Australia: Eating chips for breakfast: the High Court encourages slip and fall plaintiffs, considers causation issues

Last Updated: 24 March 2012
Article by Will M Barker
Focus: Strong v. Woolworths Limited [2012] HCA 5
Services: Insurance
Industry Focus: Insurance

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 Woolworth's negligence?

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 morning.

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 harm.

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 her fall.


This case is a reminder that retailers owe a duty of care in respect of the sidewalk area outside their premises which is used for sales.

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 negligence.

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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