Australia: Causation and the Evidentiary Burden : Strong v Woolworths Limited [2012] HCA 5

Last Updated: 17 March 2012
Article by Wendy Blacker and Brianna Edwards


On 7 March 2012 the High Court of Australia handed down its judgment in the matter of Strong v Woolworths Limited [2012] HCA 5, allowing an appeal in a slip and fall case and, in doing so, has revisited the law on causation. The decision addresses the evidentiary difficulties in slip and fall cases, and has potentially far-reaching consequences for insurance, public liability and personal injury law.


On 24 September 2004 the appellant was inspecting pot plants at the sidewalk sales area outside the entrance to Big W at Centro Taree Shopping Centre (the Centre). The sidewalk sales area was under the control and care of the first respondent, Woolworths Limited (Woolworths) trading as Big W. The appellant is disabled, and at the material time, walked with the aid of crutches as a consequence of having her right leg amputated above the knee. At approximately 12.30pm the appellant slipped and fell after her right crutch came into contact with a greasy chip on the floor of the sidewalk sales area.

At the time of the incident, the appellant was with her daughter and a friend, Mrs Hurst. After the appellant's fall, the appellant noticed a grease mark on the floor where her crutch had slipped, which her daughter later described as being 'as big as a hand'. Her daughter and Mrs Hurst both saw a chip on the ground.

The second respondent, CPT Manager Limited (CPT), was the owner of the Centre. CPT had a contract with a cleaning services company which required that the Centre's floors were to be free of rubbish and spillages. The contract also specified that the maximum time between cleaning inspections for common areas of the shopping mall (such as the sidewalk sales area) was 15 minutes. Ms Walker, the cleaner employed by the cleaning services company, gave evidence that the sidewalk sales area was inspected and cleaned every 20 minutes. Prior to the appellant's fall, the sidewalk sales area had last been inspected at 8.00am that morning.


The appellant initiated proceedings in the District Court of NSW against Woolworths and CPT. She particularised Woolworths' negligence as including its failure to institute and maintain an appropriate cleaning system so as to detect spillages and the like in the sidewalk sales area. Woolworths acknowledged that it did not have an appropriate system in place on the day of the incident for the periodic inspection and cleaning of the sidewalk sales area.

The primary judge stated that Woolworths, as the occupier of the sidewalk sales area, owed a duty of care to persons coming with it. The essence of his reasoning was as follows.

If other people could see [the grease mark] apart from the [appellant] after the event, then it begs a serious question as to why it was not seen by an employee of [Woolworths] in those particular circumstances, and it should have been removed either by [Woolworths] or [Woolworths] alerting a cleaner to remove it, which was entirely open to [Woolworths] to do, and if that had been done, the [appellant] simply would not have come to grief.

So therefore [Woolworths] is guilty of negligence.1

The primary judge awarded judgment against Woolworths in the amount of $580,299.12. The appellant's claim against CPT was dismissed.

Woolworths appealed to the New South Wales Court of Appeal, claiming that the primary judge had erred on a point of law, being that the appellant had failed to prove that Woolworths' negligence was causative of her injury. The Court of Appeal found that the primary judge had not addressed breach of duty or causation, requiring it to make a factual finding in relation to causation.

The Court of Appeal found that reasonable care did not require Woolworths to ensure the continuous presence of a person looking out for slippery substances in the sidewalk sales area.2 Rather, periodic inspection and cleaning was all that was required.3 This gave rise to the possibility that, even if periodical inspections and cleaning had occurred, the chip may have been deposited between the last inspection and the time the appellant slipped on it. It found that it was likely that the chip had been deposited at lunchtime, being just prior to the appellant's fall. Accordingly, Woolworths' breach of duty of care (being its failure to clean the sidewalk sales area every 20 minutes) did not make it likely that, had the duty been performed, the appellant would not have suffered harm.

The Court of Appeal concluded that there was no evidence upon which to conclude that it was more likely than not that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system.4 It referred to section 5D of the Civil Liability Act 2002 (NSW) (CLA) and held that the appellant had failed to prove, on a balance of probabilities, that Woolworths' negligence caused her to fall and sustain an injury. The Court of Appeal allowed the appeal, setting aside the judgment of the primary judge and dismissing the proceedings.

Issues on appeal

The appellant appealed by special leave to the High Court. The primary issue on appeal was whether the Court of Appeal had correctly determined the issue of causation. The appellant made a number of submissions in relation to the Court of Appeal's construction of section 5D of the CLA, in particular, that it had adopted an 'unduly restricted interpretation' of the operation of section 5D.5 Woolworths submitted that it was necessary for the appellant to adduce evidence permitting an inference to be drawn concerning when the chip was deposited.

The majority (French CJ, Gummow, Crennan and Bell JJ)

In its judgment, the High Court viewed the plaintiff's appeal as comprising the: ... familiar difficulty 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.6

The High Court determined that the Court of Appeal had correctly applied the statutory test for causation. However, it disagreed with the Court of Appeal's finding that it was not open on the evidence to conclude that Woolworths' negligence was a necessary condition of the appellant's harm. Instead, the High Court considered that: ... proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred.7

The High Court rejected the Court of Appeal's 'speculation' that the chip was likely deposited at lunchtime, and instead held that the deposit of the chip was a hazard with an approximately equal likelihood of occurrence throughout the day.

Accordingly, the High Court allowed the appeal, and ordered that the Court of Appeal's judgment was to be set aside, and in lieu thereof, the appeal to the Court of Appeal was to be dismissed with costs.8

Dissenting minority (Heydon J)

Justice Heydon's dissent focused on the requirement that the appellant bore the evidentiary burden of proving causation, which she failed to discharge. As there was no direct evidence (or much circumstantial evidence) available either way, that is whether the chip was deposited before or after 12.15pm, Heydon J stated that the appeal should be dismissed with costs, arguing that Woolworths should have succeeded on the basis of the placement of the legal (persuasive) burden of proof, which fell to the appellant.

Impact of the decision

This decision appears to follow a modern trend of 'burden shifting' that has emerged in the United States. In 2007, in Kelly v Stop & Shop, 281 Conn. 768 (Conn. 2007) the Connecticut Supreme Court concluded that certain retail enterprises, as defendants, should bear the evidentiary burden of rebutting a plaintiff's claim that the defendant was negligent. This decision was in alignment with the position held by a number of other jurisdictions in the United States.

The High Court's judgment has important implications insofar as insurance, personal injury and public liability law in Australia is concerned. A retail establishment cannot be expected to completely prevent customers from slipping and falling. However the High Court has essentially allowed certain retailers to be held to a higher standard of care than in the past. One might deduce that this case is moving Australian law closer to holding certain retailers strictly liable for injuries that occur on their premises, making such a retailer 'the absolute insurer' of its customers.


1 Woolworths Limited v Strong [2010] NSWCA 282 at [26]
2 Woolworths Limited v Strong [2012] NSWCA 282 at [66]
3 Woolworths Limited v Strong [2012] NSWCA 282 at [66]
4 Woolworths Limited v Strong [2012] NSWCA 282 at [67]-[69]
5 Strong v Woolworths Limited [2012] HCA 5 at [4]
6 Strong v Woolworths Limited [2012] HCA 5 at [4]
7 Strong v Woolworths Limited [2012] HCA 5 at [32]
8 Strong v Woolworths Limited [2012] HCA 5 at [5]

For more information

Wendy Blacker P +61 2 9931 4922 e

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.

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