Grape escape – perfection is not the test
Woolworths Ltd v McQuillan  NSWCA 202
On 14 August 2017, the New South Wales Court of Appeal unanimously allowed an appeal bought by Woolworths Ltd of a District Court judgment in favour of Colleen McQuillan, who had slipped and fallen on a grape in the produce section of Woolworths Leichhardt.
The decision confirms the willingness of at least the appellate Courts to find in favour of owners and occupiers of commercial premises in personal injury cases where there is a reasonable system of inspection in place that is being adhered to at the relevant time.
Ms McQuillan attended Woolworths Leichhardt on a Sunday morning in November 2012, shortly after the supermarket had opened at 10am. At 10.06am, in the produce section of the supermarket, Ms McQuillan slipped and fell on a grape.
Ms McQuillan commenced proceedings in the District Court of NSW against Woolworths as the operator and occupier of the supermarket.
Finding against Woolworths, his Honour Judge Maiden SC held that the presence of the grape on the floor was more likely the result of the activities of staff of the supermarket in the produce section before the store opened at 10am.
His Honour also found that the there was no evidence that the system of inspection and cleaning of the supermarket could be improved. The grape was situated too close to the display and overlooked in the pre-opening rush.
After drawing an inference that there was no one specifically assigned to the produce section from 10am to the time of Ms McQuillan’s fall, his Honour found that, had someone been on duty in the produce section, they would have identified the risk of the grape on the floor.
Woolworths appealed this decision, firstly, in relation to his Honour’s findings, and secondly, in essence, on the basis that his Honour erred in finding that there was any causal act of negligence by a supermarket employee.
In unanimously allowing the appeal, Basten JA, Gleeson JA and Payne JA found that factual findings should be set aside because:
- the scenario that the grape was dislodged by the activities of supermarket staff between 9.30am and 10am was speculation; it was just as likely to have been dropped by a customer after 10am; and
- there was no evidence as to whether supermarket staff were present in the produce section after 10am or at the time of a (so called) “service zero” inspection just before 10am. It was therefore not open for his Honour to draw an adverse inference against Woolworths by reason of the failure to call the two supermarket staff from the produce section.
As their Honours had set aside the finding that the grape was on the floor before 10am, it followed that a finding of negligence on the part of any supermarket staff in the produce section before 10am could not be sustained.
Their Honours found that, even if, contrary to their findings, the grape was on the floor before 10am, there was no evidence that the system of inspection was inadequate or that the system was departed from such as to sustain a finding of negligence.
Furthermore, assuming the grape came to be on the floor after 10am, and assuming it was on the floor when supermarket staff passed the area before the incident, their Honours were not persuaded that there was a causal act of negligence. This was because:
- a visual scan of the floor by supermarket staff going about their busy duties may be impeded by any number of matters, such as physical objects or the nature of the other duties being performed. This does not mean staff have failed to keep a proper lookout; and
- it was apparent on the CCTV footage there was no relevant occasion for any supermarket staff, exercising reasonable care, to scan the floor in the precise area where Ms McQuillan later fell when they passed near the area immediately prior to the incident.
Accordingly the appeal was allowed and Ms McQuillan was ordered to pay Woolworths’ costs.
Where there is a reasonable system of inspection in place and which is being adhered to at the relevant time, the Courts, at least the appellate Courts, are willing to find in favour of owners and occupiers.
It is also a good reminder that “reasonable conduct” does not mean a perfect lookout but rather an adequate system of inspection and inspection that is adhered to. The failure to identify a hazard does not necessarily represent a failure to exercise reasonable care although this will depend upon the evidence at trial.
Date: 6 September 2017