In Coles Supermarkets Australia Pty Ltd v Bright  NSWCA 17, the Court of Appeal revisited what plaintiffs need to prove in order to be successful in slip and fall liability claims.
The Court held that the duty of care owed by retailers to persons attending their premises is not to be elevated to a guarantee to provide safe premises. Rather, it is a duty to take reasonable precautions.
The plaintiff, Ms Sharon Bright, injured her ankle when she slipped and fell inside a Coles supermarket next to a flower stall operated by the Lynch Group. It was unclear from the CCTV footage precisely how Ms Bright came to fall, although it could be seen that a Lynch Group employee had arranged a flower display in the area approximately 10 minutes prior to the incident. Ms Bright rested her case on the proposition that the Lynch Group employee had left a puddle of water on the floor which subsequently caused her fall.
Ms Bright successfully brought claims for negligence against Coles and the Lynch Group in the District Court of New South Wales. Coles and the Lynch Group appealed to the New South Wales Court of Appeal.
The Court of Appeal overturned the trial judge’s decision on the basis that, on the balance of probabilities, there was not enough evidence to deduct that there was water on the floor prior to the plaintiff’s fall.
CCTV footage showed that there was water on the floor immediately following the incident, although this could be explained by the plaintiff overturning a bucket of flowers as she fell. Crucially, the plaintiff conceded during her oral evidence that she had not seen water on the floor until after her fall.
The Court made a factual finding that, on the balance of probabilities, there had not been water prior to the plaintiff’s fall. However, it stated that even if there had been, it would not necessarily follow that Coles and the Lynch Group were liable. It would have to be proved that Coles and the Lynch Group breached their duty “to take reasonable precautions to avoid injury to a class of persons who may be affected by particularly conduct”. This was not the case here, as the trial judge accepted the evidence of Coles and the Lynch Group: that the risk of spillage was well understood and that they were conscientious in identifying and clearing up such spillage if it occurred.
This case is ultimately fact specific but serves as a reminder that plaintiffs must prove what caused their fall on the balance of probabilities; it is not sufficient for a plaintiff to merely prove that they fell.
The case reiterates the common law position that, whilst retailers owe “a duty to take reasonable precautions” to avoid injury to their customers, this does not equate to a guarantee to provide safe premises.
The decision is a reminder to retailers – and for insurance brokers advising their clients – that the best way to protect themselves, and minimise their exposure to these types of liability claims, is to have adequate floor monitoring and cleaning systems in place, along with evidence of adequate implementation of those systems, such as, a formal floor cleaning roster that is signed every 20 minutes confirming that the floors have been inspected.