The Grape Escape from Liability – Plaintiff fails to prove a breach of a supermarket’s duty of care

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By Scott Moloney, Partner and Kate Heremaia, Paralegal

In September 2017, Ms Buljat (the Plaintiff) slipped on a loose grape, and fell to the ground while shopping at a Coles supermarket store in Woden, Australian Capital Territory (the accident) . The Plaintiff alleged to have sustained injuries that resulted in ongoing disabilities.

She brought a suit against Coles Supermarkets (the Defendant) in negligence under the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act), alleging that the Defendant had breached its duty of care to her by allowing loose grapes to be available in the store, and by not implementing sufficient cleaning procedures.

On 18 March 2022, Balla AJ of the ACT Supreme Court handed down a decision in favour of the Defendant, finding that the Defendant had not breached its duty of care towards the Plaintiff – Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47

Background

The Plaintiff was walking through the meat section of the Coles store when she slipped and fell, landing on her right shin. After she had fallen, she saw a trail in front of her leading to a squished grape.

A store employee, who did not witness the fall, but came across the Plaintiff shortly afterwards, confirmed that she too saw a smashed grape in the vicinity of the Plaintiff.  The employee thought it likely the Plaintiff would have stood on the grape, taken a step and then fallen as she took her next step.

The Plaintiff’s case

The Plaintiff alleged that the Defendant failed to take reasonable precautions against the risk of harm because it allowed loose grapes to be available to customers despite knowing that customers regularly slipped on them, and that the Defendant failed to implement or operate a reasonable system of period cleaning.

The Plaintiff relied on Strong v Woolworths Ltd [2012] HCA 5 which had determined that Woolworths had been negligent in a slip and fall case by not implementing periodic cleaning and inspection procedures.  She also relied on Prasad v Woolworths Limited [2017] NSWDC 79 where the Court found Woolworth’s “Clean as you Go” system was insufficient (and ultimately negligent).

The Plaintiff called two store employees to give evidence, and they confirmed that the store was not cleaned while it was open to customers and that grapes were the most common item on which customers would slip.  They also gave evidence as to the Defendant’s “Clean as you Go” system and that they actively looked out for spillages and hazards – the Plaintiff also alleged that there was no evidence to substantiate at the staff members had actively conducted visual spot checks.

The Defendant’s case

In relation to Strong, the Defendant submitted that the decision was not determinative – that is, the case was not a “directive a directive from the High Court as to how cleaning should be undertaken in commercial premises in Australia”, and that there were many other authorities that considered alternate systems.

The Defendant also submitted that the circumstances of the Plaintiff’s accident should be distinguished from Prasad, because the Defendant’s internal policies and training did require employees to actively observe for hazards and remedy the hazard if observed.

This contention was supported by the evidence of the two store employees called by the Plaintiff, and also by the findings in Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183 (namely that the ‘Clean as you Go’ procedure was a formally implemented one that required employees to clean spillages etc. if observed).

The Defendant also relied on Woolworths Ltd v McQuillan [2017] NSWCA 202, submitting that “keeping a proper lookout does not mean a perfect lookout”, and that the “Clean as You Go” procedure was a sufficient and reasonable cleaning procedure, even if it was not formally recorded or periodic.

Decision

Acting Justice Balla found in favour of the Defendant for the following reasons:

  • The Defendant’s “Clean as you Go” system required that employees actively look out for spillages and hazards;
  • There was no evidence adduced at the hearing to the effect that the Defendants’ employees failed to comply with their training; and
  • The onus of proving a breach of a duty of care by the Defendant lay on the Plaintiff, who failed to do so in this case.

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