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Strong v Woolworths Ltd t/as Big W [2012] HCA 5 Paul Angus & Jessica Barr | 8 March 2012 | Insurance & Financial Services

The High Court yesterday upheld the plaintiff’s appeal from the NSW Court of Appeal in Strong v Woolworths t/as Big W [2012] HCA 5. The 4 to 1 majority accepted the plaintiff’s “slight” probability evidence on causation as sufficient to discharge the onus of proof on the plaintiff in the absence of evidence from the defendant occupier to disprove causation.

Who does this impact? Occupiers of premises and their insurers.

Facts In September 2004 Mrs Strong was on level one of the Centro Taree Shopping Centre outside a Big W shop run by Woolworths Limited. Big W was conducting a ‘side walk sale’ within the common areas outside the Big W shop. By effect of the lease Big W had assumed liability to restore the common area to a clean and proper condition following the conduct of a ‘side walk sale’.

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Big W had two large plant stands on racks in the common area outside the Big W Store creating a corridor directly outside the store. The stands had been in that location from 8:00 am on the subject day. Mrs Strong was an amputee above the right knee and used crutches to move around. Whilst passing the two plant stands Mrs Strong alleged that the tip of one of her crutches slipped on a ‘chip’ or grease stain left by a chip and she fell and suffered injury. The incident occurred at around 12.30pm. Mrs Strong sued both Woolworths as the operator of the Big W shop and CPT Manager Limited, the owner of the Centre. The evidence was that the system in place for cleaning the common area was a fifteen to twenty minute rotation but that the cleaner did not clean the common area during the period of the ‘side walk sale’ as this was Big W’s responsibility. Big W had several employees near or around the entrance of the store whose tasks generally included greeting customers and keeping an eye out for spillages and the like but did not have a formal cleaning or inspection system in place.

At first instance The primary judge specifically addressed the issue of a duty of care and found that as Woolworths was the effective occupier of the particular portion of the premises that it owed a duty of care to Mrs Strong. The judge found against Woolworths and noted it:

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High Court “chips” in on causation: Strong v Woolworths Ltd t/as Big W [2012] HCA 5

‘was the occupier of the relevant portion… (and) through its employees had a duty of care to anyone walking in there. The second defendant ought to have seen something on the ground in the nature of what has been described by the plaintiff and others. …. It was not an insignificant grease mark and the size of the grease mark was not an insignificant grease mark….. It begs a serious question as to why it was not seen by an employee of the second defendant in those particular circumstances and it should have been removed either by the second defendant or the second defendant alerting a cleaner to remove it which is entirely open to the second defendant to do and if that had been done the plaintiff simply would not have come to grief. I can put it no more simply than that. So therefore the second defendant is guilty of negligence’ The primary judge did not specifically address the elements of breach of duty of care and causation of the damage alleged. No finding was made against the shopping centre owner CPT Manager Ltd occupier, Centro.

Court of Appeal Woolworths appealed and the Court of Appeal focussed its consideration on the issue of causation. The principles governing causation in a claim in negligence are set out in section 5D of the Civil Liability Act 2002 (NSW). Section 5D requires that the negligence was a necessary condition of the condition of the occurrence of harm (‘factual causation’) and that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘the scope of liability’). In applying this test, the Court of Appeal held that the plaintiff failed to prove on the balance of probabilities that Woolworth’s negligence caused her fall. The Court of Appeal found that reasonable care did not require the continuous presence of a person looking out for slippery substances in the sidewalk sales area.

They also commented that it could not be concluded that it was more likely than not that had there been dedicated cleaning of the sidewalk sales area at 15 minute intervals that the plaintiff would not have suffered her injury. The Court of Appeal focussed its consideration on the issue of causation as considered by Section 5D of the Civil Liability Act 2002 (“the Act”). As an initial point the Court of Appeal identified that the onus rested on the plaintiff under Section 5E of the Act to prove on the balance of probabilities the matters that section 5D identified as necessary for proof of causation. The court commented that it was, and still is, possible:

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Paul Angus & Jessica Barr | 8 March 2012

‘For a plaintiff to satisfy its onus of proving causation if the court can infer that it is more likely than not that the failure to exercise reasonable care and skill was a necessary condition of the particular harm that the plaintiff suffered.’ However, the Court of Appeal then turned to consideration of what the minimum content of the obligation to take reasonable care to prevent patrons from slipping would have been upon Woolworths. The Court of Appeal commented that this case was not one in which ‘proof of breach of duty in itself makes likely that, had the duty been performed, the damage would not have been caused’ because there was no evidence that would justify a conclusion that taking reasonable care required the continuous presence of someone always on the lookout for potential slippery substances. It found that periodical inspections and cleaning were all that reasonable care required. The court found that: 1. There was no basis for concluding that the chip had been on the ground for long enough for it to be detected and removed by a reasonable cleaning system; 2. There was no evidence of how long the chip had been on the ground or for concluding that it was more likely than not that it was not dropped comparatively soon before the plaintiff slipped.

