Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woolworths Ltd v Ryder [2014] NSWCA 223 Hearing dates: 30 May 2014 Decision date: 16 July 2014 Before: Basten JA at [1]; Ward JA at [13]; Sackville AJA at [14] Decision: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 25 July 2013. 3. In lieu of Orders 1 and 2 made by the primary Judge, make the following Orders: (1) Judgment for the defendant (Woolworths). (2) The plaintiff pay Woolworths' costs. 4. The respondent pay Woolworths' costs of the appeal. 5. Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - whether an operator of a supermarket in a shopping centre owes a duty of care to users of a common area near the entrance of its premises in circumstances where a hazard is created by use of a product purchased from the vendor - whether the primary judge's finding that an admission was made by an employee of the occupier was supported by evidence - whether, assuming a duty of care to exist, the supermarket operator breached its duty Legislation Cited: Civil Liability Act 2002 (NSW) s 5B Cases Cited: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 Fox v Percy [2003] HCA 22; 214 CLR 118 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Tracey Leeann Ryder v Woolworths Ltd (District Court (NSW), 25 July 2013, unrep) Texts Cited: Sappideen and Vines, Fleming's The Law of Torts (10th ed, Lawbook Co, 2011) Category: Principal judgment Parties: Woolworths Ltd (Appellant) Tracey Ryder (Respondent) Representation: Counsel: J E Sexton SC and J W Catsanos (Appellant) C T Barry QC and A P Quinlivan (Respondent) Solicitors: Meridian Lawyers (Appellant) CMC Lawyers (Respondent) File Number(s): 2013/235193 Decision under appeal Jurisdiction: 9101 Date of Decision: 25 July 2013 Before: Armitage DCJ File Number(s): 2011/160295 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent (Plaintiff) slipped on soapy residue while walking in the common area of a shopping centre, adjacent to the appellant's supermarket. The residue was deposited by a child blowing bubbles from a bottle of soapy liquid sold by the supermarket to her parents. An employee of Woolworths was found to have opened the bottle when the parents were at the checkout counter. The primary Judge found that the appellant owed a duty to the Plaintiff to take reasonable care to prevent a danger being created by reason of the use of products purchased at the supermarket. His Honour also found that the appellant breached its duty of care by failing to warn the parents against allowing the child to use the soapy liquid to blow bubbles in the common area. The appellant challenged the primary Judge's finding that one of its employees made an admission shortly after the respondent's fall, and in the respondent's hearing, that the bottle had been opened by the appellant's staff at the checkout counter. The appellant also challenged the primary Judge's findings that it was under a duty to take reasonable care for the safety of people walking along the common area adjacent to its premises, and that it had breached that duty. The Court held: 1 The primary Judge's finding that an admission was made by an employee of the appellant, but that it was made by a different employee to that identified by the respondent, was not supported by the evidence: [22]-[33], [36]-[37]. 2 The failure of the appellant to call the employee that, according to the primary Judge, made the admission did not attract rule in Jones v Dunkel because that rule only applies where a party is required to explain or contradict something. The respondent's evidence was that the admission was made by a different employee: [35]. Jones v Dunkel [1959] HCA 8; 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; applied. 3 The duty of care formulated by the primary Judge had no basis in principle or policy. The duty identified conflated the reasonable foreseeability of harm with the existence of a duty and would impose an intolerable burden of potential liability on owners and occupiers of retail premises: [51]-[57]. Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; Sullivan v Moody [2001] HCA 59; 207 CLR 562; Tame v New South Wales [2002] HCA 35; 211 CLR 317; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649; Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51; Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8; applied. 4 If a duty of care existed, the primary Judge erred in finding that the appellant breached its duty: [60]-[65] (Sackville AJA, Basten and Ward JJA not deciding) Judgment 1BASTEN JA: At trial in the District Court, Armitage DCJ upheld the respondent's claim for damages suffered when she slipped and fell in the common area of a shopping centre, adjacent to a supermarket operated by Woolworths Ltd. It is not now in dispute that the respondent fell when she stepped on an area made slippery by soapy liquid spilled by a little girl blowing bubbles. In the events captured on CCTV, the child emerged from Woolworths' store, through a passageway beside a checkout counter. She later left the area in the company of a man and woman with a trolley and a pram who had come past the same checkout and who were probably her parents. 2There was tenuous evidence that a member of Woolworths' staff had opened the bottle of bubble blowing liquid. Liability on the part of Woolworths was upheld by the trial judge, ostensibly on two bases. The first was that a Woolworths' employee had opened the bottle of soapy liquid for the child. The second was that, if the employee were aware that the object had been opened (perhaps by a parent) and was in a position "to have a look outside the defendant's premises in immediate proximity to the checkout in question and see if anything had spilled from the soapy water container which the little girl was holding", and failed to do so, there was a breach of duty owed to any person walking past. However, the trial judge noted that "the second basis" was "not a separate and distinct basis of liability ... because it depends on the casual act of negligence of a person in the employ of Woolworths in opening the container of soapy water in the first place": judgment, p 63. 