In brief - Court of Appeal overturns award of damages
On 15 August 2013 the NSW Court of Appeal overturned the
District Court's decision which found that Coles had breached
its duty of care to a customer who sustained injuries when she
slipped on a piece of a cardboard on the floor of the supermarket
and was awarded damages in the sum of $119,024.
Did the plaintiff slip on cardboard?
At trial, Kearn DCJ found that the plaintiff "trod on a
piece of cardboard and slipped and was injured".
Whether small pieces of cardboard are hazardous objects when on
Court of Appeal rejects inference that plaintiff's foot
came into contact with cardboard
There was no direct evidence that the plaintiff's foot came
into contact with the cardboard or that the cardboard was at any
time between the sole of her footwear (thongs) and the surface of
the floor. The plaintiff acknowledged that she did not see any
cardboard on the floor prior to slipping and it was only when she
stood up that she saw two small pieces of cardboard on the
The trial judge drew an inference that the plaintiff's foot
had come into contact with the cardboard.
On appeal, the court unanimously held that the fact that two
small pieces of cardboard were seen by the plaintiff in the
vicinity following her fall did not make it more likely than not
that she placed her foot on the cardboard. Accordingly, there was
an insufficient basis for the inference drawn by the trial
Plaintiff fails to establish sufficient causal connection
between fall and alleged breach of duty of care
The plaintiff relied on an engineer's report to support the
contention that the cardboard represented a slip hazard. The
engineer did not test the degree of slip resistance of the sole of
the thong worn by a person of the plaintiff's weight and the
relevant part of the supermarket floor when a small piece of
cardboard was between the thong's sole and the surface.
Furthermore, the expert did not explain his conclusion that the
cardboard reduced the amount of grip between the plaintiff's
thongs and the vinyl surface.
The court said that the expert report was of no assistance in
deciding whether the risk of injury from slipping on cardboard was
"not insignificant" as required by
section 5B(1)(b) of the Civil Liability Act 2002 (NSW). The report, expressed
without crucial reasoning and testing, was no more than a mere
assertion that small pieces of cardboard are hazardous objects when
on vinyl floors.
In summary, the plaintiff failed to establish a sufficient
causal connection between her fall and the alleged breach of duty
Court of Appeal drastically reduces damages payable to
Even if liability had been established, the appeal would have
been allowed to the extent of reducing the award for damages. In
respect to non-economic loss, the medical evidence indicated that
the plaintiff sustained minor soft tissue injuries, however
experienced continuing difficulties because of her deconditioned
There was evidence that the plaintiff's deconditioned state
was due to inactivity following the fall, which could be resolved
through physical exercise. The primary judge inferred that the
plaintiff was deconditioned at the time of the incident and, as a
result, more prone to harmful consequences arising from the fall.
He assessed her injuries to be 20% of a most extreme case.
On appeal, the court found that there was no medical evidence in
support of this finding. There was no disfigurement, no loss of
life expectancy, very minor pain, suffering or loss of amenity and
every prospect of an early and complete recovery.
In the event the trial judge's finding had not been
overturned, the court considered the plaintiff would have been, at
most, 10% of an extreme case. In addition, the court eliminated the
award for domestic assistance and reduced the award for economic
loss because the findings were not supported by evidence.
Courts will scrutinise expert reports carefully to assess
allegations of breach of duty
This decision provides useful commentary on the drawing of
inferences when direct proof is not available. It also sends a
clear message to plaintiffs' solicitors that when an expert
engineer's report is obtained, the court will look at same with
a critical eye to ensure there is probative value and appropriate
reasoning relating to allegations of breach of duty and
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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