Background

The plaintiff, Ms Buljat, fell after slipping on a grape in a Coles supermarket in Woden, in the ACT in 2017. She suffered a right shin injury in the fall and brought a claim against Coles in the ACT Supreme Court.

The plaintiff’s version of events was that she was walking through the meat section of the store, looking at the food on display, when her right leg slipped and she fell, landing on her right shin. She had not been looking at the floor before she fell, but after she fell, she saw a trail in front of her leading to a squished grape.

Evidence from Coles’ staff supported the plaintiff’s version that she slipped on a grape.

Balla AJ found that the plaintiff slipped and fell forward onto her right shin after stepping on the grape.

Quantum was disputed, but the focus for this article is the dispute as to liability.

The Plaintiff’s Case on Liability

The claim was brought against Coles under the general law of negligence and as occupier of the store pursuant to s168 of the Civil Law (Wrongs) Act 2002 (ACT). 

In support of her case on liability, the plaintiff alleged that Coles was negligent by:

• Having in place an insufficient, or no, reasonable system of periodic cleaning;
• Allowing customers to eat and drop grapes within the store; and
• Selling grapes in open bags.

Balla AJ held that the plaintiff bore the onus was to establish that there were reasonable precautions that should have been taken in line with these allegations.

The plaintiff’s allegations as to selling grapes in open bags and allowing customers to eat the grapes in store were not made out. The plaintiff led no evidence as to appropriate packaging that would have prevented customers from opening them in store, and how Coles ought to have prevented customers from doing so.

Sufficiency of the System of Cleaning & Inspection

The main issue in terms of liability was therefore whether there was an appropriate system of cleaning or inspection.

Coles evidenced its system to be that cleaners cleaned the store before and after hours, but not whilst it was open to customers. During operating hours, a 'Clean as You Go' system (the Subject System) was in place, whereby staff were instructed at all times to keep a lookout for spillages or other hazards and were particularly taught to be on the lookout for grapes.

The plaintiff submitted that the Subject System was not a system of inspection. The plaintiff relied on Strong v Woolworths Ltd (2012) 246 CLR 182 and alleged that the effect of the decision was that a reasonable cleaning system requires documented periodic inspections.

The plaintiff otherwise invited the Court to find that there was no evidence to find that staff carried out spot checks and cleaning duties conscientiously.

Evidence was given by two employees of Coles, and it was not suggested to either of them that staff had failed to comply with their training, or that there was any departure by staff which required explanation by Coles. There was no evidence as to what employees would or would not have been able to see, or even where the grape fell precisely.

Her Honour referred to the analogous case of Woolworths Ltd v McQuillan [2017] NSWCA 202, in which the Court of Appeal was not persuaded that there had been a casual act of negligence by staff in failing to observe a single grape on the floor, because “keeping a proper lookout does not mean a perfect lookout” (at [35]). Her Honour stated (at [35]):

A visual scan may be impeded by a number of matters, such as physical objects, or the nature of the other duties being performed. That does not mean that staff have not kept a proper lookout.

Comments

Her Honour’s decision is an important reminder of the basic principle that reasonable care is the touchstone of discharge of the occupier’s duty of care (and indeed all duties of care).

The existence of a duty of care should not impose an unrealistic burden of perfect performance on an occupier and its staff.

The decision is also a reminder that the onus of proof remains on the plaintiff to show that there were reasonable precautions that the defendant ought to have taken. In the present case, the plaintiff was unable to make out the asserted precautions by argument alone, without the support of expert or other evidence.

It remains to be seen whether an appeal will be filed.

Further information / assistance regarding the issues raised in this article is available from the authors, Lara Mynott, Partner, James Page, Lawyer, or your usual contact at Moray & Agnew.