After an introduction as a personal injury lawyer, the next few exchanges are almost always predictable. There will be a joke that when the person slips on a grape at a supermarket, they’ll call on the services of the lawyer.
While “slip and fall” cases are the bread and butter of a public liability lawyer, it is entirely a different case to determine whether the fruit of the vitis vinifera is to blame or not. For some reason grapes are perceived and maligned as the ghouls of slip incidents in shopping centres all over the jurisdiction.
How the court might evaluate trip and fall cases
On August 14, 2017, the New South Wales Court of Appeal handed down its decision in Woolworths Ltd v McQuillan  NSWCA 202, overturning the decision of the District Court of New South Wales, in a case where a lady did, indeed, slip and fall on a malicious grape at Woolies.
At least one media outlet has found it highly amusing that a case about a rogue grape found its way to a bench of three judges, and even at that point nobody could say what colour the grape was. But to a legal mind, this case bears much more significance.
Unfortunately, even when a person has suffered a serious injury, unless they can convince the court that the defendant was negligent and that that negligence caused the plaintiff to suffer an injury, there is no entitlement to compensation for the plaintiff.
What happened that day
This particular case concerned Mary McQuillan, the plaintiff, and her visit to Woolworths at Leichhardt Marketplace on 25 November, 2012. The plaintiff entered the store shortly after it opened for trade, and then slipped and fell on a grape in the produce area of the store, sustaining injury. The plaintiff brought proceedings in the District Court of New South Wales, and following trial, Maiden DCJ rendered a verdict in the plaintiff’s favour and awarded her a judgment sum of $151,000 plus interest and costs. His Honour found that the grape was most likely dropped by staff during their pre-opening activities, and a number of other findings, including his ultimate finding that the plaintiff’s fall occurred due to a “casual act of negligence” by Woolworths in that the grape had simply been overlooked in the busy activity of the staff before the store opened, notwithstanding unchallenged evidence that there had been several inspections of the trading floor prior to the commencement of trade.
How Woolworths proceeded with the case
Woolworths took exception to a number of findings made by the trial judge and appealed the case, setting out seven grounds of appeal. In short, Woolworths contended that the trial judge should not have found that the presence of a single grape on the floor at the time of the incident was sufficient to establish failure to take reasonable care and thus breach of duty of care, especially in the face of unchallenged evidence that Woolworths had in place a system of cleaning and inspection (that the trial judge himself found “could not be improved”) and that inspection of the floor had taken place. The question arose of what keeping “a proper lookout” actually meant, and whether or not doing so would actually have resulted in that single grape being observed.
The findings that steered the course of the case
The Court of Appeal made a number of findings, ultimately deciding to overturn the District Court’s decision. The most significant for plaintiffs are:
- It is on the plaintiff, the person bringing an action against the defendant, to prove the factual circumstances of the case. In this case, there was no evidence, but merely speculation or guessing, from the plaintiff as to when the grape ended up on the floor. In this case, the defendant provided unchallenged evidence that inspections had been properly carried out and that the fact that the employees may have missed a single grape is not by itself enough to show that the defendant has not taken reasonable precautions against a risk of harm.
- A lack of evidence from the defendant cannot be used to fill gaps in the plaintiff’s case. In this case, the plaintiff sought to argue that the fact that Woolworths had not called evidence from the two employees supposedly on duty in the produce area at the time of the incident meant that there was nobody on duty in the produce area at the time of the incident and that they had not carried out the required pre-opening inspection. This argument failed on the basis that the onus is on the plaintiff to prove factual matters and not on the defendant to provide counter-proof to every proposition made by the plaintiff.
- Taking reasonable precautions against a risk of harm does not mean a defendant is required to take perfect precautions. Woolworths’ staff performing visual scans of the floor that they can see while carrying out their busy duties was found to be enough to constitute keeping a proper lookout, and the contention that they did not keep a perfect lookout (i.e. the contention by the plaintiff that they may have inspected the floor but did not look hard enough as they must have missed the grape that caused the plaintiff to slip, simply because the grape was there) is not enough to establish breach of duty of care of the defendant.
What cost the plaintiff who suffered the injuries
In summary, the plaintiff lost the appeal, because she failed to prove, not that she had suffered a serious injury, but rather that the defendant was actually negligent in failing to detect the rogue grape, let alone that the defendant’s negligence caused her injuries. The consequence for the plaintiff was orders that she was to pay Woolworths’ costs not only of the trial in the District Court, but also Woolworths’ costs in the Court of Appeal (not to mention not being awarded any injury compensation damages).
To be successful in a claim for compensation from a defendant, a plaintiff needs to prove that the defendant was negligent in a legal sense, meaning that they failed to take reasonable precautions against a foreseeable risk of harm. This is a necessary condition of achieving compensation no matter how grievous the injury. If you have had a similar experience in a public space and would like to discuss your case with our team, you can enquire here.