Australia: Negligence: When the chips are down

Strong v Woolworths Limited t/as Big W & Anor [2012] HCA 5

In this case the High Court clarified the test necessary to establish factual causation as contemplated by s5D of the Civil Liability Act 2002 (NSW). It has general application to proof of causation in all jurisdictions.

Facts

On 24 September 2004 at approximately 12.30 pm Strong, a right leg amputee who was dependant on crutches, was looking at plants in a sidewalk sales area (the "Area") outside Big W (a shop operated by Woolworths) at the Centro Taree Shopping Centre when her crutch slipped on grease deposited by a chip which had been spilled on the floor causing her to fall and suffer injury.

The Area was in the vicinity of a food court and thus it was foreseeable that people consuming food would move through the area. It was conceded that spillages of food such as hot chips would render the floor dangerously slippery.

It was uncontroversial that, at the time of the accident, a reasonable system of cleaning would have required inspection of the floor area at no more than 15 - 20 minute intervals and a defined protocol for removal of foreign material. Woolworths had an ad hoc system of inspection (just that its employees would be vigilant to identify spillages if they happened to move through the area) and no regular system of cleaning.

No direct evidence was available to establish precisely (or 'roughly') how long prior to the accident the chip had been dropped, however, chips had been available for sale since about 8.00 am on the day of the accident.

Trial

Strong commenced proceedings against Woolworths, the lessee of the Area, in the District Court of NSW claiming damages. She alleged that Woolworths was in breach of the duty of care it owed as an occupier of the Area. The Trial Judge held that Woolworths was in breach by failing to have in place a reasonable system of inspection and cleaning. This aspect was not challenged on appeal.

In order to succeed it was necessary for Strong to establish that the breach of duty had caused the accident as contemplated by s5D of the Civil Liability Act 2002 (NSW) which relevantly provides as follows:

The Trial Judge did not make a clear finding as to causation in finding Woolworths liable. Woolworths appealed.

Court of Appeal

The NSW Court of Appeal overturned the decision holding that the Trial Judge had erred in finding the breach of duty caused the accident. The Court held that Strong had not presented evidence sufficient to permit an inference of "factual causation" and made factual findings very favourable to Woolworths. In order to discharge that onus the Court held that Strong would have been required to tender evidence to permit a finding that the chip was on the floor for longer than 15-20 minutes such that a reasonable system of cleaning would have detected and removed it and the accident would then not have occurred.

High Court

The High Court granted Strong Special Leave to Appeal.

The Court unanimously rejected Strong's criticism of the construction of s5D by the Court of Appeal. The High Court held that "factual Causation" in s5D(1)(a) was a statutory statement of the familiar 'but for' test. That test provides that a breach of duty of care will be found to have caused an accident if the accident would not have occurred but for the negligence. Otherwise the "scope of liability" requirement in s5D(1)(b) incorporated the requirements of reasonableness, and s5D(2) makes allowance for circumstances where the factual causation could not be established on the 'but for' basis. That section allows a finding of causation where the negligence materially contributes to the appellant's harm, but is not the "sole cause".

The question for consideration however, was whether the Court of Appeal had erred in finding that Strong had not satisfied the onus of proof in tendering evidence to support an inference on the balance of probabilities of factual causation. The High Court by 4-1 majority, found that Strong had discharged the onus, despite the absence of direct evidence as to the time the chip had been present prior to the fall (such as observations as to the condition of the chip). The majority noted that the potential for the chip to have been dropped at any time between 8.00 am and 12.30 pm and held it legitimate to infer that it had been present for more than 15 minutes prior to the accident period because, simply, on balance it was more probable in the circumstances of this case that the chip had been dropped in the approximately 3.5 hours from the start of trading than the 15 minutes preceding the accident.

In coming to that conclusion the majority was critical of the Court of Appeal's conclusion that there was no evidence to support the inference based on its factual findings as those factual findings made (in favour of Woolworths) were not open on the evidence.

Conclusion

The decision is of significant assistance to plaintiffs in discharging the often difficult onus to establish causation. This aspect will remain 'fact rich' and, practically speaking, absent an occupier tendering compelling evidence to establish that it was at least equally likely that the foreign substance was dropped within the time a reasonable system of cleaning would have removed it, the plaintiff will establish causation on probability grounds. In some cases evidence may be available to that the foreign substance was on sale for a limited period prior to the accident thus restricting the potential time it could have been present on a floor.

However, that evidence is likely to usually be as to the system of cleaning so the retention of direct evidence of the cleaning system on the day of the accident (such as CCTV footage or electronic 'wand' records) is essential to the defence of these types of cases.

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.