Woolworths (SA) Limited v Drakos - [1992] HCATrans 85

' 'I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1991
B e t w e e n -
WOOLWORTHS (SOUTH AUSTRALIA)
LIMITED

Applicant

and
GEORGE ANASTASIOS DRAKOS

Respondent

Application for special leave
to appeal

BRENNAN J
TOOHEY J

McHUGH J

Woolworths

13/3/92

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1992, AT 12.24 PM

MR K.R. McCARTHY, QC:

May it please the Court, I appear

with my learned friend, MR R.A. SOULIO, for the
applicant. (instructed by Ross & McCarthy)

MS E.F. NELSON, QC:

May it please the Court, I appear with

my learned friend, MR E.G. REINBOTH, for the
respondent. (instructed by Stanley & Partners)

BRENNAN J: Yes, Mr McCarthy?

MR McCARTHY:

If the Court pleases, there is a conflict in

the approach taken by the supreme courts in the various States in relation to what I might call

these slip cases in commercial premises. The
difference in approach is illustrated by the
judgment of the Full Court of the Supreme Court of
South Australia in Brown v Target Australia Pty
Ltd, (1984) 37 SASR 145, and that appears in my
book of authorities at page 23, and of course the
judgment of the Full Court in the case at bar.
With the decisions of the Court of Appeal in

New South Wales in Brady v Girvan Bros Pty Ltd,
(1986) 7 NSWLR 241 - and that appears in my book of
authorities at page 39 - in Sleiman v Franklin Food
Stores Pty Ltd, (1989) Aust Torts Reports - and
that appears in my appeal book at page 1. I am
sorry, I meant to add to that list the decision of
the Full Court of the Supreme Court of Victoria in
Williamson v GJ Coles & Co Ltd, (1985) VR 59. That

appears in the book of authorities at page 79. I
will come back to those cases if I may.
If I might just tarry a moment on the

legislation. So far as I can ascertain, if the
Court pleases, three States have enacted legislation in relation to occupier's liability.
That, of course, was done before the decision of
this Court in Zaluzna. I have included in the book
of authorities the South Australian Wrongs Act, and

of course, being subsection (1) directing that the that appears at page 90, and I refer in particular to section 17C(l), (2) and (3), the most important, liability of an occupier be determined in
accordance with the principles of the law of
negligence which is, of course, now the common law.
An enactment to the same effect, in my

submission, is the Wrongs Act of Victoria. That
appears at page 93 and I refer there in particular
to section 14B and, in my submission, that section
of the Victorian Act in effect enacts what is now
the principles of common law.
To the…

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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Details

Case: [1992] HCATrans 85
Decision Date

CaseChat Overview and Summary

Woolworths (South Australia) Limited sought special leave to appeal from a decision of the Full Court of the Supreme Court of South Australia concerning a slip-and-fall incident. The respondent, George Anastasios Drakos, had suffered injury after slipping on a substance, found to be oil, on the floor of a commercial premises operated by the applicant. The case highlighted a divergence in judicial approaches across Australian states regarding occupier's liability, particularly in the context of "slip cases" in commercial settings.

The central legal issue before the High Court was the correct application of the law to determine an occupier's liability for injuries sustained by a person on their premises. This involved considering the impact of legislative provisions in various states that had codified or modified the common law principles of occupier's liability, especially in light of the High Court's decision in *Zaluzna*. The applicant argued for a consistent approach, referencing decisions from New South Wales and Victoria, while the South Australian Full Court's judgment in the present case represented a different interpretation.

The applicant's counsel drew the Court's attention to legislation in South Australia, Victoria, and Western Australia, which, in their submission, directed that an occupier's liability be determined in accordance with the principles of the law of negligence. This legislative framework was enacted prior to the *Zaluzna* decision. The facts presented indicated that the respondent slipped on oil, and while the floor manager's evidence regarding the presence of oil was not fully accepted, her evidence concerning cleaning and safety measures was. The floor manager's duties included monitoring the floor's condition, and there was also provision for other employees to clean up soiled areas as directed.

Orders