Strong v Woolworths Limited [2012] HCA 5

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

KATHRYN STRONG APPELLANT

AND

WOOLWORTHS LIMITED T/AS BIG W & ANOR RESPONDENTS

Strong v Woolworths Limited [2012] HCA 5

7 March 2012

S172/2011

ORDER

1. Appeal allowed.

2. Set aside the orders of the New South Wales Court of Appeal made on 2 November 2010 and in lieu thereof dismiss the first respondent's appeal to that Court with costs.

3. The first respondent to pay the appellant's costs in this Court.

On appeal from the Supreme Court of New South Wales

Representation

B M Toomey QC with T J J Willis and E G Romaniuk for the appellant (instructed by Leitch Hasson Dent Lawyers)

J E Maconachie QC with P Biggins for the first respondent (instructed by Bartier Perry Solicitors)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Strong v Woolworths Limited

Negligence – Causation – Slip and fall injury – Absence of adequate system for periodic inspection and cleaning – Whether factual causation under s 5D of Civil Liability Act 2002 (NSW) ("Act") excludes notions of "material contribution" – Whether appellant had proved factual causation under s 5D(1)(a) of Act – Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104.

Words and phrases – "but for", "causation", "material contribution", "necessary condition", "slipping case", "system of periodic inspection and cleaning".

Civil Liability Act 2002 (NSW), ss 5D, 5E.

1. FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ. The appellant suffered serious spinal injury when she slipped and fell while at the Centro Taree Shopping Centre ("the Centre"). At the time, she was in the sidewalk sales area outside the entrance to the Big W store. This area was under the care and control of the first respondent, Woolworths Limited, trading as Big W ("Woolworths"). The appellant is disabled. Some years before these events, her right leg was amputated above the knee. She walks with the aid of crutches. On this occasion, the tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. The crutch slipped out from under her and she fell heavily. 2. The appellant brought proceedings in the District Court of New South Wales (Robison DCJ) claiming damages for negligence against Woolworths and the second respondent, CPT Manager Limited ("CPT"), the owner of the Centre. The appellant obtained judgment against Woolworths for $580,299.12. The claim against CPT was dismissed. 3. Woolworths appealed to the New South Wales Court of Appeal (Campbell JA, Handley AJA and Harrison J). It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area[1]. Nor was it in question that, on the day of the appellant's fall, Woolworths did not have any system in place for the periodic inspection and cleaning of the sidewalk sales area. The Court of Appeal held that the appellant had failed to prove that Woolworths' negligence was a cause of her injury. The appeal was allowed, the judgment was set aside and the proceedings were dismissed. 4. The appellant appeals by special leave from the orders of the Court of Appeal. The determination of causation in a claim for damages for negligence in New South Wales is subject to the provisions of Div 3 of Pt 1A of the Civil Liability Act 2002 (NSW) ("the CLA"). Section 5D states the governing principles. Among the appellant's grounds of challenge was the contention that the Court of Appeal had adopted an unduly restrictive interpretation of s 5D. As will appear, the Court of Appeal's reasons should not be read as confining the operation of s 5D in the way suggested by the appellant. In any event, the issue raised by the appeal does not turn on the Court of Appeal's analysis of proof of factual causation under the statute. Rather, the appeal concerns the familiar difficulty in "slipping cases" of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff's injury when it is not known when the slippery substance was deposited[2]. In issue is the correctness of the Court of Appeal's conclusion that it was not open to infer that the chip had been on the ground long enough for it to have been detected and removed by the operation of an adequate cleaning system. CPT's interests are not affected by the outcome of the appeal. It filed a submitting appearance. 5. For the reasons to be given, the appeal should be allowed, the orders of the Court of Appeal set aside and, in lieu thereof, the appeal to that Court should be dismissed with costs.