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. The alternative breach which the trial judge found established was the appellant's was omission to place appropriate warning notices in prominent positions. This was a supermarket, which is a shop where the customers are expected to help themselves. So long as a product is on a shelf then there is an implicit invitation to select it. What is the customer to do when an employee is not at hand to assist, and when no step ladder is accessible? I appreciate that the appellant's case was that neither of these situations applied in the present case. However, the question of breach of duty to warn should be first addressed in a general context, recognising (as a matter of judicial notice) that neither means of access to out of reach products is invariably at hand. Leaving to one side the issue of causation, which is dependent upon the respondent having established that it was probable that she would have heeded a warning sign had it been there, the starting point for considering the question of breach was: (a) a product was out of reach of persons well within the "normal" height of likely shoppers; and 2 UNREPORTED JUDGMENTS (b) one possible or apparent means of access to such a customer was the wire basket protruding out into the aisle from underneath the bottom shelf. The objective evidence concerning the basket is reinforced by the respondent's specific response to it. It was an obviously fragile structure that wobbled when tested with the foot. It was apparent to an adult of reasonable intelligence that it was not to be used for standing on. The putative warning signs which the learned trial judge held should have been displayed would presumably have proclaimed something to the effect of: Don't stand on the basket. It is dangerous. It may not support your weight. Surely this was to restate in written form that which was or ought to have been clearly apparent to all but the most shortsighted or stupid customers. It is true that a duty of care may be breached when the defendant fails to take steps designed to protect the shortsighted or the foolish. But it does follow that failure to warn inevitably betokens negligence. Foreseeability of possible injury is relevant, but not determinative. The reasonable occupier is entitled to have regard to the magnitude of the risk, the likelihood of an accident happening in the relevant way, the possible seriousness of the consequences if an accident were to happen, the difficulty, inconvenience and expense of taking the suggested precaution and the likelihood that the precaution would materially have reduced the risk. In the context of the standard of care required of a public authority charged with the management and control of a nature reserve, the High Court has recently emphasised that the general duty of care is one that requires the taking of reasonable steps (Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263). In deciding what is reasonable, the occupier was held entitled to have at least some regard to the fact that entrants will exercise reasonable care for their own safety. See at 273 (Brennan CJ), 279-280 (Toohey and Gummow JJ), 299 (Kirby J). It is foreseeable that if a person jumps off a cliff he or she will be injured or killed. It does not follow that every cliff face must be smattered with warning signs. In some circumstances the danger is so obvious that, when coupled with the likelihood that persons will exercise reasonable care for their own safety, the duty is satisfied by letting the blindingly obvious speak for itself. To establish that a warning sign might have avoided one accident does not prove that it was unreasonable to refrain from putting such a sign in place. This reasoning applies here. In the present case the risk was obvious. True it was foreseeable that some customers might take it. But unlike a live electrical wire, the risk was patent and was not likely to lead to loss of life or serious damage in the unlikely event that it came home. A reasonable occupier was entitled, in my view, to assume that a customer would seek out help in the event that he or she remained anxious to acquire a particular product out of reach. There is an analogy in the area of safe system of work. "There are cases where it is beyond the bounds of reason to hold the defendant to be in breach for failure to adopt [a] suggested precaution" (Glass, McHugh & Douglas The Liability of Employers 2" ed p44). In this context, Kitto J once remarked that: When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so. (Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 180-181.) URJ FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA (Fitzgerald AJA) 3 Another way of looking at the same problem is to ask whether the respondent established that she would have been deterred had the putative warning sign been in place. As the High Court pointed out recently in Chappel v Hart [1998] HCA 55, Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. No evidence to this effect was given. In some cases this may not be fatal to the plaintiff's prospects (cf O'Brien v Wheeler, Court of Appeal, unreported, 23 May 1997 at p6-p7 per Mason P; Chappel at [32] per McHugh J). After all the victim may be dead. But the present case is one where some attempt should have been made by the respondent to shoulder this burden of proof on causation, as it touched the failure to warn allegations of negligence. In my view there was neither a finding nor the evidentiary basis for a finding that the respondent would, if warned, have heeded the warning. This is an additional reason the appeal should succeed. The appeal should be upheld and a verdict entered for the appellant. Priestley JA I agree with the orders proposed by Fitzgerald AJA, for the reasons he has given. Fitzgerald AJA On 22 September 1994, the respondent fell and injured herself while shopping in the appellant's supermarket in the Westfield Shoppingtown at Warrawong. The trial judge held that the respondent suffered damage partly as the result of the appellant's fault and partly as result of her own fault. He held that the appellant was 80% to blame and that the respondent was 20% to blame, and, in