Strong v Woolworths Limited: Slip and Fall and Probability

Wednesday 7 March 2012 @ 2.21 p.m. | Torts, Damages & Civil Liability

The High Court of Australia has today handed down its judgment in Strong v Woolworths Limited [2012] HCA 5 (7 March 2012) providing some interesting new challenges to those dealing with personal injury laws and insurance.

Factual Background

In this case the appellant suffered serious spinal injury when she slipped and fell while at the Centro Shopping Complex in Taree.  When she fell she was in the sidewalk sales area outside the entrance to the Big W store which was under the care and control of Woolworths Ltd the first respondent.  The appellant was disabled having, some years before these events, had her right leg amputated above the knee.  The appellant required the aid of crutches to walk and on the day of the accident, the tip of her right crutch had come into contact with a greasy potato chip that was lying on the floor of the sidewalk sales area which caused the crutch to slip out from under the appellant and resulted in her heavy fall.

Nature of proceedings

The appellant brought proceedings in the NSW District Court claiming damages for negligence against Woolworths and the second respondent, CPT Manager Ltd, the owner of the Centre and successfully obtained judgment against Woolworths while the claim against CPT was dismissed.  Woolworths appealed to the New South Wales Court of Appeal where it was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area and neither was it questioned that, on the day of the appellant's fall, Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area.  However, the Court of Appeal held that the appellant had failed to prove that Woolworths' negligence was a cause of her injury and allowed the appeal setting aside the District Court judgment and dismissing the proceedings.

                        The result

The appellant appealed to the High Court against the decision of the Court of Appeal and that appeal has been allowed by a majority of four to one.

The key issues in the matter were causation resulting from the absence of an adequate system for periodic inspection and cleaning of the side walk. Whether factual causation under the Civil Liability Act 2002 (NSW) s 5D excludes notions of "material contribution"? Whether the appellant had proved factual causation under s 5D(1)(a) of  the Act and whether open on evidence to apply probabilistic reasoning .

The main flaw in the appellant’s case had been that she had been unable to provide actual evidence of how long the chip had been on the floor.

The court found that:-

“Woolworths' submission was that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited.”

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