Article by Heidi Nolan
Coles Supermarkets Australia Pty Limited v Tormey  NSWCA
Giles JA, Ipp JA and McColl JA
- An occupier of premises, or an entity with the capacity to control the conduct of persons on premises, must have sufficient knowledge of a risk of injury posed by third parties to its visitors in order for a duty to arise to take reasonable care to avoid this risk.
- Knowledge is also the starting point on the issue of breach of duty. If the occupier has this knowledge, it must also be proved that it failed to adequately respond to the risk in order to breach any duty of care which it owes to its visitors.
On 8 February 2005, the plaintiff was in a Coles supermarket doing her grocery shopping when she was struck in the back by a shopping trolley being pushed by two men, causing her significant injuries.
The trolley was in the control of two male visitors to the store. They were playing with the trolley, with one pushing the trolley from the front and the other holding on at the back and lifting his legs off the ground while the trolley travelled at speed down the aisles of the store.
There were two sightings by the plaintiff of these men playing with the shopping trolley in the 15-20 minutes before the accident, one of which occurred in front of the fruit/delicatessen area, with the second incident witnessed a few aisles along. The plaintiff was then struck by this trolley in the second-last aisle of the store.
District Court Decision
Nield DCJ found that Coles Supermarkets Australia Pty Limited (Coles) had negligently failed to ask the men to cease their behaviour and that this omission to do so had resulted in the plaintiff's injuries. His Honour awarded the plaintiff $298,064.58 plus costs as a result of the injuries sustained to her lumbar spine.
The finding of negligence was based on his Honour's findings that the two men were within the sight of several Coles' employees in front of the delicatessen area and that their attention should have been brought to these men and their actions. His Honour found that the men's loud voices throughout the store, combined with their behaviour with the trolley in front of Coles' employees, were such that the Coles' employees must have known of their behaviour and must have known that it was a threat to the safety of others in the store.
Nield DCJ found that Coles owed the plaintiff a duty to take reasonable steps to prevent injury to people in its store from the misbehaviour of other people. The failure of Coles to ask the two men to cease their unruly behaviour long before the incident involving the plaintiff occurred amounted to a breach of the duty of care that it owed to the people, including the plaintiff, in its store.
Ipp JA delivered the unanimous judgment of the Court.
On appeal, the defendant submitted that its employees did not know how these two men were behaving and therefore did not have a duty to stop this behaviour from occurring within the store.
Ipp J A noted that Nield DCJ had implicitly found that the need to intervene came from the actual knowledge of Coles' employees of the activities of the two men and therefore on the basis of the finding of actual knowledge, it was foreseeable that unless the activities of the two men were checked, injury to customers in the store might result.
Ipp JA found that it was this finding of actual knowledge that underlay both the duty of care and the breach that was found.
Ipp JA cited his decision in South Tweed Heads Rugby League Football Club Limited v Cole  NSWCA 205 in which he said:
"If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor (2002) NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises."
His Honour did not find it necessary to consider whether the duty in this case arose from Coles' capacity to control the conduct of persons on its premises or from its status as occupier because both of these factors were present.
His Honour dealt with the factors that caused Nield DCJ to conclude that Coles' employees were aware of the men's activities. In particular, that they must have heard the noise the men were making and that they must have seen the men misbehaving with the trolley.
In respect of the noise argument, Ipp JA found that the plaintiff and her daughter's evidence made it clear that although the men were noisy, they were joking around and did not come across as aggressive in any way. Accordingly, Ipp JA found that the noisiness on its own did not suggest that the men might cause harm to others in the store and therefore did not need to be taken as such by the employees.
The plaintiff's account of the prior trolley incidents was accepted. Her evidence of the first incident which she witnessed as she entered the store, was that when the men pushed the trolley, it "went for a little bit and then stopped". It was accepted that Coles employees would have witnessed this incident.
The plaintiff's evidence as to the second incident was that the trolley went "at speed" perhaps three quarters of the way down the aisle. There was no evidence given to indicate that any Coles employee witnessed or was in a position to witness this second incident occurring.
Importantly, the plaintiff also gave evidence that when the men approached the end of the aisle, they acted appropriately and as though nothing had happened, "making out as though they were ordinary, normal customers".
When the plaintiff was struck, she was in the second-last aisle of the store, three quarters of the way down the aisle. She did not see the trolley coming towards her.
It was submitted by the plaintiff that knowledge of the first incident alone, coupled with the noise gave rise to a reasonable foreseeability of harm. Ipp JA did not accept this submission. Based on the plaintiff's description, the trolley in the first incident went "for a little bit and then stopped", suggesting that during the first incident the trolley was not pulled at any speed likely to cause harm to others. His Honour pointed out that the plaintiff did not indicate that the men were handling the trolley in a way that might pose a danger to others.
His Honour found that the second incident was significantly more serious and that any person seeing such behaviour would have perceived that if it continued, other persons would be at risk of harm. The matter therefore came down to whether or not any Coles employee had seen this behaviour. In reducing the issue down to this point, Ipp JA acknowledged that had the employees of the store confronted the men before the accident, they would probably have ceased playing with the trolley and therefore avoided the accident entirely.
Ipp JA found on the evidence and inferences available from the evidence that the first incident was witnessed by Coles' employees but the second, more relevant incident, was not.
His Honour accordingly concluded that Coles' employees did not know of the second incident, which was the more apparently dangerous incident of the two.
The defendant's knowledge was found to be insufficient to give rise to a duty on its part to take reasonable care to avoid a risk of injury arising from those activities.
Alternatively, as the plaintiff had not proved that Coles witnessed or knew about the second incident, she did not prove that it failed to respond adequately to the risk of harm and therefore could not prove that it had breached any duty of care imposed on it.
Coles was therefore successful in its appeal of Nield DCJ's decision and the judgment in favour of the plaintiff was set aside and judgment entered for Coles.
While this decision demonstrates that occupiers do not have a duty to control third party's actions on their premises where they are unaware of them, where a sufficient knowledge of activities which may result in harm exists, a duty of care will arise.
This decision does not distinguish the need for constructive or actual knowledge of third party's actions on an occupier's premises. It is possible to infer from this judgment that actual knowledge is required, however we believe that this question remains unanswered.
When a duty of care is found to exist, a plaintiff must demonstrate that an occupier failed to respond adequately to the risk in order to prove any breach of this duty.
In the case of Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61, the High Court found that an occupier owes no duty to a visitor who sustains injuries as a result of criminal activities of third parties, except in limited circumstances. The current case is another example of the Court chipping away at the edges of the Modbury Triangle decision.
Occupiers need to have procedures in place to ensure that they are equipped to monitor, and if necessary, remove or otherwise deal with persons who may be engaging in unruly or criminal behaviour which may harm other people on the premises.
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.