In this Alert, Senior Associate Brooke Jacobs and Solicitor
Elizabeth Harvey examine the recent decision of Woolworths Ltd
v Ryder  NSWCA 223, in which the New South Wales Court
of Appeal found that a supermarket in a shopping centre did not owe
a duty of care to users of the common area adjacent to their
premises, in circumstances where the relevant hazard had been
created by a product purchased from and opened in the
The plaintiff sustained injury when she slipped on a patch of
soapy liquid and fell while in the common area of a shopping
centre, just outside a Woolworths supermarket.
The soapy liquid had been spilt by a little girl blowing bubbles
with a wand. Her parents had only moments before purchased the
bottle of bubbles. It was alleged that a Woolworths cash register
operator had opened the bottle of bubble mixture for the little
The trial judge found in favour of the plaintiff on the basis
a factually contentious "admission" by a Woolworths
employee at the time of the incident that Woolworths' employee
had opened the bubbles and created the risk; and
a finding that Woolworths owed a duty to users of the common
area adjacent, which extended to refusing to open the bottle of
bubbles and a duty to warn.
Woolworths appealed this decision. One of the key issues on
appeal was whether Woolworths owed a duty of care in negligence to
users of the common area.
The Court of Appeal held that Woolworths did not owe the
plaintiff a duty of care.
The Court found that Woolworths' duty of care did not extend
to exercising reasonable care to prevent products it sells being
used by customers in a manner that creates hazards outside of its
premises. The Court noted that such a duty would pose an
intolerable burden of potential liability on owners and occupiers
of retail premises to not only control the actions of third
parties, but to exercise control over premises outside of its
sphere of responsibility.
The duty owed by retailers does not extend to users of the
common area adjacent to their premises.
Retailers owe no duty to prevent customers from using products
purchased from them in a way that creates a hazard.
The case reiterates that reasonable foresight of harm is not
sufficient to impose a duty of care. The Court of Appeal found that
the trial judge erred by conflating the reasonable foreseeability
of harm with the actual content of the duty of care owed by
This case specifically considered a tortuous and not
contractual duty of care. It is worth noting that the finding may
well have been different if a contractual duty was owed.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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