26 March 2012
The High Court in March 2012 overturned a decision of the Court of Appeal who found against an injured plaintiff following a slip and fall in a side walk sales area outside the entrance to a Big W store.
The facts of the case were that the Plaintiff, Ms Strong was looking at some pot plants for sale outside Big W when the tip of her crutch came into contact with a greasy chip. The crutch slipped out from under her causing her to fall.
There were cleaners on duty and the cleaner gave evidence that the food court area adjacent to the pot plant sales was cleaned every 20 minutes. The pot plant sales area was separate but the cleaners were generally engaged to clean up spillages after they were reported, rather than inspecting the area regularly, like the food court.
The main focus of consideration by both the Court of Appeal and the High Court was whether periodic inspection and cleaning were all that was required and whether the Plaintiff had established that the fall occurred because of a lack of proper periodic inspection.
The High Court found that Woolworths did not need to carry out constant inspections but that an inspection of the floor every 15 minutes by cleaners was what was required. The cleaners gave evidence that they inspected the food court every 20 minutes.
Woolworths submitted that although the inspections were outside the 15 minutes the Court thought was necessary, Ms Strong had failed to prove her case because there was nothing in the evidence to conclude that the chip had been on the floor for more than 15 minutes. As is common in these type of slip cases, Ms Strong could not give any evidence as to how long the chip had been on the floor.
Both the Court of Appeal and the High Court considered questions as to the probabilities of when the chip was deposited. The Court of Appeal said that there was no basis for concluding that it was more likely than not that the chip was not dropped “comparatively soon before Ms Strong slipped”. That meant in effect that if the chip had been dropped less than 15 minutes earlier Woolworths were not negligent because even if they had an inspection system of every 15 minutes, they could not have prevented the fall.
However, the High Court considered various different scenarios in relation to when the chip was dropped. The Court of Appeal had found that due to various factors (chips being food people eat for lunch and the injury occurring at lunch), it was more likely that the chip had fallen during lunchtime. The High Court rejected that finding and said that the evidence did not permit a finding of when between 8.00am and 12.30pm the chip came to be dropped.
In the end the case was determined by a consideration of “probabilities”. Woolworths argued that Ms Strong needed to put to some evidence enabling an inference to be drawn as to when the chip was deposited. The High Court rejected that.
Considering all the evidence, even though there were possibilities that may have occurred to the contrary, the High Court found that “the probabilities favoured the conclusion that the chip was deposited in the longer period between 8.00am and 12.pm”.
The decision means that it does not need to be established for how long a spillage/dropped item has been present. The insurer can still argue that the system of cleaning/inspection was adequate, particularly if spillages occur in an area where the insurer can show there has been regular inspections. The difficulty Big W had in this case was that whilst the food court area was inspected regularly, the sidewalk pot plant area where Ms Strong fell was not. It may have been different had she fallen in the food court.