accordance with s10 of the Law Reform (Miscellaneous Provisions) Act 1965, he reduced the damages recoverable by the respondent by 20%. The appellant submitted that the respondent was solely to blame for her own damage, and that, in any event, the damages awarded were excessive. The latter point was not elaborated upon. Shortly stated, the respondent attempted to take a product which she wished to purchase from a shelf in the supermarket. The product was in a jar which was about 10 to 15 inches from the front edge of the shelf which was above the respondent's head. The respondent, whose height is 5 feet 4 inches, could not reach the jar even when she stood on "her tippy toes". Underneath the bottom shelf, merchandise was contained in a line of plastic coated steel mesh baskets placed on the ground. The trial judge described the line of wire baskets as "... a wire basket system extending out into the aisle past the outer edges of the shelf system by about 7 inches", with the "top edge of the wire basket containers... about 10 inches above the ground level'. The respondent put her left foot on the rim of one of the baskets and tested it to see if it would carry her weight, which was approximately 71 to 72 kilograms. Although the basket "wobbled a tiny bit", and she knew that the wire basket was not to be used for standing on, the respondent decided that it would carry her safely, and put her whole weight on her left foot on the rim of the basket and used her left hand to support herself by holding onto the top shelf. She then "made a grab for the jar" with her right hand. She fell and was injured. Her evidence was that the basket remained quite secure when she stood on it and that it was her left leg that slipped, but, although the trial judge generally accepted the respondent's evidence, he found that "the basket did tip under [her] weight." There is no obvious evidentiary basis for that finding. There was no need for the respondent to act as she did in order to obtain the product which she wished to purchase. Boxes containing merchandise were stacked on top of each other near the point where the respondent was standing 4 UNREPORTED JUDGMENTS prior to placing her weight on the basket. An employee of the appellant was standing on a ladder removing stock from those boxes and placing it on shelves. There was another aluminium step ladder about 3 feet in height leaning against the boxes. The respondent did not request assistance or permission to use the ladder. His Honour found that the respondent acted spontaneously, without turning her mind to seeking help from the nearby shop assistant or permission to use the ladder or to taking and using the ladder without permission. He said that, "... after she had tested the wire basket with her left foot... without placing her whole weight on the basket to determine whether it was safe and having carried out that test... assumed wrongly that it was safe to stand on the basket...", the respondent ".. then stood on the basket with her left foot her whole weight coming down on the basket with her right foot above the ground and then in a lunging grasping motion in hurried fashion she reached out with her right arm to grab or snatch the jar above her head at the same time trying to maintain her balance with her left hand by holding onto the shelf...". The judgment continued: "Tn these circumstances it is little wonder that she lost her footing on the wire basket. She placed herself in a precarious balancing position and with the sudden movement of her body lunging upwards it was inevitable that there would be a risk that she would lose her balance or that her foot would slip on the basket as she mentioned it did and that she would fall to the ground injuring herself..." Later, his Honour said that "...the accident causing the [respondent's] injuries from a factual viewpoint was caused solely by the circumstance of her attempting a balancing act by standing with one foot on the wire basket and at the same time making a grasping motion for stock which was beyond her reach." (Emphasis added). His Honour also described the operation of the appellant's business and the shopping activities which took place within its supermarket, which are so typical and well-known that it would be futile to recite the material portions from his reasons for judgment. He found that there were no notices advising or inviting customers to seek assistance from the appellant's employees if they required access to stock which was beyond their reach, and that no warning or invitation to that effect was given to customers over the public address system, if there was such a system in the supermarket at the time of the accident, which was not proved. Other points made by his Honour were that the appellant's "... placing of the shelves is high relative to other supermarkets conducted by competitors...", and that "... a woman of the [respondent's] height... would be unable to reach the stock placed on the shelf in question whenever... some items of the stock in question have been purchased by other customers from the front of the shelving leaving the remaining stock towards to the rear of the shelf. In these circumstances a customer in the [respondent's] position and height faces the dilemma of wishing to take the stock but unable physically to reach it unaided." Further, according to his Honour: "The staff usually to be found in the aisles were there primarily if not wholly to restock the shelving and not to personally act as sales assistants in obtaining the desired merchandise for the customer." After describing the respondent's "manoeuvre", as "... fraught with danger', his Honour said: "The prudent course for the [respondent] to have taken would have been to ask for assistance from the nearby shop assistant or take and use the nearby step ladder. In the circumstances her conduct was negligent in that she did not advert URJ FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA (Fitzgerald AJA) 5 to the risk of falling or losing her balance whilst standing with one foot on the basket not intended and should have been readily apparent to her that it was not intended to be a platform to stand on". However, the trial