High Court of Australia Assignment PDF

Strong v Woolworths Ltd [2012]
Case introduction: The High Court of Australia give its verdict in this case, permitting an
appeal in a cae involving slip and fall. While doing so, the High Court visited the law related
with causation. This decision also reveals the difficulties that are present in slip and fall cases.
Potentially this decision has important results for public liability, insurance and personal injury
law.
The facts of the case: The facts of this case are that the appellant while looking at pot plants
present on the sidewalk area outside the entrance to Big W at Centro Taree Shopping Center (the
Center) had suffered a fall after slipping. This area was managed by the first respondent,
Woolworths Ltd. that was operating in the area as Big W. The appellant is a disabled person and
at the relevant time, the appellant was walking with the help of crutches. The reason was that the
right leg of the appellant was amputated from the knee. At nearly 12:30 PM, the complainant
slipped and fell after the crutch of the appellant came in contact with oily chip present on the
ground. The daughter of the appellant and a friend Mrs. Hurst worked with the apparent at the
time. After the apparent had fallen on the floor, an oil mark was noticed on the floor with the
crutch had slipped. Later on, during the evidence it was stated as big as the hand by the
appellant’s daughter. The daughter and Mrs. Hurst, had seen the chip.
The owner of the center was the second respondent, CPT Manager Ltd. CPT had entered into an
agreement with the cleaning service business. According to the agreement, the floors of the

center should have been free from rubbish and spillages. It was also mentioned in the contract
that the utmost time between cleaning inspection of the common areas of the center was 15
minutes. Ms. Walker had been employed as a cleaner by the cleaning services business. She
stated in court that the sidewalk area has been examined and cleaned after 20 minutes regularly.
Before the fall of the complainant, the sidewalk was last examined at 8 am in the morning.
In this case, proceedings were initiated by the appellant in the District Court of NSW. The
respondents were Woolworths and CPT. The negligence of Woolworths was particularly pointed
out by the appellant, including the failure of the company to put in place suitable cleaning
system, which can notice spillages etc. in the sidewalk sales area. In this regard, the company
acknowledged that there was no apparent system put in place by the company on the day of the
event related with intermittent examination and cleaning of the sales region. In this regard, the
primary judge was of the opinion that being the occupiers of the sidewalk, Woolworths had a
duty of care towards the persons coming to this area. The spirit of the reasoning adopted by the
primary judge was that if other people can see (the grease mark) other than the complainant after
the incident, it raises a grave issue as to why the mark was not noticed by the employees of
Woolworths under these circumstances. Therefore the march should have been removed either
by Woolworths or by alerting the cleaner to remove the mark as it was entirely open to the
company to do so. If it would have been done, the appellant would not have received the injury.
Under these circumstances, Woolworths was considered as being guilty of negligence. In this
case, the judgment was delivered against Woolworths to the amount of $580,299. However, the
claim of the complainant against CPT was dismissed.

The issues raised by both plaintiff and defendant: Under these circumstances, an appeal was
made by Woolworths in the NSW Court of Appeal. It was claimed by the company that the
primary judge had made an error regarding a point of law. The appellant would not succeed in
establishing that the negligence of the company was the causation of the injuries suffered by her.
The Court of Appeal arrived at the conclusion that the primary judge had failed to discuss the
breach of duty or causation, and a factual finding regarding causation should have been made. It
was held by the Court of Appeal that reasonable care if not require the company to make sure
that a person should be continuously present on the spot, looking for slippery substances in that
area. Instead, all that was required was regular inspection and cleaning (Australian Safeway
Stores Pty Limited v Zaluzna, 1987). This resulted in the possibility that even after regular
inspection and cleaning, the chip could be present between the last examination and the
complainant slipping on it. The court stated that it was probable that the chip could have been
present during the lunch time, which was just before the fall of the appellant. As a result, the
breach of duty of care by Woolworths (the failure to clean every 20 minutes), could not be
considered as being probable that if the duty would have been carried out, harm would not be
suffered by the appellant (Dulhunty v J B Young Ltd., 1976).
Under the circumstances, it was stated by the Court of Appeal that no evidence was presented on
the basis of which it can be stated that it was more probable that the chip remained present on the
floor for long enough to be noticed and taken away by a realistic cleaning system. In this regard,
the court made a reference to section 5D, Civil Liability Act, 2002 (NSW) and stated that it
could not be established by the appellant in the present case that on a balance of probabilities the
negligence of the company had caused the appellant to fall and suffered an injury (Brady v

