Sour Grapes: Supermarket Liability in Causal Act of Negligence


WOOLWORTHS LTD V MCQUILLAN [2017] NSWCA 202

On 25 November 2012 Colleen McQuillan slipped and fell on a grape on the floor in the fresh produce section of a Woolworths supermarket, shortly after it had opened at 10am. She issued NSW District Court proceedings against Woolworths. The parties agreed damages and she was otherwise successful on the issue of liability, the primary judge finding:

  • McQuillan fell about 6 minutes after the store opened.
  • The grape was on the floor due to the activities of Woolworth’s employees in that area before the store opened, and had not been noticed or cleared up beforehand.
  • A proper pre-opening inspection would have identified the risk.
  • It was unclear if one had been carried out.

Woolworths appealed. Amongst other things it argued it was equally likely a customer dropped the grape after the store opened and there was no evidence a Woolworths employee was responsible for this. Woolworths also argued McQuillan had not attempted to prove what reasonable care was required in the terms of the minimum frequency or method of inspections in the fresh produce section; she had submitted taking reasonable care required Woolworths to ensure it “did not itself cause grapes to be on the floor” and if it did, it must have been negligent.

Woolworths said there was a difference between keeping “a perfect lookout” and exercising reasonable care to keep “a proper lookout” for hazards on the floor, like grapes, even if the grape had been dropped after 10am.

The NSW Court of Appeal unanimously allowed the appeal. It held that there had been an acceptable system of inspection and cleaning in place on the material date and no evidence it had not been adhered to. It was not persuaded that a single grape on the floor being missed in the busy period prior to opening (as found by the primary judge) constituted a causal act of negligence. Conversely, had a customer dropped the grape after the store opened, 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”. McQuillan was ordered to pay Woolworths’ trial and appeal costs.

Conclusion

Our earlier article A SLIP, BUT NOT A BANANA SKIN – SUPERMARKET DAMAGES CLAIM DENIED noted the importance for occupiers of premises open to the public of regular inspections and cleaning of areas where there is a risk of slips, trips and falls. Such measures can be easy to implement and relatively cheap when compared to the severity of any injury which might be sustained in such an incident. Woolworths v McQullian sends a clear signal that reasonable precautions are the key, not perfection (see also Section 5B Civil Liability Act 2002 (WA)).

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