Injured whilst shopping- small facts can make a big difference
When Ms. Bright fell over in a Coles’ supermarket, she blamed her fall on a puddle of water which she said caused her to slip and fall. She was successful in the District Court but unsuccessful in the NSW Court of Appeal where the judgment in her favour was overturned.
On 1 April 2010 Ms. Bright was shopping at a Coles supermarket located at Banora Point in NSW. While walking past a flower display at the end of one of the supermarket’s aisles she slipped and fell. As a result of the fall Ms. Bright suffered an injury to her left ankle.
At the time of the fall the flower display had been recently restocked by the employee of a contractor to the supermarket, the Lynch Group Pty Ltd (Lynch Group).
Comprehensive CCTV footage of the area in question showed a contractor from the Lynch Group setting up the display, then Ms. Bright’s fall during which she knocked over a bucket of water and lastly people coming immediately to her aid after the fall.
The CCTV footage also showed multiple customers walking across the top of the aisle in front of the flower display in a 10 minute period after the flowers were arranged and before Ms. Bright’s fall.
Ms. Bright and her mother both gave evidence that they had not seen any water on the ground before her fall. Ms. Bright also gave evidence that after she had sat up after her fall she noticed a second puddle of water with a ‘slide mark’ made by her shoe. Her mother’s evidence supported this version of events.
The CCTV footage did not show a single person noticing water on the floor prior to Ms. Bright’s fall nor did is show anyone reacting when they put their foot in water.
Successful in the District Court…
Ms. Bright was initially successful in the NSW District Court. The Court considered that the case against both Coles and the Lynch Group turned on the single question of whether or not there was a puddle of water in front of the flower display.
Without providing any explanation as to how the conclusion was reached Chief Judge Blanch (who presided over the hearing) found that he was satisfied on the evidence before him that there was a patch of water which caused Ms. Bright to fall.
But unsuccessful on appeal…
Not surprisingly both Coles and the Lynch Group appealed the District Court decision. This proved to be a good move on their part as the Court of Appeal overturned the trial judge’s decision.
The Court of Appeal found that while the trial judge was satisfied that there was water on the floor he had not explained how he reached that conclusion. While the ‘slip mark’ could be accepted as evidence of water being on the ground prior to Ms. Bright’s fall, it was the only evidence of water and there was significant other evidence available that was inconsistent with the fall being caused by water. The slip mark could have been caused by a trolley in the vicinity of the floor.
CCTV footage showed multiple customers walking in front of the flower display in the ten minute period prior to Ms. Bright’s fall. None of those customers appeared to react to putting their foot in water or even to notice any water.
The Court of Appeal held that a finding of fact (such as there being water on the floor) needed to be assessed on probabilities and not guesswork or speculation where the available evidence was silent. In addition, it held that it was incumbent on Ms. Bright to establish that there was water on the floor and her evidence did not go beyond establishing anything more than there being the possibility that there was water on the floor.
The Court of Appeal was not satisfied on the balance of probabilities that there was water on the floor before Ms. Bright slipped. Accordingly, it held that her claim should have been rejected by the trial judge.
The Court of Appeal also found that even if a water spillage had been proven the mere fact that there was water on the ground did not automatically guarantee that there has been a breach of duty of care.
The obligation on both Coles and the Lynch Group was to take reasonable precautions to avoid injury to Ms. Bright but this did not guarantee that no risks would arise. The trial judge had found that both the store manager and the Lynch Group employee who set up the flower stand had acted reasonably and carefully, that there was evidence that the risk of spillage was well understood and that both Coles and the Lynch Group were conscientious in identifying and clearing up such spillages if they occurred. In these circumstances Ms. Bright’s claim must fail.
Is this a win for supermarkets?
While this decision should not be considered to be a blanket ‘win’ for supermarkets there are a number of important things to take away from this judgment, which are:
- Any decision on liability (who is responsible for an accident) needs to be assessed on the balance of probabilities and not simply guesswork or speculation in the absence of evidence;
- A Plaintiff bears the onus for establishing, on the balance of probabilities, how the accident occurred; and
- The mere presence of water on the floor will not automatically mean that a finding of failure to take reasonable care will be made. A trial judge should consider whether this duty has been discharged and should not just assume that a breach of duty of care has occurred.
The best advice…
If you have been injured or know someone who has, it is sensible to go to a lawyer as soon as you can whilst the details are fresh in your mind. See someone who is experienced in personal injury law, so you can gain a good understanding of the merits of your matter.
Small facts can make a big difference! It is also worth remembering that most cases settle without the need to go to court on the basis that, for both parties a compromise settlement is better than a bad outcome.