Girvan Bros Pty Ltd. 1986). Consequently, the Court of Appeal allowed the appeal and set aside
the decision delivered by the primary judge.
The arguments presented by both parties: Consequently, an appeal by special leave was made
by the appellant to the High Court. The main question in the appeal was if the Court of Appeal
had acceptably decided the question of causation. In this regard, several submissions were made
by the appellant regarding the construction of section 5D, Civil Liability Act by the Court of
Appeal, particularly the fact that the court had taken on an excessively constrained interpretation'
regarding the scope of s5D. On the other hand, it was submitted by Woolworths that it was
essential for the petitioner to provide evidence, which allowed an inference to be made regarding
the time when the chip fell on the floor.
The judgment of the court: In this case it was found by the majority that the appeal made by
the plaintiff was considered as comprising the familiar difficulty that is present in case of the
cases related with slip and fall to establish a casual link between the lack of sufficient cleaning
system and injuries suffered by the plaintiff, when it is not known when the slippery material fell
on the floor (Rose v Abbey Orchard, 1987). It was stated by the High Court that the statutory test
for causation has been correctly applied by the Court of Appeal. However, the High Court did
not agree with the findings of the Court of Appeal that it was not open to evidence to arrive at the
conclusion that the negligence of Woolworths was a necessity condition regarding the harm
suffered by the appellant. Instead, it was considered by the High Court that the proof regarding a
casual link between an omission and an incident needs the consideration of likely host of
incidents if the omission did not take place (Drakos v Woolworths (SA) Ltd., 1991).

In this regard, the 'speculation' of the Court of Appeal was rejected by the High Court that the
chip could have been deposited at lunchtime. Instead they High Court stated that the fallen chip
was a danger and it had nearly equal chances of taking place throughout the day.
Under these circumstances, the appeal was allowed by the High Court. It was ordered that the
ruling of Court of Appeal should be reversed and in its place, the appeal made to the court of
appeal was dismissed with costs.
In this case, the dissenting minority judgment was delivered by Hayden J.. The focus of the
dissent of Hayden j was on the obligation that it is for the appellant to bear the evidentiary load
of establishing causation, which in the present case, she was unsuccessful in discharging.
Because there was no direct evidence present in either way, if the chip was deposited before or
after 12:15 PM, it was held by Hayden J. that the appeal needs to be dismissed with costs. It was
argued that Woolworths need to succeed in the case on the ground of placing the legal burden of
proof, which was on the appellant.
Critical analysis: It appears that this decision follows the current tendency of 'burden shifting'
that can be seen in the US. For example, in Kelly v Stop & Shop, it was held by the Connecticut
Supreme Court that some retail endeavors, which were the defendants in the case, were required
to bear evidentiary burden of rebutting a claim made by the plaintiff that there was negligence on
the part of the defendant. This verdict was in tune with the situation that has been held in
numerous cases in other jurisdictions in the US. The judgment delivered by the High Court in the
present case also has significant implications regarding the insurance, public liability and
personal-injury legislation is concerned (Griffin v Coles Myer Ltd., 1992). It is not possible for
the retail establishment to completely prevent slip and fall off its customers. However, the High
Court has particularly applied a higher standard of care than the standard applicable in the past.

Therefore it can be the views that with the decision delivered in this case, the law in Australia is
moving towards holding the retailers rigorously accountable for injuries that may be suffered by
the customers on their premises and as a result, the retailer will be made the 'absolute insurer' of
the customers (Timberland Property v Bundy, 2005).
Therefore in this case it was stated by the High Court majority that while the onus of proof was
on the appellant, Mrs. Strong to establish that the breach on part of Woolworths was the
condition that was necessary for the fall, such owners can be released by keeping in view the
prospects under the conditions in which cannot be established by evidence when the occurrence
related with the fallen chip took place. The High Court also criticized the grounds of the decision
delivered by the Court of Appeal that a checkup system was not sufficient to prevent the event.
The logic adopted by the Court of Appeal that because chips are usually consumed during lunch
hours and because the injuries suffered by Mr. Strong also took place near the lunchtime, it can
be reasonably assumed that the chip was present on the only briefly.
However, the High Court also criticized the reasoning of the Court of Appeal that due to the
reason that they second cleaner was engaged during the lunchtime,. It was more probable that the
items like chips would have been dropped on the floor in this time.
Therefore in the end, it can be stated that the decision delivered in this case emphasizes the
significance of constant cleaning system and scrutiny in shopping centers if the companies want
to avoid their liability for such incidents. As mentioned in this judgment, “reasonable care
needed inspection and the elimination of slipping dangers from the floor at an interval of not
more than 20 minutes”.

References
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Drakos v Woolworths (SA) Ltd (1991) 56 SASR 431
Dulhunty v J B Young Ltd (1976) 50 ALJR 150
Griffin v Coles Myer Ltd [1992] 2 Qd R 478
Rose v Abbey Orchard Property Investments Pty Limited (1987) Aust Torts Reports 80-121
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Legislation
Civil Liability Act 2002