judge later expressed himself as "... satisfied that the conduct of the [respondent] was not the main cause of the injury suffered by her but a contributing cause. The main responsibility for the injury suffered by the [respondent] as a customer in the [appellant's] premises falls on the [appellant] by not providing a safe shopping environment for both the careful and the careless shopper". (Emphasis added). By way of elaboration, his Honour held that the appellant was "... required to take account of the possibility of inadvertent and negligent conduct on the part of its customers which may expose the customer to the risk of injury", and that the "... possibility that the customer will act inadvertently or without taking reasonable care for his or her own safety may give rise to a foreseeable risk of injury and the [appellant] is bound to take care to guard against that risk...". In his Honour's opinion, "... it was reasonably foreseeable by the [appellant] that a customer of smallish height in its supermarket premises may have been unable to access stock on a high shelf where the stock was located at the back of the shelf and then may have exposed himself or herself to the risk of injury by standing on the rim of the wire basket placed at floor level. It is a well known trait of human behaviour to use nearby objects to stand on when something is out of reach notwithstanding that the object is not intended to be used for that purpose and that there is a risk of falling if used". His Honour considered that "... this foreseeable risk of injury to the customer should and could have been guarded against by the [appellant] in a number of practical ways with little expense, difficulty or inconvenience". One way of guarding against the foreseeable risk of injury which the trial judge suggested was "... to limit the maximum height of shelving to ensure that stock can be readily accessed by a customer of small height". His Honour's judgment continued: "Tf, for economic reasons, this [ie, limiting the maximum height of shelving] is considered to be inadvisable then another practical way would have been the placement of warning notices in prominent position calculated to come to the attention of customers warning them of the danger of reaching for stock out of their reach by standing on shelving or wire basket shelving and requesting the customer to avoid this danger by inviting them to seek assistance of the shop employees or by using step ladders provided for that purpose." Reference was earlier made to the trial judge's statement that the appellant's employees were not "sales assistants... obtaining the desired merchandise for the customer". However, there was not, and could not legitimately have been, a finding that the employee working near the respondent would not have assisted her, if asked. His Honour's finding of negligence by the appellant then followed. He said: "The [appellant's] response to the foreseeable risk of injury seems to be that it relied on the good sense of its customers to either seek assistance from employees or to take it upon themselves without any invitation or permission to take and use step ladders to stand on. This response is in my view an inadequate response to protect the negligent or inadvertent customer. Accordingly I am satisfied that the [appellant] was in breach of the duty of care owed by it to the [respondent] and was negligent." 6 UNREPORTED JUDGMENTS Despite the appellant's earnest submission to the contrary, it was open to the trial judge to find that the possibility that a customer would act in the manner which resulted in the respondent's injury was reasonably foreseeable by the appellant. The appellant's business operation invited customers to personally select merchandise which it was obvious would sometimes be out of reach, and the baskets at ground level provided a visible, although patently dangerous, opportunity for a customer to extend his or her reach to take possession of the selected product. The appellant's duty of care to its customers required a proportional response to that risk to eliminate it, if possible, or at least to reduce it appropriately. The trial judge identified only two steps which the appellant should have taken, and the respondent did not seek by a notice of contention to have this Court determine that any additional steps were reasonably required of the appellant. The first of his Honour's criticisms of the appellant's shopping system was that the maximum height of shelving should have been limited "to ensure that stock can be readily accessed by a customer of small height". That finding cannot be justified. It is manifestly impractical, and would be likely to have adverse economic repercussions for supermarket operators and their customers. In my opinion, it would be grossly 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. The other breach of its duty of care which the trial judge assigned to the appellant was its omission to place appropriate warning notices in prominent positions. While the appellant argued that such a course was not required and would have lacked utility, I consider that the shopping system which the appellant made available to its customers, involving high shelves with some merchandise out of the reach of some customers and the baskets on the floor, presented a risk which obliged the appellant to warn shoppers not to stand on the baskets but to seek assistance, or the loan of a ladder, from one of the appellant's employees. Having regard to the disparate cross section of customers which the appellant must have known shopped at its supermarket, it was reasonably foreseeable by it that some might act stupidly. The baskets presented a particular risk because of the way in which they jutted out from underneath the shelves and presented an obvious foothold for persons who wished to obtain a product from a higher shelf which they could not reach. It must have been evident to the appellant that customers, including children and those prone to inattention, misjudgment or insufficient regard for their own safety, might not realise that standing on the baskets was a "manoeuvre fraught with danger", or might nonetheless stand on a basket. Suitably