FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA [1998] NSWCA 86

FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY JA and FITZGERALD AJA 3 September 1998, 14 October 1998

[1998] NSWCA 86

OCCUPIER'S liability — requirement to take reasonable and proportional reponse to eliminate or reduce risk — failure to warn against an obvious risk — need for a

proper evidentiary basis to found a conclusion that a plaintiff would have heeded a warning.

Mason P J have had the advantage of reading the judgment of Fitzgerald AJA which sets out the facts. I would uphold the appeal and enter a verdict in favour of the appellant on the grounds that there was no breach of the relevant duty of care, and that the respondent failed on the issue of causation. As occupier, the appellant owed a duty to take reasonable care to avoid a foreseeable risk of injury to the respondent (Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479). The issue of what was reasonable is a question of fact. Here the primary facts are not in dispute.

T agree with Fitzgerald AJA that it would be quite unreasonable to hold that a supermarket operator is guilty of negligence whenever any product which a customer might wish to purchase is not placed within the reach of that customer, irrespective of his or her physical characteristics. Supermarkets vary in layout, accessibility and general ambience. A supermarket is a commercial, profit-making venture. Underlying the layout, accessibility and general ambience of a supermarket are commercial judgments based upon the impact of such features upon the customer in comparison to their cost. A supermarket which fails to ensure that goods are accessible to customers will trade badly and fail to attract or retain clientele. On the other hand, the organisation of shelf-space to ensure all products are within easy reach may translate into prices that consumers are unwilling to pay. Between these two extremes are a range of profitable supermarkets which provide customers with a choice. If a customer finds that goods are inaccessible, then he or she could shop elsewhere. It is no part of the law of tort to be mandating uniformity in this area.