Slip and falls in shopping centres are a common cause of injury.
The High Court recently considered causation in the context of this
type of incident.
The appellant suffered severe spinal injuries when she slipped
and fell in the sidewalk sales area of a Big W located near a food
court within a shopping centre. Having had her right leg amputated
some years earlier, the appellant was mobilised by the use of
crutches. The mechanism of the fall was that her crutch had slipped
on a chip, or alternatively, on the grease left by a chip.
In the High Court it was not in issue that Woolworths Limited
(Woolworths), as owner of the Big W and occupier
of the area, owed a duty of care to entrants onto its premises.
Furthermore, as it was admitted Woolworths did not have any
cleaning system in place for the sidewalk sales area, it was not in
issue that Woolworths was in breach of its duty. The issue was one
of causation: were the appellant's injuries caused by
The principles governing causation are set out in section 5D of
the Civil Liability Act 2002 (NSW), a provision which is
virtually identical to section 11 of the Civil Liability Act
2001 (Qld). These provisions are a statutory restatement of
the common law "but for" test: would the
appellant have sustained an injury but for the
defendant's failure to institute a reasonable system of
cleaning? As per section 5E (or section 12 in Queensland), the
appellant bore the onus of proving, on the balance of
probabilities, any fact relevant to the issue of causation.
The difficulty of proving causation in this case is one common
to many other slip and fall scenarios. Put simply, there is usually
no way of knowing when the slippery substance was deposited.
Woolworths conceded that in the circumstances, a reasonable
system of cleaning required periodic inspections of approximately
15 minute intervals. As the shopping centre opened to the public at
8:00am and the appellant's fall occurred at 12:30pm, the
appellant was therefore required to prove that it was more probable
than not that the chip was deposited in the four hours and fifteen
minutes prior to 12:15pm.
The NSW Court of Appeal found there was no evidence which could
determine how long the chip had been in place. A friend of the
appellant's who was with her at the time of the incident was
memorably asked in cross-examination by counsel for Woolworths:
Q. I don't suppose you touched the chip to see if it was
still warm did you?
A. No I didn't.
The Court of Appeal concluded that the chip had probably been
dropped by a nearby person eating lunch, as the court considered
people more frequently eat chips at lunch.
Contrary to the Court of Appeal, a majority of the High Court
(French CJ, Gummow, Crennan and Bell JJ) held that there had been
no basis for concluding that chips were more likely to be eaten for
lunch than for breakfast or as a snack during the course of the
The High Court also held that it was not fatal to the
appellant's case that she could not point to any evidence about
when the chip came to be outside Big W. Instead, she was only
required to prove on the balance of probabilities that
Woolworths' negligence was a necessary condition of her
As the depositing of the chip was assumed to be a hazard with an
approximately equal likelihood of occurrence throughout the day,
the High Court accepted the appellant's argument that
theoretically the probabilities favoured the conclusion that the
chip was deposited in the longer period between 8:00am and 12:15pm
than the shorter period between 12:15pm and the time of the fall.
The appeal was therefore allowed as the appellant had proven that
she would not have suffered her injuries but for Woolworths'
failure to clean the sidewalk sales in the fifteen minutes prior to
This case is a reminder that retailers owe a duty of care in
respect of the sidewalk area outside their premises which is used
The case may also encourage plaintiffs in slip and fall
scenarios by indicating evidence supporting causation is not
essential – it is sufficient that they
'theoretically' demonstrate it more likely that they would
not have suffered injuries but for the defendant's
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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