Plaintiff’s $151,000 grape claim squashed by the Court of Appeal
Aug 2017 |Woolworths Ltd v McQuillan [2017] NSWCA 202
In brief
Woolworths has successfully appealed the New South Wales District Court’s findings that its staff members were negligent for either causing the suspect grape to fall to the ground or failing to identify it on the ground just after the store had opened.
The Court of Appeal found the inferences of the judge at first instance were not correct, and Woolworths’ staff were not required to keep a ‘perfect’ lookout.
District Court finding
On 25 November 2012, Ms Colleen McQuillan slipped on a grape at 10:06am in the produce section of Woolworths Leichardt, suffering injuries. The store had only opened six minutes earlier. It was argued by Woolworths, and accepted by the plaintiff, that staff had been appropriately trained to identify and clean up hazards on the floor of its stores. It was also accepted that, if the system was operational, nothing further was required.
However, the plaintiff argued that two staff members assigned to the area did not identify the grape and so the system was ineffective in the circumstances.
The District Court ultimately found that the grape dropped to the floor ‘after or at the time the grapes were brought…onto their display table’ and it was overlooked during the busy store opening period.
Ms McQuillan was successful at first instance and awarded $151,000 plus interest and costs.
Finding on appeal
The real issue for the Court of Appeal to consider was whether a reasonable person in Woolworths’ position would have taken
precautions greater than the ones they took. The majority of the Court of Appeal found that the two staff assigned to the area were
in the area at the time (direct evidence to that effect was provided by a manager) appropriately monitoring the produce section. Their Honours were not convinced that an inference could be drawn that the grape had fallen at any particular time or before the store opened.
Further, and very fortunately for Woolworths, the court held that its staff members' failure to identify one single grape on the floor did not constitute a casual act of negligence. Justice Gleeson said, ‘keeping a proper lookout in accordance with instructions to
maintain vigilance for hazards on the floor, such as grapes, does not mean a perfect lookout’.
Comment
Much of the court’s decision came down to the fact that Woolworths had in place an appropriate and operational system of inspection and cleaning. To succeed, Ms McQuillan’s case would have had to suggest that each part of the floor be under observation every minute the store was open, which would have effectively invoked strict liability against Woolworths.
This case is very favourable to defendant occupiers and their insurers. If there is strong evidence in a matter that demonstrates an appropriate and operational inspection and cleaning system was in place at the time, defendants can take comfort in this decision to defend those matters.
A more detailed analysis of this case will be included in the next edition of Carter Newell’s Injury Liability Gazette.