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High Court “chips” in on causation: Strong v Woolworths Ltd t/as Big W [2012] HCA 5

In response then to the question as to whether the plaintiff would not have been injured if Woolworths had in place a reasonable system for detecting and removing potentially slippery substances the court found the answer to be ‘maybe’ and that this did not satisfy the establishment of causation because the answer required was that it was ‘more likely than not’ and that this had not been established by the plaintiff.

In his dissenting judgment, Heydon J argued that it was incumbent on the plaintiff to prove that it was more likely the chip was deposited before 12.10pm (and therefore that the absence of a cleaning system was “indispensible” to the occurrence of the injury) than after that time (where whether there was a cleaning system or not made no difference to the occurrence of the fall).

The Court of Appeal allowed the appeal and set aside the judgment against Woolworths.

Heydon J conceded that if a plaintiff puts some evidence as to causation (ie as to when the chip was deposited there) then the defendant runs the risk if they do not call evidence to counter that evidence, that the trier of fact will accept the plaintiff has satisfied the evidentiary onus on them to establish causation under s5D(1). However, Heydon J argued that the evidence presented in the case did not, in his view, meet the requirement of “actual persuasion” as:

High Court In a 4 to 1 majority the High Court allowed Mrs Strong’s appeal. The majority accepted that the initial onus rested with the plaintiff to establish causation but rejected the Court of Appeal’s view that the plaintiff had failed to do so. The Court said that the plaintiff was required to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall but that this onus could be discharged by “consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited”. The majority found that there was a higher probability that the chip had been deposited in the 4 hours prior to 12.10pm (when the last cleaning would feasibly have taken place if there was a system of inspection in place by Woolworths) than in the 20 minutes prior to the plaintiff’s fall as there was: “…no basis for concluding that chips are more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning.” The court found that the Court of Appeal’s finding that it was more likely to have been deposited at lunchtime was “speculation”. The majority in essence found that the plaintiff had discharged its initial burden of proof regarding causation not by reference to evidence establishing the time of the deposit of the chip but by a “probability” argument based on time available for the chip to have been deposited and that in the absence of evidence to the contrary from Woolworths this satisfied the requirements of s5D(1) of the Civil Liability Act.

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Paul Angus & Jessica Barr | 8 March 2012

“(Woolworths) did not bear the burden of proving its case that the chip fell after 12.15pm. It was the (plaintiff) who had to prove her case that the chip fell before 12.15pm.” Heydon J was not persuaded that the plaintiff had done so and dismissed the appeal.

Implications The Court of Appeal decision concluded that the onus of establishing causation under s5D of the Act rested with the plaintiff and that the probability theory that the time when it could have been dropped before 12.15pm was greater than the time after the cleaning system would have inspected the area was not enough to discharge this onus. The majority of the High Court however accepted that in this case the “probability theory” was sufficient, in the absence of contrary evidence from the defendant, for the plaintiff to establish causation. Whilst the majority acknowledged the onus placed on the plaintiff by s5E of the Act, in accepting the plaintiff’s submission that once a small piece of evidence, inferential or otherwise, had been raised by the plaintiff to establish causation, that the “evidentiary onus” then rests upon the defendant to essentially disprove causation, the High Court has potentially opened the door for judges at first instance to place greater emphasis on the defendant to “disprove”

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High Court “chips” in on causation: Strong v Woolworths Ltd t/as Big W [2012] HCA 5

causation than appears to have been envisaged by the Civil Liability Act and to allow such judges in cleaning system cases to find “actual persuasion” in “probability” evidence as to when the slip hazard may have been deposited. Defendant occupiers and their insurers should be conscious of this possibility and seek positive evidence to disprove causation rather than submitting that the plaintiff has failed to discharge the onus required by s5D(1) of the Act. On a practical level, occupiers and their insurers in “cleaning system” cases should marshall evidence to establish both the cleaning system in place and the likelihood that the hazard appeared after the last inspection if causation is to be challenged.

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Paul Angus & Jessica Barr | 8 March 2012

For more information, please contact: Paul Angus Partner T: 02 8257 5780 M: 0408 188 808 paul.angus@turkslegal.com.au

Jessica Barr Lawyer T: 03 8600 5007 M: 0417 409 360 jessica.barr@turkslegal.com.au

www.turkslegal.com.au Syd | Lvl 29 Angel Place, 123 Pitt St, NSW 2000 T: 02 8257 5700 | F: 02 9239 0922 Melb | Lvl 10 North Tower, 459 Collins St, VIC 3000 T: 03 8600 5000 | F: 03 8600 5099


High Court “chips” in on causation: Strong v Woolworths Ltd t/as Big W [2012] HCA 5