Australia: Plaintiff ‘slips up’ on causation!

Legal Directions
Last Updated: 25 November 2010
Article by Katie Woolaston

Woolworths Limited v Kathryn Strong & Anor [2010] NSWCA 282


The matter of Woolworths Limited v Kathryn Strong & Anor provides a useful tool to unravel the test that a plaintiff must overcome, when attempting to establish causation in matters brought under the Civil Liability Act ('the Act'). In particular, when can it be found that a negligent act was not 'a necessary condition of the occurrence of the harm' (see section 5D(1)(a) of the Act).


On 24 September 2004, Ms Strong was shopping at the Centro Taree Shopping Centre, and in particular, the Big W store located within the centre (owned by Woolworths Limited). The Big W store conducted 'sidewalk sales' and had two large pot plant stands outside the store and within the centre, creating a corridor entry to the store.

Decades prior to the incident, Ms Strong had undergone a partial leg amputation, and as such, she ambulated with the use of crutches.

Prior to entering the Big W store, Ms Strong 'went to look at the pot plant stand' when one of her crutches slipped on a greasy item on the floor (alleged to be a hot chip), causing her to fall and sustain injury. She commenced District Court proceedings against both the owner of the shopping centre and Woolworths Limited. The company contracted to clean the centre was not joined as a defendant.

Evidence was led to the effect that the staff at the Big W store would keep a look out for spillages, and then contact the centre cleaning staff should cleaning be required.

On the other hand, the centre cleaning staff were under the impression that it was not their role to clean the sidewalk sales area, and would not check that area for hazards. They did however conduct checks of the surrounding area, including a nearby food court, every 15 to 20 minutes.

The matter at first instance

The matter proceeded to hearing at first instance before Robison DCJ. Due to the fall having occurred in an area under the control of Woolworths, His Honour found Woolworths to be liable in negligence, although unfortunately did not specifically address the elements of breach of duty of care and causation. The claim against the owner of the Centre was dismissed.

The Appeal

Woolworths appealed on the basis that the Trial Judge had not adequately considered the prospect that the potential negligence of Woolworths was not the cause of the plaintiff's fall.

It argued that Ms Strong's own concession that she was extra vigilant of potential hazards on the ground (due to a previous fall a number of months prior), demonstrated that reasonable care and skill, if exercised by Woolworths, would not have identified the hazard. On this issue, the Court of Appeal found that Ms Strong was not expected to have the sort of undivided attention expected of cleaners who are tasked to identify and remove floor hazards.

Woolworths then argued that even had they breached their duty of care, the negligent act was not the cause of the plaintiff's fall.

The Court of Appeal considered section 5D(1) of the Act, which provides:

'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)
(b) That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).'

It was found that in these circumstances, factual causation will be evident where it is possible for a court to infer that it is more likely than not that the failure to exercise reasonable care and skill was a necessary condition of the particular harm that the plaintiff suffered. The court found the fall may have been avoided if Woolworths had in place a reasonable system for detecting and removing slippery substances, but could not say it was 'more likely than not'. That is to say, they could not find that the plaintiff would not have fallen had Woolworths taken reasonable care and skill in removing hazards.

Primarily, this was because no evidence had been led as to how long the chip had been on the floor prior to the fall. Whilst the court had the option of drawing an inference that it had been there long enough to be noticed and removed, there was no evidence to suggest that such an inference was more likely than not.

As such, the appeal was allowed and the judgment of Robison DCJ was set aside.


This case raises two interesting points for consideration.

First, it is a reminder to insurers of retail outlets and shopping centres that an area designated for 'sidewalk sales' is likely to fall within the boundary of that particular retail outlet.

The second relates to the court's interpretation of the factual causation test within section 5D of the Act. The court has used the term 'more likely than not' in this instance when attempting to decide between two competing inferences, which appears to be a reversion back to the common law test used by the High Court in the matter of Luxton v Vines (1952). In that matter, the majority of the High Court found that in cases where one explanation for an accident is met with 'reasons of equal sufficiency or insufficiency' for other explanations, causation has not been proven and negligence can not be found.

In any personal injury matter, it ought be remembered that a court can only draw an inference on the issue of causation if it is 'more likely than not', and more specifically, more likely than any alternative.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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