SLIPPING ON A GRAPE – THE HAZARDS OF SUPERMARKET SHOPPING

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Shopping in a supermarket can be a hazardous business and even slipping on a grape can cause serious injury as Mrs Sabgeeta Guru found out when shopping for groceries at the Cambridge Gardens Coles Supermarket. She was walking near an aisle close to shelves displaying fruit and vegetables, when she stepped onto a grape (which she had not seen on the supermarket floor). This caused her to slip forward, lose her balance and fall heavily to the floor, whereby she suffered multiple soft tissue injuries to her limbs and body.

The Supermarket refused to settle and the case was heard by Judge Levy in the New South Wales District Court – see Guru v Coles Supermarkets Australia Pty Ltd )2016) NSWDC 349. Liability was in issue with Coles arguing that it was not negligent in the circumstances because the risk was obvious and they did not have a duty to warn customers of such a risk. Alternatively, Coles argued that Mrs Guru’s own negligence caused or contributed to the fall.

Mrs Guru gave evidence at the trial that, after the fall, she noticed a number of grapes stuck to her foot and saw a number of squashed grapes nearby. An employee who came to her assistance said that she had no chance to clean the grapes because she had been on a lunch break.

Judge Levy found that the defence of obvious risk was not open because Coles wanted customers to notice the displays on the shelves and therefore it would be unreasonable for Mrs Guru to be looking at two places at once – the floor and the shelves.

Supermarkets are well aware of the risks of food and other items dropping on the floor and creating hazards for shoppers, so they have a rostered system for maintaining shop floors. In this case the system broke down, because Coles’ staff were multi-tasking and the designated employee did not fulfil her function after returning from lunch, while others who might have cleaned up were distracted by other tasks.

The Judge also dismissed Coles’ argument of contributory negligence by finding that her momentary inattention while looking at the goods on display was reasonable, because Coles provided attractive displays to capture the attention of shoppers.

In the event, the Court awarded Mrs Guru the sum of $90,130.45 for damages. This decision followed the Queensland case of Woolworths v Grimshaw (2016) QCA 274 where the Queensland Court of Appeal up held the trial judge’s decision that Woolworths was liable for injuries sustained by an employee as a result of slipping on a grape in the fresh produce section of their supermarket.

There, the Court found that a reasonable employer in the circumstances would have foreseen that not placing mats that were readily available near the grape display created a risk of injury.

Most supermarkets operate an effective cleaning and risk removal system, but the real issue in such cases is whether the store knew or ought to have known of the risk and ignored it. Retail stores do not have to necessarily have to operate a 100% risk free environment. The issue is how they react to threats like loose grapes or liquid spills. While the majority of supermarkets have regular cleaning systems, there needs to be regular inspections because of the risk of customers dislodging items.

Supermarkets do not always lose. In the recent case of Woolworths Ltd v McQuillan (2017) NSWCA 202, Colleen McQuillan slipped on a grape in the fresh produce section of Woolworths’ Leichhardt store just after the store opened. The plaintiff commenced proceedings in the NSW District Court against Woolworths in its capacity as owner and occupier of the supermarket, claiming damages for her injuries.

Damages were agreed and the only issue was whether Woolworths had failed to discharge their duty of care and were liable to the plaintiff for damages.

The Judge at first instance found that the plaintiff fell six minutes after the store opened and that the grape was on the floor as a result of the activities of Woolworth’s employees in that area. He also found that a proper pre-opening inspection would have identified the risk posed by the grape. He also found that it was unclear if an inspection had been carried out.

Accordingly, the plaintiff succeeded and was awarded the sum of $151,000.00 plus costs and interest.

Woolworths appealed, challenging the primary Judge’s finding of negligence and alleging two errors of fact made by the Judge – firstly, that the grape was on the floor before the store opened and secondly, that no one from Woolworths was on duty in the produce section of the store between 10.00am (opening time) and 10.06am when the plaintiff slipped and fell.

The majority of the Court held that the Judge’s specific of negligence by Woolworths’ staff in the produce area before 10.00am was not supported by evidence and, even if the grape was on the floor before 10.00am, the Court was not persuaded that there was a casual act of negligence by Woolworths’ staff in failing to observe a single grape on the floor when passing by that area to attend to other duties.

On the other hand, assuming that the grape fell on to the floor after 10.00am, the Court stated that “keeping a proper lookout in accordance with instructions to maintain vigilance for hazards on the floor, such as grapes, does not mean a perfect lookout.”

In the event, the Court of Appeal held that the failure of Woolworths’ staff to observe the grape on the floor did not constitute a causal act of negligence and therefore allowed the appeal and ordered the plaintiff to pay Woolworths’ costs.

McQuillan’s case demonstrates that every case is unique and all of the circumstances surrounding the incident must be taken into account in determining whether the supermarket will be liable, while a person’s individual circumstances will determine the size of the settlement.

If you are the victim of a slip and fall in a supermarket, report the incident to management, take photos of the scene and seek legal advice in the event of something more than a minor injury.

 

Cases where the plaintiff failed

McQuillan v Woolworths M slipped and fell on a grape in Woolworths Leichhardt store and sued W as occupier and operator of the supermarket for damages. The Judge at first instance found that the presence of the grape on the floor arose from the activities of W’s staff in the produce area and the staff simply overlooked the grape in the busy activity that occurred prior to the store opening.

He found for M and awarded her the sum of $151,000.00 plus interest and costs.

Woolworths appealed to the Court of Appeal on two grounds arguing that the trial Judge erred in two factual findings on the road to determining W was negligent. First that the grape was on the floor before the store opened and second that no one was on duty in the produce section of the store when it opened at 10.00am and 10.06am when M fell.

C of A by a majority held that the finding of negligence by W’s staff in the produce area could not stand. Even if the grape was on the floor before 10.00am the Court was not persuaded that there was a causal act of negligence by W’s staff in failing to observe a single grape on the floor when passing by that area to attend to other duties. On the other hand, assuming the grape fell on the floor after 10.00am, the Court said “keeping a proper lookout in accordance with instructions to maintain vigilance for hazards on the floor, such as grapes, does not mean a perfect lookout.

In the end, the Court held that W’s staff’s failure to notice the grape on the floor did not constitute a causal act of negligence.

Razzak v Coles Supermarkets R stepped onto a grape in the Coles fresh produce section, slipped and fell. She was passed a staff member unstacking grapes onto a table. Suddenly she lost her grip, her right foot went backwards and she plunged forward onto her knees and elbows. R sued Coles for negligence and claimed $35,000.00 damages.

Evidence was led that there had been 16 slips or falls in the 12 months leading up to the accident, including three grape slips, one cherry pip and a bean skin.

However, the trial judge found that the grape could not have been on the floor longer than 10 minutes, with four staff spot-checking the floor every 7 to 20 minutes and it was not realistic to expect that every piece of vegetable matter that fell to the floor be picked up instantly.

Accordingly, the plaintiff failed and was ordered to pay the defendant’s costs.

Woolworths v Strong where S tripped on a chip in the sidewalk sales area outside the entrance to Woolworths at a shopping complex in Taree, which was under the control of Woolworths and suffered a serious spinal injury.


Ian Diehm, partner of our litigation team, has over 40-years’ experience in civil litigation, practising predominantly in Personal Injuries Litigation. Should you have a query involving an injury from a slip and fall, workplace or motor vehicle accident, please contact our team at Stephens & Tozer.

26 October 2017

Category: All / Personal Injury

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