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Limelight Articles

Limelight 05/24

Mango fandango – fruit fiasco in Gomez v Woolworths

Authors, Stephen Connell , Grace Devery

Personal injury litigation has always had a way of capturing the attention of the general public. Perhaps due to infamous cases like the McDonalds’ “hot coffee” lawsuit in the United States, some people harbour a perception that any injury which occurs following negligence will be compensated.

The recent decision of the Court of Appeal in Gomez v Woolworths Group Limited [2024] NSWCA 121 provides a firm rebuttal of that view and highlights the importance of causation in the law of negligence.

Background

Ms Gomez suffered personal injury at 5:11pm on 31 May 2021, when, in the entrance area of the Woolworths store at the MetCentre in the Sydney CBD, she slipped on a piece of mango and fell.

Woolworths’ staff members had been working in the general vicinity of the fallen mango: one at the coffee counter a few metres away and one in the self-checkout area to the left of the entrance. Another staff member had walked through the area, after finishing work for the day.

CCTV footage demonstrated that the piece of mango was dropped on to the floor at 5:02pm by a customer and became squashed under the feet of other customers as they entered and exited the busy store.

Proceedings

Ms Gomez commenced proceedings against Woolworths in the District Court of New South Wales. She alleged that it had breached its duty of care as an occupier in failing to have in place proper systems of cleaning or inspection, or to follow the systems of inspection it had devised.

Woolworths’ had a “Clean as you Go” policy, by which staff would keep a lookout for spills or contaminants during their work day. It also had a “service zero” call practice, which required staff to stop on the hour and check the store for hazards. The Court accepted that this practice was not followed because no “service zero” call was made at either 4pm or 5pm that day.

First instance

Judge Dicker SC found that Woolworths breached its duty of care because a reasonable person in its position would have ensured that its cleaning and inspection systems were complied with and he was satisfied that the burden of doing so was minimal, and the risk of harm if the systems were not followed was significant.

His Honour did not consider that Woolworths’ staff were negligent for failing to notice the fruit on the floor. One staff member had finished work, one was in the self-serve area and not responsible for the entrance to the store itself, and the staff member at the coffee counter did not have a clear line of sight to the entrance.

Despite finding Woolworths’ negligent for failing to follow its systems, Judge Dicker SC found that causation was not made out. The entrance to the store should have been inspected at 5pm pursuant to the “service zero” call but this would have made no difference because the fruit did not get dropped until 5:02pm.

Appeal

Ms Gomez appealed to the Court of Appeal on the issues of breach and causation. She argued that the Judge Dicker SC had erred in failing to find negligence by reason of the failure of staff to notice the mango (ground 1), and also that his Honour erred on the question of causation (ground 2).

As to ground 1, the Court of Appeal was not satisfied that the factual findings underlying the finding on breach should be disturbed, in short, there was no evidence that Judge Dicker SC proceeded on any incorrect basis in his analysis of breach.

As to ground 2, the Court of Appeal held that the issue of timing was not one that Ms Gomez could overcome. The fact that the mango had been dropped at 5:02pm and Ms Gomez fell at 5:11pm meant that perfect “service zero” inspections at 5pm and 6pm would not have avoided the incident. Ms Gomez sought to argue that evidence showed that these inspections were sometimes not called exactly on the hour, but the Court was not prepared to infer that Woolworths had an obligation to “extend” the operation of the service zero calls in a way which would have avoided the incident.

The Court also held that, if there had been a breach of the “Clean as you Go” policy, the plaintiff had not proven that this was causally relevant. The system was followed by staff in the areas where they were working, and there was no occasion for staff working at the coffee counter to move to the entrance of the store during the relevant period.

Implications

The Court of Appeal’s decision affirms the importance of the element of causation in the tort of negligence. The proof of a breach of duty will not entitle a plaintiff to damages if the outcome would have been the same even if there had been no breach.

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.