Supermarket’s Grape Escape
August 22, 2017
In Woolworths Ltd v McQuillan  NSWCA 202, the New South Wales Court of Appeal has overturned a District Court decision that Woolworths was negligent in failing to remove a single grape from the floor of the produce area upon which the respondent slipped and was injured. The decision is an outlier in a series of grape cases such as Guru v Coles Supermarkets Australia Pty Ltd (2016) NSWDC 349 and Woolworths v Grimshaw (2016) QCA 274, which have found supermarkets liable in negligence.
The appeal was allowed on the basis that the findings of fact by the trial judge were inconsistent with a finding of negligence. Importantly, the decision highlights that a system of cleaning need not be perfect; as long as an appropriate system is in place, the mere presence of matter such as a grape does not establish that a proper lookout was not observed.
The respondent entered the Woolworths store when it opened at 10.00am and slipped on the errant grape shortly thereafter at around 10.06am.
Woolworths’ system of cleaning included hourly inspections by staff, known as ‘service zero inspections’, which are initiated by a bell and announcement over the store’s PA system, along with signage and directions to staff to be on particular alert for grapes. It was accepted at first instance that there was a bell for the service zero inspection, but there was no evidence that the inspection actually occurred prior to 10.00am, on the basis of CCTV footage. The trial judge found that this system was adequate.
The trial judge considered that the presence of the grape was more likely than not the result of activities of the supermarket staff in the produce area before the store opened. He concluded that the ‘grape dropped after or at the time’ the grapes were restocked at 8:30am. Woolworths was found to be negligent, with the implication that there was a casual act of negligence by the two Woolworths’ staff assigned to the produce area in the stocking of the grapes, then in the preparation of a safe area after opening. The respondent was awarded an agreed amount of $151,000 in damages plus interest and costs.
The factual issues relating to the finding of negligence on appeal were whether there was an error in the trial judge’s finding that the grape was on the ground prior to the store opening and that there were no Woolworths’ staff on duty in the produce section between opening and the incident. Related to these findings was whether the trial judge erred by reversing the onus of proof. Regardless of the factual issues, the issue of whether the trial judge erred in finding that there was negligence was also considered.
On appeal, Gleeson JA, with Basten and Payne JA agreeing, decided all issues in favour of Woolworths. The respondent accepted Woolworths’ evidence that the floor was clean after inspection at 9:30am and consequently asserted that the grape must have found its way onto the floor after this time, but before the store opened.
Gleeson JA found that in the absence of any supporting evidence, there was no reason why this explanation was more likely than the possibility of the grape being dislodged by a customer after opening.
In relation to the finding at first instance that there was no ‘service zero inspection’ at 10.00am, Gleeson JA noted that the CCTV footage was not sufficient to establish that it had not occurred. The framing of the footage did not cover the whole area and needed to be considered in relation to the other relevant evidence. That evidence included that the bell rang for the inspection and the produce staff were on duty at the time. Furthermore, the Court held that the trial judge erred by drawing an adverse inference against Woolworths because it did not call the two staff members from the produce section to give evidence. The evidentiary burden was on the respondent in this regard.
As Gleeson JA set aside the trial judge’s finding that the grape was on the floor prior to 10.00am, the trial judge’s finding of negligence in relation to staff activities prior to 10.00am was also set aside. Nevertheless, his Honour reconsidered whether there was negligence in the scenario where the grape was on the floor both before and after the store opening. In the event that the grape was on the floor prior to the store opening, there was no finding at first instance that the system of cleaning was inadequate or that there was a departure from the system. Moreover, as the trial judge noted, a grape close to the display table could be missed during inspection due to the busy activity in the store. That was inconsistent with a finding of a casual act of negligence.
There were also problems with causation in this scenario as, even accepting that no one was assigned to the produce area between 10.00am and the incident, the other duties of these staff did not require them to be ever-present. A finding of negligence implies that they should have been keeping a constant lookout of the floor, which is inconsistent with the finding that the existing system was adequate.
Similarly, if the grape was on the floor after 10.00am, there was no negligence on the part of two staff members from another section who were in the area shortly before the fall as they are not required to keep a perfect lookout. As his Honour stated:
It can be accepted that a visual scan of the entire floor by staff as they go about their busy duties 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.
The appeal was allowed and the respondent was required to pay Woolworths’ costs in the Court of Appeal and the District Court.
While the case was decided largely on its unique facts, the decision might be important in comparable situations where it is uncertain how long an item that causes a slipping injury has been on the ground, and there is evidence of an adequate system of inspection and cleaning in place. If there is no indication that this system has not been complied with and no obvious oversight by the cleaners, it would be difficult to find a departure from the standard of care and, ultimately, a finding of negligence. Keeping a proper lookout and taking reasonable care to observe hazards does not require a perfect lookout.
Authored by Michael Martin, Partner, Harry Weir, Paralegal, Melbourne
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