Australia: Determining Causation - the High Court rules on consumption of hot chips

Curwoods Case Note
Last Updated: 10 March 2012
Article by Kate Blue

Judgment date: 7 March 2012

Strong v Woolworths Limited [2012] HCA 5

High Court1

  • The determination of factual causation under s 5D(1)(a) of the Civil Liability Act 2002 (CLA) is a statutory statement of the "but for" test of causation. That is, the plaintiff would not have suffered injury but for the defendant's negligence.
  • Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the plaintiff's injury.
  • The onus of proof can be discharged by consideration of the probabilities in circumstances where the evidence does not establish when a spillage occurred.


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 12.30 pm 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 sidewalk area was not inspected in the four and a half hours between the time when the area was set up for the day's trading and the time of the plaintiff's fall.

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

It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area, and that on the day of the plaintiff's fall Woolworths did not have any system in place for the periodic inspection and cleaning of the area.

Section 5(D) Civil Liability Act (CLA) 2002

Section 5D of the CLA relevantly provides:

  1. "A determination that negligence caused particular harm comprises the following elements:
  1. that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
  2. that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
  1. In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

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.

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 was 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 unanimous 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.

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. The Court found that the likelihood was that the chip had been deposited at lunchtime. 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 Court of Appeal overturned the trial judge's decision.

The plaintiff appealed to the High Court.

High Court Decision

The majority of the High Court (4:1) allowed the plaintiff's appeal.

The primary issue on appeal to the High Court was the correctness of the Court of Appeal's conclusion on causation. The issue raised on appeal did not turn on the Court of Appeal's analysis of proof of factual causation under the statute but rather focused on the familiar difficulty in spillage cases of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff's injury when it is not known when the spillage occurred.

In issue was the correctness of the Court of Appeal's conclusion that it was not open to infer that the chip had been on the ground long enough for it to have been detected and removed by an adequate cleaning system.

The plaintiff submitted that the Court of Appeal had adopted an unduly restrictive interpretation of s 5D of the CLA. In particular the plaintiff submitted that the Court of Appeal's interpretation of the words "factual causation" excludes consideration of factors which make a "material contribution" to the harm. The plaintiff submitted that this interpretation would require Woolworth's negligence be the "sole necessary condition of the occurrence of the harm".

This submission by the plaintiff was rejected by the High Court on several grounds. Whether negligent conduct resulting in a material increase in risk may be proof of causation under the common law of Australia is not something that had been considered by the court and did not require consideration on the facts of this case.

Woolworths submitted that it was necessary for the plaintiff to point to some evidence to confirm that the chip had been deposited more than fifteen minutes before her fall. This submission was rejected.

Whilst it was incumbent on the plaintiff to prove that it was more probable than not that Woolworth's negligence was a necessary condition of her fall, this onus could be discharged by consideration of the probabilities in circumstances where the evidence about when the chip was deposited was not definite.

The High Court referred to the decision of Kocis v S.E. Dicksons Pty Ltd2. In this decision Hayne JA suggested a factual circumstance in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. A plaintiff must prove his or her case on the balance of probabilities.

The Court of Appeal rejected reasoning along these lines because it found that the deposit of the chip was not a hazard with an approximate equal likelihood of occurrence throughout the day. The Court of Appeal made this conclusion on the basis that chips are a type of food that people eat for lunch, secondly, the plaintiff's injury occurred at lunchtime and thirdly a second cleaner was engaged for the hours over lunch which was suggestive of an increased risk of something being dropped during this period.

The High Court held, however, that the evidence did not permit a finding of when, in the interval between 8.00 am and 12.30 pm, the chip came to be deposited in the area. Accordingly, the High Court held that it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground long enough for it to be detected and removed by the operation of an adequate cleaning system.

The High Court, adopting the reasoning in Kocis held that the probabilities favoured the conclusion that the chip was deposited in the longer period between 8.00 am and 12.10 pm, and not the shorter period between 12.10 pm and the time of the fall. The High Court held reasonable care required inspection and removal of spillages at intervals not greater than 20 minutes in the sidewalk sales area, which was adjacent to the food court.

In the judgment, the High Court speculates; "There was no basis for concluding that chips are more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning".

Heydon J dissented on the basis that the plaintiff had the legal or persuasive burden of proof, and did not establish on the balance of probabilities that the chip was dropped earlier than 12.15 pm.


This is not a case which examines and determines criteria for a reasonable system of cleaning. In this case it was accepted that there was no cleaning system in place.

Nor is this a case which interprets the legislative intent and meaning of s 5D of the CLA outside of well recognised common law principles. The plaintiff's submissions on this were rejected.

This is a case which deals with the familiar difficulties in slipping cases of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff's injury when it is not known when the slippery substance was deposited.

This decision, potentially, has far reaching implications.

The High Court confirmed that it is not necessary for a plaintiff to have evidence as to when an offending slippery substance was deposited. Whilst a plaintiff must show that it was more probable than not that the negligence was a necessary condition of the harm, this onus can be discharged on the balance of probabilities, where there is a lack of evidence.

We anticipate that this decision will encourage plaintiffs to commence proceedings, even in circumstances where there is no evidence as to how long the slippery substance had been on the floor.

As a consequence of this decision, we consider that it remains important for an occupier of commercial premises to ensure that there is an adequate system of cleaning implemented, and to be able to demonstrate and prove it was in place on the day a person is injured. The frequency of the cleaning regime will vary depending whether the accident occurred in an area where spillages are inherently likely to occur, such as a food court, or in low risk areas away from the food court.

Whether the statutory determination under s 5D of the CLA may produce a different conclusion to the conclusion yielded by the common law is not a question raised by the facts of this appeal and awaits determination in an appropriate case.


1 French CJ, Gummow, Heydon, Crennan and Bell JJ

2[1998] 3VR 408

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