Court of Appeal squashes grape finding in favour of Woolworths

Woolworths has successfully appealed a lower court’s finding that its employees were negligent in leaving a single grape on the floor after the store had opened.

At first instance

On 25 November 2012 Ms McQuillan (plaintiff) sustained injuries when she slipped and fell on a grape at Woolworths’ Leichardt store. The plaintiff subsequently commenced proceedings in the District Court of New South Wales against Woolworths, in its capacity as occupier and operator of the supermarket, seeking damages for her injuries.

His Honour Judge Maiden found that the presence of the grape on the floor arose from the activities of Woolworths’ staff in the produce area and that the staff simply ‘overlooked’ the grape ‘in the busy activity’ that occurred prior to the store opening.

The plaintiff succeeded against Woolworths and was awarded the sum of $151,000 plus costs and interest.

Court of Appeal

Woolworths’ appeal to the Court of Appeal was allowed and the plaintiff was ordered to pay Woolworths’ costs.

Woolworths challenged the primary judge’s findings of negligence on the basis of two errors in his Honour’s factual findings; firstly, that the grape was on the floor before the store opened; and secondly that no one from Woolworths was on duty in the produce section of the store between 10 am (store opening) and 10:06 am (when the plaintiff fell).

The majority held that his Honour’s implicit finding of negligence by Woolworths’ staff in the produce area before 10 am could not stand. Furthermore, even if the grape was on the floor before 10 am, the Court of Appeal were not persuaded that there was a causal act of negligence by Woolworths’ staff in failing to observe a single grape on the floor when passing by that area to attend to other duties.

On the other hand, assuming that the grape came onto the floor after 10 am, Justice Gleeson (with whom Justices Basten and Payne agreed) stated that ‘keeping a proper lookout in accordance with instructions to maintain vigilance for hazards on the floor, such as grapes, does not mean a perfect lookout’. Ultimately, the Court of Appeal held that the Woolworths’ staff’s failure to observe the grape on the floor did not constitute a causal act of negligence.

Commentary

This decision may reflect a fortuitous swing of the pendulum regarding the duty of occupiers to keep a proper lookout for hazards. The Court of Appeal’s decision demonstrates that an element of slight error or oversight will not necessarily vitiate reasonable care.


Woolworths v McQuillan [2017] NSWCA 202


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