March 17, 2012

Retail duopolist Woolworths was last week ordered by Australia’s High Court to let go the $580,000 injury compensation damages ruled owing in August 2009 to Taree invalid Kathryn Strong.

A lower-limb amputee, Strong had fallen to the floor in September 2004 after one of her crutches landed on a greasy chip, assumed to be from a nearby food court eatery. She had been shopping with her daughter and a family friend, wandering between racks of potted plants displayed for “sidewalk sale” outside the entrance to the Big W Taree City Centre store.

Woolies stalled the payment with a successful appeal in 2010 but last week’s decision is final and pay up they now must. The further appeal to the High Court concerned the “familiar difficulty in slipping cases” of establishing “causation” between the absence of an adequate cleaning system and any resulting injury when it is not known how long before, the food remains had been spilled.

Unlike most cases confronting slip & fall plaintiffs, Big W conceded it had no system for the periodic inspection and cleaning of the sidewalk sales area. Merely instructing staff and the front entrance “greeter” to be on the lookout for spills, just did not cut it: it did not amount to any “system” at all.

At contest was whether – even if they had deployed a reasonable inspection system – say with 15-minute cleaning rotations, the debris would have been spotted and the fall prevented. Woolies argued it was more likely than not that the chip had been dropped since midday, after the start of the food court lunch hour rush and most likely, after 12.15 pm and thus undetectable by the hypothetical quarter-hour cleaning rotation.

This somewhat simplistic contention found favour with three state appellate judges who held there was no basis for concluding that the chip had been floor-resident for a sufficiently long period to have been detected by a reasonable surveillance regime.

Such a conclusion was emphatically rejected in last week’s judgment.

Finding there was no basis to infer that junk food was more likely to be eaten for lunch than for breakfast or a snack, the four-judge High Court majority ruled it equally probable that the food fell to the floor during any quarter hour interval since start of trading at 8:00am, as it was to have occurred in a quarter-hour period after midday.

By corollary, it must have been more probable that the food spill had actually occurred at some time in the first four or so hours of trading, than in the period immediately preceding the plaintiff’s fall. “That there is another possibility ….is no answer to the question whether something has been demonstrated…. on consideration of the probabilities”.

Thus with no evidence that the chip had been on the floor for an extended period or even for example that “it was dirty and cold to the touch”, the plaintiff was allowed to succeed on time period probability, in the absence of evidence from Big W that the spill hadn’t occurred in an earlier time slot.

Section 5D(2) of the Civil Liability Act 2002 (NSW) – identical to s 11 in the Queensland Act that permits proof of causation in “an exceptional case” where the “but for” test is not otherwise satisfied –  was considered at length, with the High Court concurring with the interpretation of the appeal court below.

“The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm”. As at common law, the High Court has affirmed that the statutory codes allow recovery where for example “there are multiple contributing factors to the injury …. or where one factor resulted in a material increase in the risk of injury even though there were other greater contributing factors”.

This decision – in relation to how probabilities should be addressed – will no doubt breathe life into many a slip & fall claim.

The conceded absence of any regular cleaning rotation eased the path for our plaintiff. However Strong represents a major shift in the proof-of-fault dynamic: the forensic advantage hitherto enjoyed by defendants over their unsuspecting customers – ignorant of debris dwelling duration – has, in all probability, been eliminated.

Strong v Woolworths & anor [2012] HCA 5

Categories: Personal Injury , Litigation & Law Practice

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