Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1987, March 10 Mason, Wilson, Deane and Dawson JJ.

On Saturday, 20 January 1979, towards midday, the respondent entered what has been described as the "foyer area" of the appellant's supermarket at Mount Waverley in Victoria, intending to buy some cheese. It was a rainy day and in consequence the vinyl-tiled floor of the foyer area had become wet or moist. Unfortunately, before entering the area of the supermarket where the merchandise was displayed, the respondent slipped and fell heavily on the floor. She sustained personal injury. She sued the appellant in the Supreme Court of Victoria for damages for negligence, alleging both a breach of the general duty of care and a breach of the duty owed by an occupier to an invitee. The action was tried by a judge sitting alone.

The learned trial judge ruled that the case was not one in which it was appropriate to look for a duty of care cast in terms of the principles enunciated by Lord Atkin in Donoghue v. Stevenson [1] . In coming to that conclusion, his Honour relied primarily on the decision of the House of Lords in London Graving Dock Co. Ltd. v. Horton [2] . He therefore directed himself in accordance with the classic exposition of the invitor's duty to his invitee as laid down by Willes J. in Indermaur v. Dames [3] , namely, that it was the appellant's obligation to take reasonable care to prevent damage from unusual danger of which it knew or ought to have known.

1. [1932] A.C. 562, at p. 580. 2. [1951] A.C. 737. 3. (1866) L.R. 1 C.P. 274, at p. 288.

The trial judge, while recognizing that the moisture on the floor did constitute some kind of hazard to customers, held that it was no more than customers shopping on a wet morning would ordinarily expect. It was not an unusual danger. However, his Honour acknowledged that there might be room for different views about such a conclusion and he therefore proceeded to consider the case on the assumption that there was an unusual danger. His Honour found that the mopping up procedures adopted by the appellant in order to cope with the wet conditions had not been shown to fall short of what was reasonable. He also considered a number of other possible safeguards which it was alleged that the appellant might have undertaken. In the result his Honour found that the appellant was not in breach of the duty of care that would arise on the assumption he had made. He dismissed the respondent's action.