Duty of care to visitors by retail premises examined by courts

In December 2022, the ACT Court of Appeal handed down judgment in the decision of Buljat v Coles Supermarkets Australia Pty Ltd [i] in which a visitor to a Coles supermarket brought a claim against it after slipping on a grape at a supermarket.

Whilst no commercial property manager was involved in this matter, the decision provides some useful insights into the principles of law in this area and the duties owed to visitors to retail premises.

BACKGROUND

On 23 September 2017, Zlata Buljat (the plaintiff) slipped on a grape whilst shopping at a Coles supermarket in Woden, ACT. The plaintiff’s fall occurred six hours and 32 minutes after the supermarket opened. She alleged that she was walking through the meat section of the supermarket when her right leg slipped and fell, landing on her right shin. After the plaintiff had fallen, she observed a loose grape on the floor nearby. She sustained injuries to her right shin and knee.

The plaintiff brought an action in negligence against Coles Supermarkets Australia Pty Ltd (Coles) in negligence under sections 42-46 of the ACT’s Civil Law (Wrongs) Act 2002, which are similar to sections 9-12 of Queensland’s Civil Liability Act 2003. The plaintiff alleged that Coles had breached its duty of care to her by allowing loose grapes to escape onto the floor and by not implementing an adequate system of cleaning.

It was not disputed that the plaintiff had slipped on a grape or that Coles had owed a duty of care to her. The dispute concerned whether Coles had breached its duty to take reasonable care.

The decision was an appeal from an earlier Supreme Court decision [ii] in which the primary judge held in favour of Coles, finding that it had not breached its duty of care to the plaintiff. The plaintiff appealed against both the liability finding and the damages assessment.

COLES’ SYSTEM OF CLEANING

The supermarket had a ‘clean as you go’ system in place during opening hours and dedicated cleaners outside opening hours. The ‘clean as you go’ system essentially required staff to identify and clean up any hazards they came across during the course of their normal duties.

Two employees from the Coles store were called to give evidence. They provided evidence that they had been shown a video on dealing with spills on the supermarket floor and that they were instructed to keep a lookout for spillages and anything that may be a hazard. They were specifically instructed to be on the lookout for grapes that may have fallen on the floor.

DECISION AT FIRST INSTANCE

In the earlier Supreme Court decision, Coles conceded that the risk of harm to a visitor to the supermarket was foreseeable and not insignificant.

The judge rejected the plaintiff’s argument that closed packaging should have been used to prevent grapes from falling on the floor or that Coles should have prevented visitors from eating grapes in the store.

The adequacy of Coles’ ‘clean as you go’ system was assessed by comparing it to analogous cases involving similar systems. Her Honour concluded that the case law does not establish that this type of system is insufficient solely because it does not have a periodic and documented system of inspection. She noted that “a proper lookout does not mean a perfect lookout” and that the evidence before the Court did not establish that the Coles staff had failed to keep a proper lookout.

It was ultimately held that the plaintiff had failed to show that Coles had breached its duty of care. The judge held that if the plaintiff been successful, she would have been entitled to damages of $17,000.

THE COURT OF APPEAL’S DECISION

The Court of Appeal overturned the decision of the Supreme Court. In determining that a breach was established, the Court held that Coles’ ‘clean as you go’ system did not sufficiently discharge its duty of care. The inadequacies of this system were highlighted by the Court; particularly the absence of a specific staff member to keep lookout, or an appropriate number of staff in the relevant area to provide an appropriate level of inspection.

Also, the Court said that Coles’ system did not provide a set time at which an inspection was to be conducted. It held that a breach was more easily established due to Coles’ deliberate choice not to lead evidence in support of the reasonableness of its system in relation to issues such as cost and effectiveness.

The Court held that “a reasonable person in the position of Coles would have taken additional steps to ensure that particular attention would be paid to the issue of potential slipping hazards on the floor in the area in question. That would not necessarily require that there be separate staff whose job it was to make such an inspection, but that at least there be some system which required staff to specifically direct their attention to that issue not less frequently than once every hour.

”This appears to set a different standard to that applied in the earlier High Court decision of Strong v Woolworths [iii]. Strong suggested that supermarkets should be cleaned and monitored for hazards every 20 minutes, whereas the Court of Appeal in this decision stated that had hourly inspections been implemented, it is likely that the incident would not have occurred.

Causation was established on the basis that there was a lack of evidence as to the effectiveness of the inspection system which made it impossible to determine at what point in the day the grape was dropped. Given the fact that the supermarket had been open for six hours and 32 minutes at the time of the incident and in the absence of any evidence to the contrary, the Court held that it was more probable that the grape was dropped in the earlier five hours and 32 minutes rather than the one hour immediately before the incident.

The Court therefore concluded that had a reasonable system requiring hourly or at least more frequent inspections been implemented, it is probable that this system would have prevented the harm to the plaintiff.

As breach and causation were established, the appeal was allowed and damages were assessed at $27,309.00.

CONCLUSION

This decision is a reminder to retail tenants and, by analogy, property managers that reasonable care must be taken to ensure the safety of visitors to retail premises. A Court will examine whether the tenant has taken adequate steps to discharge their duty to monitor their premises for hazards.

A well-documented system of regular cleaning and the frequent monitoring of the premises for hazards will significantly enhance the prospects of defending these types of claims. It is also important that all staff are inducted into these systems and are aware of their obligations in this regard.

References

[i] [2022] ACTCA 71

[ii] Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47

[iii] [2012] HCA 5

Read another court case about a slipping shopper who sued a shopping centre cleaning regime here.

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