transportation of those grapes or otherwise), arguing that reasonable care required Woolworths to ensure it “did not itself cause grapes to be on the floor” and if it did so, Woolworths must have been negligent. Counsel for Ms McQuillan described this as a “back up” submission only and did not direct any oral argument to this contention. This contention may be put aside.

Decision

75. Since the finding that the grape was on the floor before 10am should be set aside for the reasons given above (in respect of ground 1), his Honour’s implicit finding of negligence by Woolworths’ staff in the produce area before 10am cannot stand.

76. Nonetheless, for completeness I will deal with Woolworths’ challenge to the implicit finding of negligence on the alternative assumptions first, that the grape was on the floor before 10am and second, that the grape came onto the floor after 10am.

(i)   even assuming grape of the floor before 10am

77. Even if it is assumed (contrary to the conclusion reached above) that the grape was on the floor before 10am, there are difficulties with his Honour’s implicit finding of a casual act of negligence.

78. First, although Ms McQuillan emphasised at trial the concession in Mr Skantzos’ evidence that when the Woolworths’ staff stop and look around during the “service zero” inspection they cannot see the entire floor in the area in which they are working, as already mentioned, Ms McQuillan did not contend that this part of the system was inadequate because the length of the inspection was less than required by way of reasonable precautions by Woolworths. Nor did his Honour make any finding that the service zero inspection was less than adequate as part of the system for monitoring hazards on the floor.

79. Second, insofar as his Honour seems to have reversed the onus of proof and required Woolworths to prove what the Woolworths’ staff in the produce area “did in fact do on the day in respect of the cleaning system”, that was an error. The evidence of Mr Skantzos established the system that was in place, and that the system was in operation at the relevant time. The cross-examination of Mr Skantzos did not establish that departure from the system by the staff in the produce area that called for explanation by Woolworths.

80. Third, the proposition put to Mr Skantzos in cross-examination that it was possible that a grape up close to the base of one of the timber displays could be missed by the Woolworths staff, was consistent with Woolworths’ staff keeping a proper lookout. Further, it was not put to Mr Skantzos that a proper lookout by Woolworths’ staff should have identified the subject grape on the floor in the area behind the banana stand. As his Honour remarked, a grape just close to the display table could be missed in the busy activity in the store before opening. That is not a finding of a casual act of negligence.

81. One further matter should be mentioned concerning causation. Even if (contrary to my conclusion on ground 2) the finding that no-one was assigned to the produce area between 10am and the time of Ms McQuillan’s fall is not set aside, his Honour’s finding on causation cannot be accepted. The system of inspection and cleaning that was in place did not require the presence of the two Woolworths’ staff in the produce area on a full-time basis from the time the store opened at 10am. Nor was it put to Mr Skantzos in cross-examination that Woolworths should have had staff in the produce area from 10am.

82. Plainly, the staff assigned to the produce area had duties that might take either or both of them away from the produce area from time to time. It was not part of Ms McQuillan’s case that Woolworths was required to have each part of the floor under observation for every minute the store was open to customers. Yet that, in effect, was the premise of his Honour’s finding on causation, which is inconsistent with his earlier finding that the system could not be improved.

(ii)   assuming the grape came onto the floor after 10am

83. Assuming the grape came onto the floor after 10am, it is necessary to consider Ms McQuillan’s notice of contention that Woolworths was negligent because of a casual act of negligence by the two Woolworths’ staff (from the meat department).

84. Ms McQuillan submitted that the grape was positioned in a “trafficable” aisle near the banana stand such that it could have been seen by the Woolworths’ staff (from the meat department) who passed over that area and later returned past the same area shortly before Ms McQuillan fell. Ms McQuillan submitted that had the Woolworths’ staff scanned the floor as they walked (as they should have), they would have had the area in their vision and would have seen and removed the grape on the floor.

85. In response, Woolworths submitted that a finding that there is a single grape on the floor in the produce section of a supermarket is insufficient to establish want of reasonable care and thus breach of duty.

83. Woolworths reiterated its earlier submission that all duties of care require only reasonable conduct, not perfection, and that the fact that the Woolworths staff did not observe a single grape on the floor near where they walked does not establish that there was not “a proper lookout” in the sense that otherwise busy employees were not taking reasonable care to observe hazards.

84. Woolworths also submitted that the absence of evidence from the two employees from the meat department cannot be used to fill a gap in Ms McQuillan’s evidence, nor justify an inference that their evidence would have been adverse to Woolworths’ case.

85. The timeline shown on the CCTV footage indicates that the Woolworths staff (from the meat department) walked from the rear of the supermarket and passed the area where Ms McQuillan later fell at about 10:04:49am and that they later returned the same way between 10:05:19am and 10:05:32am. That was a little over one minute before Ms McQuillan fell. There is no evidence as to whether the grape was on the floor before or after the Woolworths’ staff passed the area where Ms McQuillan fell.

