Strong v Woolworths  HCA5: Decision
– 7 March 2012
The appellant, Mrs Strong, suffered a serious spinal injury when
she slipped and fell at the Centro Taree Shopping Centre on 24
September 2004. Mrs Strong was an amputee and walked with the aid
She claimed that while she was in the sidewalk sales area, one
of her crutches slipped on a chip which was lying on the floor. The
area was under the care and control of Woolworths.
The litigation that has ensued focuses on 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.
Mrs Strong commenced an action in the District Court of New
South Wales claiming damages for negligence against Woolworths, as
well as the owner of the Centre. She succeeded against Woolworths
(only) on the basis that Woolworths did not have in place an
adequate system of inspection and cleaning of the area. Woolworths
appealed to the New South Wales Court of Appeal.
Court of Appeal
The Court of Appeal applied the statutory test as provided by
s5(D) of the Civil Liability Act 2002 (NSW). Section 5(D)
of the Act requires that the negligence was a necessary condition
of the occurrence of the harm ("factual causation") and
that it is appropriate for the scope of the negligent person's
liability to extend to the harm so caused ("scope of
liability"). Applying the statutory test, the Court of Appeal
held that Mrs Strong had failed to prove on the balance of
probabilities that Woolworths' negligence caused her fall. The
Court of Appeal considered that reasonable care required periodic
inspections and necessary cleaning of the sidewalk sales area at 15
minute intervals throughout the day. It observed, however, that the
likelihood was that the chip had been deposited on the sidewalk at
lunch time and could very well have been on the ground floor for
only a relatively short period of time. The Court therefore found
that the evidence did not establish that the chip had been on the
ground long enough to have been detected, even if an adequate
system of inspection had been in place, and accordingly allowed
Woolworth's appeal and set aside the judgment of the trial
The High Court
Mrs Strong appealed to the High Court which held by majority
that the Court of Appeal had erred in concluding that the chip had
most likely fallen during lunchtime and that it was therefore
reasonable to assume that it had been there for only a short period
Section 5(E) of the Civil Liability Act 2002 (NSW)
(which mirrors s5(D) of the WA Civil Liability Act 2002)
provides that 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. The
question before the High Court was in essence, whether a failure to
have in place a system pursuant to which the floor was inspected no
more than 15 minutes before the fall, caused the appellant's
In the opinion of the majority, the evidence did not permit a
finding of when the chip was deposited in the sidewalk area, but
only that it was in the interval between 8:00am and 12:30pm. The
Court was therefore able to find that the failure of Woolworths to
adopt a reasonable system of cleaning was the effective cause of
the harm resulting in Mrs Strong's fall.
The importance of a regular system for the cleaning and
inspection of shopping centres is obviously highlighted by this
decision and the Court has stated with some specificity what this
entails, i.e. "reasonable care require(s) the inspection
and removal of slipping hazards at intervals not greater than 20
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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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