Slipping On A Grape Can Be A Compensable Injury Even If Victim Inattentive

Wednesday 25 January 2017 @ 10.22 a.m. | Legal Research | Torts, Damages & Civil Liability

On 14 December 2016, Judge Levy SC of the NSW District Court delivered the decision in Guru v Coles Supermarkets Australia Pty Ltd [2016] NSWDC 349, finding that it is possible to claim compensation if you are injured as a result of slipping and falling, even if at the time you were not looking where you were going.

Nature of the Case and Background

Mrs Sangeeta Guru (the plaintiff), initiated proceedings against Coles Supermarkets Australia Pty Ltd (the defendant), claiming damages for personal injury sustained in a fall at supermarket premises occupied by the defendant. The plaintiff claimed the fall was due to the defendants negligence and the defendant responding to the claim, disputed its liability and in the alternative, raised defences of alleged "obvious risk" and contributory negligence under the provisions of the Civil Liability Act 2002 NSW (the CLA).

The key facts are that on Friday 19 October 2012 around 5.20 pm, the plaintiff had been shopping for groceries at the Cambridge Gardens Coles Supermarket and was walking near an aisle adjacent to open shelves displaying fruit and vegetables when she stepped onto a grape which she had not seen on the supermarket floor causing her to slip forward, loose her balance, fall heavily to the floor, and sustain multiple soft tissue injuries to her limbs and torso.

The Main Issues and Matters for Decision

Judge Levy's judgement [at par 3] identified four main issues as follows:

First - Whether, within the meaning of sections 5F and 5G of the CLA, the presence of a grape or grapes on the floor of the premises constituted an "obvious risk" for a fall by persons shopping in the premises, and if so, did the defendant avoid liability to the plaintiff for failing to warn her of the danger of slipping and falling due to the presence of grapes on the floor;

Second - Whether the defendant owed the plaintiff a relevant duty of care, and whether the defendant was in breach of that duty, having regard to the requirements of sections 5B and 5C of the CLA, and whether any breach, as may be found, relevantly caused the plaintiff’s claimed losses, having regard to the requirements of section 5D of the CLA;

Third - Whether there was contributory negligence on the part of the plaintiff, within the meaning of sections 5R and 5S of the CLA, and if so, to what extent; and

Four - The assessment of the plaintiff’s entitlement to damages.

The Decision

On the first issue: The defendant had argued that the risk of slipping over grapes was "obvious" within the meaning of the CLA and that it therefore, had no duty to warn customers of the risk. An argument dismissed by the Judge Levy, who considered that at the time of the incident the plaintiff was looking at the merchandise on display for sale at the defendant's store, and this was the very purpose of her presence in the store [see par 92-93] as follows:

"During a moment of distraction whilst shopping for merchandise on display, it was entirely understandable that the plaintiff was unaware of risks posed by an existing spillage of grapes or other vegetable matter on the floor. I find that the plaintiff has proven, on the balance of probabilities, that like a reasonable person who would have been in her position at the time, she was not aware of the slipping risk posed by grapes or similar matter on the floor, which the defendant now seeks to characterise as one which was obvious: section 5G(1) of the CLA.

I consider the defendant’s argument to the contrary to be a convenient hindsight analysis and not one based on a prospective analysis as is required: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]."

On the second issue: Judge Levy found that the defendant should have anticipated that its customers would be applying their attention to the merchandise for sale, and given the defendant  wanted its customers to place their attention on the merchandise for sale, the plaintiff's moment of inattentiveness was something the defendant should have anticipated. The plaintiff was entitled to expect the defendant would have adequate and safe systems for maintaining a clean floor, protecting against the risk of customers falling whilst looking for good to buy [see par 117]:

". . . I am satisfied that the defendant relevantly failed to address the risk of harm of the plaintiff falling on fruit or vegetable matter on the floor of the premises. I find that the plaintiff has demonstrated the defendant’s negligence according to the requirements of sections 5B and 5C of the CLA, and that as required by section 5D of the CLA, such negligence was the relevant cause of her injuries."


On the third issue of contributory negligence, Judge Levy rejected the defendants claim that under section 5B(1)(c) of the CLA the plaintiff had "failed to keep a proper lookout", saying at par 123:

"Whilst it is arguable that a reasonable person in the position of the plaintiff would have kept a proper lookout and cast an eye over the floor area where she was intending to walk, that consideration must be tempered by allowing scope for momentary inattention whilst looking at the goods on display. I consider that this is what occurred in this instance. I therefore find that the defendant has not discharged its onus of proof in connection with the third precondition for a finding of contributory negligence on the part of the plaintiff, as required by section 5B(1)(c) of the CLA.

The defendant’s claim of contributory negligence on the part of the plaintiff should be rejected and it is therefore dismissed."

On the fourth issue: In making an assessment of damages Judge Levy noted that the plaintiff continued to suffer from right shoulder pain in her right wrist, associated pain and swelling in three fingers of her right hand with occasional numbness, pain in the back of her neck, back, and right ankle, and constant pain in her right knee. As a result Judge Levy accepted that due to these injuries, the plaintiff was impaired in her ability to do housework and participate in pre-injury hobbies which included exercising, hiking, kayaking, swimming, bushwalking, archery and dance. For these Judge Levy awarded non-economic loss at the sum of $39,500.

The Judge also awarded future economic loss at $40,000, which took account of the fact that the plaintiff may encounter some difficulty in future  work as a beautician due to the injuries. Also awarded were past out of pocket expenses at $1,350.45; future out of pocket expenses at $2,000; and, past domestic assistance at $7,280.  Judge Levy found the plaintiff was not entitled to damages for past economic loss, loss of superannuation, nor for domestic assistance. The plaintiffs total compensation amount being $90,130.45.

One commentator reports that the case is another indication that:

". . . the Courts hold supermarkets to a high standard of duty of care, and that the Court is serious about protecting the safety of shoppers – even if they may not have been watching where they were going."

For a similar set of facts, in a case giving rise to similar "slip and fall issues"  where a plaintiff slipped on a chip outside a super market see Strong v Woolworths Limited: Slip and Fall and Probability relating to the High Court decision in Strong v Woolworths Limited [2012] HCA 5 (7 March 2012).

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Related Articles: