A recent High Court decision has highlighted the need for vigilance in shop presentation and cleanliness.
It is a timely reminder for business in a retail and cafe environment to make sure that the floors and surrounding areas you have responsibility for are clean and free of rubbish, debris, food dropped on the floor or spillages on a regular basis. This requires there to be a written system that is adhered to by staff in cleaning the premises.
In March 2012 the High Court found Woolworths negligent in failing to remove a greasy potato chip from the floor of one of its shopping centres. Four out of five judges found this way.
At the time, the plaintiff, Ms Strong, was in the sidewalk sales area outside the entrance to a Big W store. On this occasion, the tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped out from under her and she fell heavily. Ms Strong, an amputee who walked with the aid of crutches, fell heavily to the floor of a food court area in September 2004 and suffered a serious spinal injury.
The court said that Ms Strong was required to prove on the balance of probabilities that Woolworths’ negligence was a necessary condition of her injuries. Woolworths’ negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.
Strong sued Woolworths in the NSW District Court, claiming its negligence ’caused her injury as the area was inspected more than four hours before the accident’. She was awarded damages of $580,299.
Woolworths took the case to the NSW Court of Appeal, disputing their responsibility for the injury. That court ruled in favour of Woolworths, finding Strong had failed to prove on the balance of probabilities that its negligence caused her fall.
As the chip was probably deposited at lunchtime it could not be concluded that had there been a dedicated cleaning of the area every 15 minutes, the accident might not have occurred, the court found.
The High Court said:
Reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area, which was adjacent to the food court. The evidence did not permit a finding of when, in the interval between 8.00am and 12.30pm, the chip came to be deposited in that area. In these circumstances, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. The probabilities favoured the conclusion that the chip was deposited in the longer period between 8.00am and 12.10pm and not the shorter period between 12.10pm and the time of the fall.
The High Court ruled the NSW Court of Appeal finding was wrong.
In a majority decision, four of the court’s judges said reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area, which was adjacent to the food court.
On the balance of probabilities, Strong would not have fallen but for the negligence of Woolworths. The decision restores the original verdict from the NSW District Court and is another timely reminder for retailers to be vigilant and thorough in their cleaning processes.
For bakeries and cafes, please ensure that there is a system for cleaning that is adhered to be all employees. As you can see, a fall can be worth over half a million dollars, that can easily be dealt with by proper organisation and attention to detail. Not to mention debris on the floor is off-putting to customers.
Anton duc is workplace relations manager for the baking industry association (nsw employers) and industrial relations advisor for the baking industry association of victoria. anton advises the baa on award modernisation and is also a practicing solicitor with a sydney law firm.