Australia: Determining causation within the meaning of section 5D of the Civil Liability Act – Spillage Case

Curwoods Case Note
Last Updated: 9 November 2010
Article by Emma Sheehan

Judgment date: 2 November 2010 . Woolworths Limited v Strong and Anor [2010] NSWCA 282 . New South Wales Court of Appeal1

In Brief

  • In proving causation pursuant to section 5D of the Civil Liability Act 2002 (CLA) the court will be required to make a determination about whether the defendant's failure to exercise reasonable care and skill was a necessary condition of the occurrence of the harm and whether the defendant's failure to exercise reasonable care and skill extended to the harm caused.
  • In deciding whether there has been a breach of duty in slip and fall cases a court must give consideration to what the minimum content of the obligation to take reasonable care to prevent persons from slipping and injuring themselves would have been. The location of the spillage and the time of day it occurred are relevant factors for the court to take into account in determining breach of duty.


CPT Manager Limited (CPT) was the owner of the Centro Taree Shopping Centre. Woolworths Limited (Woolworths) operated a supermarket and a Big W store on level one of the shopping centre. Pursuant to the lease of the Big W store, Big W had an exclusive right to conduct "sidewalk sales" in an area at the front of the shop.

On 24 September 2004 at around 12.30pm the plaintiff was walking between two large plant stands which were situated at the front of the Big W store in the area where Big W conducted its "sidewalk sales". The plaintiff had undergone an above the knee amputation of her right leg decades prior to 24 September 2004. She utilised crutches for mobility. The plaintiff was walking with her daughter and a friend between the two plant stands when the tip of her right crutch slipped on a chip (french fry) causing the plaintiff to fall and sustain injury.

CPT engaged contract cleaners who were required to clean the mall and common areas every 15 minutes. The evidence of one of the cleaners who was on roster the day of the plaintiff's fall was that the cleaning in fact occurred on a 20 minute rotation however, the contract cleaners did not clean the area where the "sidewalk sales" occurred as they were not required to. Big W's employees were required to keep an eye out for any spillages or hazards.

The plaintiff brought proceedings against the defendants, CPT and Woolworths in the District Court claiming damages for negligence.

Section 5D(1) of the CLA provides:

" (1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). "

Section 5E of the CLA provides:

"In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

District Court proceedings

Robison DCJ accepted there was a chip on the floor, that some grease had come from it and that the plaintiff had slipped when the end of her crutch came into contact with either the chip or the grease.

His Honour accepted the plaintiff slipped within the area under Woolworths' control.

Robison DCJ considered whether CPT and Woolworths owed the plaintiff a duty of care but he did not address whether there had been a breach of that duty and whether the plaintiff's injuries were caused by the breach.

The plaintiff gave evidence that she had fallen in a Woolworths supermarket about six months prior to the subject accident and since that time she was even more vigilant in keeping an eye out for spillages or hazards when in public places. The plaintiff also gave evidence that she was walking very slowly when she fell. There was no evidence led as to how long the chip, or the grease mark which was identified after the plaintiff fell, had been present prior to the plaintiff's fall.

Robison DCJ held that CPT had not breached its duty of care to the plaintiff.

Robison DCJ held that Woolworths was the occupier of the area where the plaintiff fell and had

"a duty of care to anyone walking in there. The second defendant (Woolworths) ought to have seen something on the ground in the nature of what has been described by the plaintiff and others....if other people could see it apart from the plaintiff after the event then it begs a serious question as to why it was not seen by an employee of the second defendant in those particular circumstances and it should have been removed either by the second defendant or the second defendant alerting a cleaner to remove it which is entirely open to the second defendant to do and if that had been done the plaintiff simply would not have come to grief. I can put it no more simply than that. So therefore the second defendant is guilty of negligence".

Court of Appeal Decision

Woolworths appealed in respect of the trial judge's failure to properly consider causation in negligence pursuant to ss 5D and 5E of the CLA.

Campbell JA delivered the major judgment and found that Robison DCJ had failed to carry out the appropriate factual inquiries required to satisfy s 5D(1) of the CLA.

Campbell JA held that the statutory test for causation in negligence usually requires a decision about whether a failure to exercise reasonable care and skill is a necessary condition of the occurrence of the harm. In applying s 5D(1), only if the "necessary condition" test and the injury to the plaintiff was caused by the failure to exercise reasonable care and skill can there be causation in negligence.

The Court of Appeal referred to the High Court of Australia's decision in Adeels Palace Pty Limited v Moubarak2 which involved claims brought by two plaintiffs who were shot at the defendant's premises during a New Years Eve function. The plaintiffs alleged that had security personnel been posted at the door of the premises the shootings would not have occurred. The High Court held that causation of damage was not established because "[i]t was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place". In that matter the High Court held that the plaintiffs had failed to prove factual causation by showing that it was more probable than not that "but for" the absence of security personnel the shootings would not have taken place.

In the present case Campbell JA held the critical question in deciding whether s 5D(1)(a) was satisfied was whether it was established that the plaintiff would not have slipped if Woolworths had been exercising reasonable care to the minimum extent required.

Campbell JA held that periodic inspections and cleaning of the "sidewalk sales" were all that was required. He further held that there was no evidence to conclude that the chip had been on the ground for a sufficiently long period of time for it to have been detected and removed by the operation of a reasonable cleaning system. In answering the question whether a reasonable system of cleaning would have detected the chip the evidence suggested the answer was "maybe". In order to establish causation in negligence the answer to this enquiry should have been "more likely than not".

Campbell JA held that the trial judge's reasons did not constitute a proper basis for deciding what it was that Woolworths had failed to do in respect of taking reasonable care for the plaintiff. He further held that the trial judge had not made any determination in respect of whether Woolworths' failure to implement a proper system of inspection and cleaning was causative of the plaintiff falling over and sustaining injury.

As the plaintiff could not establish that Woolworths' negligence was a necessary condition of her harm the trial judge's decision was overturned.


The Court of Appeal has reminded us that a plaintiff must satisfy a court that the defendant's negligence was the cause of their injuries in order to discharge the onus of proof borne by the plaintiff as required by ss 5D and s 5E of the CLA.

This decision demonstrates that even if there was not an adequate system of cleaning in place it does not necessarily follow that the plaintiff will succeed in establishing that the defendant's negligence was causative of the plaintiff's injuries.

Section 5E makes it clear that the plaintiff carries the onus of proving, on the balance of probabilities, the matters referred to in s 5D(1) as proof of causation.

1. Campbell JA, Handley AJA and Harrison J

2. [2009] HCA 48

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