3I agree with Sackville AJA that the finding that an employee had in fact opened the bottle should be set aside. 4In order to determine whether there should be a retrial, it is necessary to consider the further questions raised by the appeal, namely whether Woolworths owed the respondent a duty of care and, if so, whether it breached that duty. 5The pleading on which the trial was run was a statement of claim which had gone through two sets of amendments, but which contained many superfluous particulars of breach and no clear statement of the duty. Nor was the question of duty adequately identified and addressed by the trial judge. In most cases, this may not matter because the existence of a duty is uncontroversial and, despite distinctions drawn by the law, in practical terms a failure to distinguish content from breach will often be immaterial. One reason for a failure to focus on this distinction may be the confusion inherent in s 5B of the Civil Liability Act 2002 (NSW) in Pt 1A Div 2, which is headed "Duty of care", but which is better identified as dealing with breach. The pleader, however, carefully abjured any reference to the language of the legislation. 6In the present case, identifying the duty was a matter of importance. The class to whom any duty was owed must have been "members of the public present in the common area of the shopping centre immediately adjacent to Woolworths' premises." So stated, the difficulty for a person who suffered injury in that area is immediately apparent, in so far as responsibility was sought to be imposed on Woolworths. It did not occupy the area; it did not operate a business in that area; it had no exclusive control over the area and, if it had any contractual rights or obligations with respect to the area, they were not identified. Secondly, as the facts of the case, fully set out by Sackville AJA, illustrated, the act which was the immediate cause of the hazard to which the respondent succumbed was not the act of any member of Woolworths' staff; it was the careless act of a child. The child was at all relevant times in the care and control of her parents, not Woolworths. 7As Sackville AJA explains, the failing in the reasoning below was to equate the reasonable foreseeability of harm with a duty of care: foreseeability of harm is a necessary element but not sufficient to create a duty: Sappideen and Vines, Fleming's The Law of Torts (10th ed, Lawbook Co, 2011) p 152. Identifying a duty is a prospective exercise, focusing on the standards of careful conduct reasonably expected by the community. One problem is to formulate a duty in terms which would fit the known facts. If the duty is too narrowly drawn by reference to that which is found to have to have been done or omitted, there will be a real danger of erroneously applying hind-sight. If the duty is drawn too broadly, it will provide no guidance in identifying the boundaries of acceptable levels of care in particular circumstances. 8At one point the trial judge suggested that the precaution against harm required by a duty to take reasonable care was for the employee to refuse to open the container and to suggest to the mother that it should only be opened when they had left the premises so that its contents did not spill: judgment, p 35. If by "open the container" the judge meant "take the top off", that might be one thing; if he merely meant "break the seal" that might be another. If the staff member had handed the container with the seal broken to the child, that might have been one thing; if she had passed it to a parent who had passed it onto the child, that might be another. If the reasonable precaution included giving a warning, it is not known whether the staff member or the mother or both in fact gave a warning or even explicit instructions to the child which, as it turned out, were disregarded. If that were part of the duty imposed, the claim should have failed. 9Although the existence of a duty is said to be a question of law, the circumstances in which it will arise will be fact-specific. Unless it could be said that the staff of Woolworths had an obligation never to break the seal of a container holding fluid which, if spilled, might lead to a slip and fall, no duty of care adequate for the present circumstances could be formulated. However, spills and breakages are a fact of life in retail shopping centres. It is difficult to see the social benefit in imposing a duty on an employee of a supermarket, which would not apply to an employee of the take away food shop just across the common area. 10For these reasons, as well as those further articulated by Sackville AJA, there was no duty of care established in the particular circumstances of this case. 11Given the scope of the duty identified by the trial judge, and the finding that the necessary precaution was not taken, breach followed inevitably. If such a duty did not exist, one could not consider breach without redefining an hypothetical duty. Accordingly, it is not meaningful to consider separately the correctness of the finding by the trial judge that there had been a breach of duty. 12I agree with the orders proposed by Sackville AJA. 13WARD JA: I agree with Sackville AJA and with the reasons of Basten JA. 14SACKVILLE AJA: The appellant (Woolworths) was the occupier of a supermarket located within the Westfield Shopping Centre (Centre) at Mt Druitt. On 10 November 2010, the respondent was injured when she slipped on a patch of soapy liquid on the floor of the common area of the Centre, just outside the premises occupied by Woolworths. The point at which the respondent fell was close to the checkout counters of the supermarket. 