Lack of evidence of inspections leads to breach of duty but Plaintiff fails to establish it would have prevented injury

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By Genevieve Barton, Law Graduate

The plaintiff brought a claim for damages against Woolworths Group Limited in respect of personal injuries sustained in a slip and fall accident. On 31 May 2021 at approximately 5:11pm, the plaintiff descended escalators to the entrance of the Woolworths supermarket, where upon entering she stepped on a piece of fruit which led to her falling over and fracturing her right patella. CCTV footage of the entrance showed an unidentified customer dropping some fruit, which was understood to be a piece of mango, as they entered the supermarket at 5:02 pm. Various customers stepped on the fruit before the plaintiff slipped on it.

The assistant store manager finished work at 5:00pm and he left the store shortly after. When he left the store, he walked past the fruit on the floor but did not notice it.

Woolworths had three cleaning and inspection systems in place at the time:

  1. The ‘tidy as you go’ system where staff would endeavour keep everything clean and tidy as they worked.
  2. The ‘sweep log’ where someone three times per day would walk around the store looking for contaminants or hazards on the floor, usually between 7 – 8am, 2 – 3pm, and 6 – 7pm. The store kept record of these inspections.
  3. The ‘service zero’ system where every hour there was to be an announcement over the public address system for each team member to stop what they were doing and look around for any hazards, including slip hazards, on the floor. Team members were meant to look where they were standing and were not expected to move around. No records were kept in relation to compliance, and occasionally the announcement would be late/missed for various reasons.
There was no evidence before the Court that there had been a ‘service zero’ announcement at either 4 pm or 5 pm. Normally, the staff member serving coffee in the takeaway area was the closest person to the entrance and would be responsible for inspecting the front store area when there was a ‘surface zero’ announcement. They were about 5m away from the piece of fruit.

The Court held that Woolworths had breached its duty of care, as the ‘service zero’ inspection system had not been implemented at 4pm or 5pm.

The Court considered previous cases of Strong v Woolworths[1] and Alat v Franklins Pty Ltd[2] where findings were made that inspections for slipping hazards needed to be conducted at 20- and 15-minute intervals respectively. Here, it was held that an hourly inspection was sufficient as the entrance was not an area such as a food court, or where liquids or produce were available. However, because the defendant did not enforce the ‘service zero’ inspections and there were no other additional inspection systems for the entrance, the Court held the defendant had breached their duty of care to the plaintiff.

The Court held that there was no breach of duty on the part of the assistant store manager in failing to detect the piece of fruit as he was off-duty, nor of the coffee-counter employee.

The Court then turned to the issue of causation.

The Court considered that the breaches of duty identified raised ‘significant issues’ as to causation. Dicker DCJ explained:

If the “service zero” inspection had occurred at 5 o’clock it would not have resulted in the fruit being identified as it was dropped at 5:02pm. Similarly, an additional system of inspection in the front of store area at either 5pm or 5:30pm would also not have identified the piece of fruit as the former was before it was dropped and the latter was after the accident. Even if, contrary to my view, an inspection occurred on the quarter hour, one at 5pm would not have located the fruit and one at 5:15pm would have been after the accident.”

Therefore, the Court held that causation was not established by the plaintiff, that is, the breach had not caused the plaintiff’s loss.

This case serves as a reminder to occupiers of supermarkets and food outlets that:

  • They need to have a system of inspection in place for checking for spills and to enforce it.
  • The system should be well documented, to avoid any inference that it was not being enforced.
  • The frequency of inspections should be determined by the level of risk presented by the location, such as the nearby substances present that might be spilled and the amount of foot traffic in the area.
  • CCTV footage can be very helpful on the issue of causation, so it is imperative that this be retained.
[1] [2012] HCA 5; (2012) 246 CLR 182
[2] [2012] NSWDC 104
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