86. Let it be assumed however that the grape was on the floor when the Woolworths’ staff first passed that area. Even on that assumption, I am not persuaded that there was a casual act of negligence by the Woolworths staff in failing to observe a single grape on the floor in the area behind the banana stand when passing by that area to attend to other duties.

87. First, keeping a proper lookout in accordance with instructions to maintain vigilance for hazards on the floor, such as grapes, does not mean a perfect lookout. It can be accepted that a visual scan of the entire floor by staff as they go about their busy duties may be impeded by a number of matters, such as, physical objects, or the nature of the other duties being performed. That does not mean that staff have not kept a proper lookout.

88. For example, a visual scan of the floor by staff walking around the store may be impeded by the physical presence of customers, trolleys and baskets, or other obstacles, such as crates and bins, which may affect visual lines of sight. The attention of staff may be directed to answering customers’ requests and questions as they move around the store. Staff may be carrying items or pushing trolleys or crates which require greater attention to what is ahead of them, such as customers or physical obstacles, rather than scanning the floor constantly.

89. Second, having reviewed the CCTV footage, as invited by counsel for Ms McQuillan, it is apparent that there was no relevant occasion for the Woolworths’ staff (from the meat department) to scan the floor in the precise area where Ms McQuillan later fell on the two occasions that they passed near that area. It is necessary to refer in some detail to the following observations based on reviewing the video.

90. The two Woolworths’ staff can be first seen at 10:04:49am walking from the rear of the produce area. As they pass the area behind the banana stand where Ms McQuillan later fell, their path intersects with a customer wheeling a trolley from the direction of the bakery area. As that customer passes in front of the Woolworths’ staff, they move to their right (being the left of the CCTV footage) at 10:04:50am. By allowing the customer to pass in front of them, the Woolworths’ staff do not pass directly over the area where Ms McQuillan later fell. Instead, they come close to the back of the banana stand before making a sharp turn to their left in order to allow another customer to pass between their right side and the back of the banana stand at 10:04:53am. At that point, the Woolworths’ staff are looking towards the customer moving towards them, with their eyes raised and generally looking, it seems, in the direction they were walking towards the front of the store.

91. The Woolworths’ staff (from the meat department) arrive at the specials display table at 10:05:00am. One of them removes a trolley containing produce in crates and the other (wearing a cap) picks up the non-slip matting that was underneath it. It can be seen that the matting is not rigid and folds completely in half when the capped employee picks it up. Holding the matting out in front of his body, the capped employee walks back the way he came past the area where Ms McQuillan later fell. He carries the matting with his torso twisted to the right and with the matting out in front of his body. When he reaches the area where Ms McQuillan fell, he pivots around what seems to be a bin or crate abutting a display table (on his right), and brings the matting from the right hand side of his body, first in front and then over to the left hand side of his body. As his torso is now twisted to the left, his back is to the bin/crate around which Ms McQuillan was moving when she fell. His vision of the floor immediately in front of him would seem to be impeded by the matting he is holding and he has to find his way past several other customers in the area. Whereas Ms McQuillan rounded the bin/crate, this employee passes over the area where she fell and continues before turning right and walking out of the CCTV frame behind a far pylon.

92. While this is occurring, the uncapped employee is seen talking to a customer while leaning against the produce trolley. After finishing the conversation with the customer, the uncapped employee follows the customer towards the rear of the supermarket. That employee is initially a few metres behind the customer to whom he had been speaking, but as they both approach the rear of the banana stand, the employee’s faster pace causes him to come closer to the customer. As they pass near the area where Ms McQuillan later fell, the employee is quite close to the customer and would have been conscious not to walk into her. The customer goes up to the produce stand to which the bin/crate is abutted and the uncapped employee follows the capped employee around the bin/crate and walks in the same direction as the capped employee.

93. In my view, there was no occasion for either of the Woolworths’ staff, exercising reasonable care, to scan the floor specifically near where Ms McQuillan later fell as they passed near that area. That they did not observe the grape on the floor was not a casual act of negligence.

94. The notice of contention should be rejected.

Conclusion and orders

98. The appeal should be allowed. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

99. I propose the following orders:

1. Appeal allowed.

2. Set aside the orders made by the District Court on 22 September 2016 and in lieu thereof order:

1. Amended statement of claim dismissed;

2. Plaintiff to pay the first defendant’s costs in the District Court.

3. Respondent to pay the appellant’s costs in this Court.

100. PAYNE JA: I have read the judgment of Gleeson JA in draft. I agree with his Honour’s reasons and the orders his Honour proposes.

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Decision last updated: 26 March 2018