placed warnings which made the risk clear were a reasonably necessary response to the risk and the appellant was negligent in not taking that course!, In order to take advantage of the appellant's breach of its duty of care in failing to warn her, the respondent was required to prove that that failure probably materially contributed to her injury. In the circumstances, that conclusion is dependent upon a finding that, if she had been warned, the respondent probably 1. Wyong Shire Council v Shirt (1980) 146 CLR 40; McLean v Tedman (1984) 155 CR 306; Bus v Sydney County Council (1989) 167 CLR 78; Nagle v Rottnest Island Authority (1993) 177 CLR 423; and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. URJ FRANKLINS SELFSERVE PTY LTD v BOZINOVSKA (Fitzgerald AJA) 7 would not have carried out her "manoeuvre fraught with danger". She gave no evidence to that effect, and was not cross-examined on the point. Whatever the inherent probative limitations of such evidence, there is no justification for a presumption that an appropriate warning would probably have been effective or an assumption that an honest witness will always give evidence that he or she would probably have heeded such a warning. In addition to the absence of direct evidence concerning the probable effect of a warning sign on the respondent's behaviour, there was no express finding in the respondent's favour on this issue. The position is further complicated by the trial judge's inconsistent conclusions with respect to causation; namely, that the respondent's injuries were "caused solely by her conduct", which was, however "not the main cause suffered by her but a contributing cause". With considerable hesitation, I have decided that the trial judge's findings concerning the steps which the appellant should have taken, together with his apportionment of "fault", implicitly contain a conclusion that the respondent would not have stepped on the basket if she had been warned not to do so. Even more hesitantly, I have decided that such a conclusion was open to the trial judge despite the paucity of evidence. In Chappel v Hart,2 McHugh J and Kirby J both referred to the subjective nature of the issue concerning the probable effect of a warning on a particular plaintiff, and Gaudron J emphasised the need for a proper evidentiary foundation for a conclusion that a plaintiff would have heeded or been influenced by a warning. Nonetheless, in the absence of direct evidence by a plaintiff concerning what he or she would have done if a warning had been given, there might be evidence from which an inference can be drawn that the plaintiff would have heeded a warning3. In the present case, such an inference could only be drawn from the respondent's evidence that "... she tested the wire basket... and having carried out that test...assumed wrongly that it was safe to stand on the basket...". In my opinion, that was sufficient. A warning would have dispelled that assumption, and the respondent's testimony inferentially indicates that she would not have proceeded to stand on the basket if she had not thought it safe to do so. As noted earlier his Honour apportioned liability 80% against the appellant and 20% against the respondent. While the reluctance of an appeal court to interfere with a decision that a particular apportionment of liability between tortfeasors is "just and equitable" is well established, this Court will reassess apportionment, like the exercise of any other broad discretion, if the tribunal of fact has misunderstood the evidence, disregarded material considerations or had regard to extraneous considerations, demonstrably erred in principle or reached a patently unreasonable conclusion'. In Wynbergen v Hoyts Corporation Pty Ltd5, Hayne J, with whom the other members of the High Court agreed, saidé: "\.. No doubt the making of the apportionment which the legislation requires involves comparison of culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element 2. Unreported, [1997]HCA 55, 2 September 1998. Cf Nagle v Rottnest Island Authority (1993) 177 CLR 423. 4. See, for example, Macquarie Pathology Services Pty Ltd v Sullivan (Unreported, 28 March 1995); Australian Breeders Co-Operative Society Ltd v Jones (1997) 150 ALR 488, 546-548. (1997) 149 ALR 25. 6. 149 ALR, at p29. » wr 8 UNREPORTED JUDGMENTS to be considered. Regard must be had to the single 'relative importance of the acts of the parties in causing the damage' and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination..." As earlier noted, there was no evidence upon which his Honour could have concluded that the appellant's employees were unavailable or unwilling to assist a customer to take a product from a shelf when the customer could not reach that product. There is also no basis for a conclusion that the respondent would not have been permitted to use the step ladder which was immediately adjacent to where she carried out her "manoeuvre fraught with danger". The appellant's material conduct was a failure to warn the respondent not to carry out such a manoeuvre, which was foreseeable, although unlikely. Her material conduct was the performance of the manoeuvre, which involved a serious disregard for her own safety. In my opinion, in these circumstances, the trial judge's apportionment of fault 80% against the appellant and 20% against the respondent cannot be sustained by reference to the considerations referred to by Hayne J in Wynbergen'. Her "fault" was, in my opinion, considerably greater than the "fault" of the appellant. Since the appellant only sought an equal apportionment of fault, that is the course which should be adopted. In my opinion, the appeal should be allowed with costs, the damages awarded below should be set aside, and the respondent awarded damages equal to half of the amount assessed by the trial judge. The appeal is allowed with costs, the damages awarded should be set aside, and the respondent awarded damages equal to half of the amount assessed by the trial judge. Counsel for the appellant: R Sheldon Solicitors for the appellant: Richard & Glover Counsel for the respondent: R Hanlon Solicitors for the respondent: Andrew Fegent & Co 7. (1997) 149 ALR 25.