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…