In a recent decision, the New South Wales Court of Appeal found
that a supermarket and flower stall operator were not liable for a
customer's slip and fall injury.
Special Counsel Brooke Jacobs and Solicitor Elizabeth Harvey
discuss the decision in Coles Supermarkets Australia Pty Ltd v
Bright  NSWCA 17.
The plaintiff injured her left ankle when she slipped and fell
inside a Coles supermarket. The injury occurred in an area of the
supermarket next to a flower stall stocked by the Lynch Group.
The plaintiff alleged that her fall was caused by a puddle of
water left on the floor by an employee of the Lynch Group who had
arranged the flower display approximately 10 minutes before the
She successfully brought claims for negligence against both
Coles and the Lynch Group in the NSW District Court.
Both defendants appealed to the Court of Appeal.
The Court of Appeal overturned the trial judge's decision,
holding that the trial judge's finding that there was water on
the floor before the plaintiff slipped could not be sustained on
the evidence presented.
While it was not in dispute that there was water on the ground
immediately after the incident, this could be explained by the CCTV
footage showing the plaintiff overturning a bucket of flowers as
The only evidence in support of the floor being wet before the
incident was the plaintiff's belief that she saw skid marks on
the ground consistent with her shoe having moved forward through
water on the floor. The plaintiff conceded that she did not see any
water on the floor until after the fall.
The Court of Appeal reviewed the CCTV footage of events before
the incident. They could not see an event which would have caused a
spillage on the floor. They observed that there had been heavy
traffic through the area, with no indication that any person
noticed or reacted to the presence of water on the floor. The Court
of Appeal considered the trial judge had erred in finding that
there was water on the floor before the plaintiff fell which led to
The Court of Appeal observed that, even if there had been water
present on the floor before the incident, this would not
automatically result in a finding of breach of duty by Coles or the
Lynch Group. The obligation is to take reasonable
precautions to avoid injury and does not involve a
guarantee that no risks will arise.
The Court of Appeal stated that the mere fact of a small
spillage did not necessarily entail a finding of a failure to take
reasonable care. The trial judge had failed to consider whether
Coles or the Lynch Group had discharged their duty.
Based on the factual finding that there was no water on the
floor, the Court of Appeal did not need to consider whether Coles
and the Lynch Group had taken reasonable care. However, the leading
judgment observed that the evidence demonstrated that Coles
"had a perfectly adequate system of inspection" and a
"conscientious manager", and that the Lynch Group
employee was also conscientious in identifying and cleaning up such
spillage if it occurred.
The duty of care owed by retailers is not to be elevated to a
guarantee to provide safe premises; it is a duty to take
In order to succeed on causation, it is not sufficient for a
plaintiff to merely prove that they fell; instead they must
demonstrate what caused them to fall on the balance of
Further, the incident must result from a causative
breach of duty by the defendant(s) or a by failure to exercise
Retailers can avoid adverse findings by implementing and
maintaining reasonable systems of inspection (inspections at 20
minute intervals are usually held to suffice).
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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