15As it happens, CCTV footage was available of the incident and of events in the area leading up to the respondent's fall. No doubt by reason of the footage, it is not in dispute that the soapy liquid found its way onto the common area as the result of the actions of a little girl, about five years of age. She is shown on the CCTV footage walking or skipping from the supermarket checkout area into the passageway between the supermarket and other areas occupied by retailers. The CCTV footage also shows the little girl at or near the checkout area in the company of a man and woman who, it can be inferred, are the girl's parents or guardians. When the little girl is in the passageway she can be seen blowing bubbles from what the primary Judge (Armitage DCJ) described as "a rod of some kind ... with a ring on the end of it". The little girl then glances at the floor and rubs the area with her feet. Shortly afterwards, the respondent, who is walking along the passageway parallel with the boundary between the supermarket and the common area, slips at the spot where the little girl has been blowing bubbles. The respondent had not been a customer of Woolworths immediately prior to the fall, but gave evidence that she was going into the supermarket. 16The primary Judge found that one of Woolworths' employees had probably opened the container of soapy liquid at the checkout counter, either at the request of one of the child's parents or the child herself. According to the primary Judge, this constituted a breach of the duty of care owed by it to the respondent. His Honour also found that the respondent had established that Woolworths' negligence was a cause of her injuries. The primary Judge awarded the respondent damages of $176,032 and entered judgment in her favour in that amount: Tracey Leeann Ryder v Woolworths Ltd (District Court (NSW), 25 July 2013, unrep). 17Woolworths raises three issues on the appeal. 18First, it challenges the primary Judge's finding that an employee of Woolworths had a brief interchange with another employee in the respondent's presence shortly after she fell in which an admission against Woolworths' interests was made. His Honour found that the interchange occurred between Mr Bloxsome, a checkout operator, and Ms Williams who worked at a service counter near the checkout area, very soon after Mr Bloxsome arrived at the scene. The conversation found by his Honour was to the following effect: "Mr Bloxsome: What's happened here? Ms Williams: It's what we opened before for the lady with the pram." 19The primary Judge found that Ms Williams' response constituted an admission that she was authorised to make on behalf of her employer, Woolworths. His Honour relied on the admission to: "determine on the balance of probabilities that an employee of Woolworths in fact opened the container of soapy water from which the little girl subsequently blew bubbles, and from which the substance over which the [respondent] fell eventually spilled." It was this finding that was critical to his Honour's conclusion that Woolworths breached the duty of care it owed to the respondent. 20Secondly, Woolworths disputes the primary Judge's finding that it was under a general duty to take reasonable care for the safety of people walking along the passageway, if Woolworths was aware of the danger to them that could be obviated by the exercise of reasonable care. Mr Sexton SC, who appeared for Woolworths, submitted that knowledge of a foreseeable risk of harm, even with a capacity to take some preventative action, is not a sufficient basis for imposing a duty of care, particularly when the supposed duty requires control over the conduct of third parties. 21Thirdly, Woolworths contends that even if it owed a duty of care to the respondent, the primary Judge erred in finding that it had breached its duty. Mr Sexton submitted that once the requirements of s 5B of the Civil Liability Act 2002 (NSW) (CL Act) are taken into account, which the primary Judge had failed to do, his Honour should not have found that it was a breach of duty simply to open a container of soapy water for a child who was accompanied by her parents. Mr Sexton contended that in view of the criteria specified in s 5B(2) of the CL Act, there was no basis for finding that a reasonable person in Woolworths' position would have taken the precautions identified by the primary Judge. The Admission 22The primary Judge accepted that very soon after the respondent fell in the passageway area, a young woman came over to her from near the Woolworths' service counter. His Honour identified that person from the CCTV footage and other evidence as Ms Ashmore, Woolworths' Customer Service Team Leader at the Mt Druitt store. His Honour also acknowledged that the respondent's evidence was that the female Woolworths employee who made what I shall describe as "the admission" to Mr Bloxsome was the same person as arrived at the scene from near the service counter. Nonetheless, the primary Judge found that the admission was made not by Ms Ashmore, but by Ms Williams, who was behind the service counter at the time she spoke to Mr Bloxsome. 23His Honour's reasoning, in summary, was as follows: * The respondent was a credible and reliable witness. While her evidence, particularly in relation to the admission, was "highly convenient" and therefore to be assessed carefully, the respondent genuinely believed that the person identified on the CCTV footage as Ms Ashmore had spoken the words constituting an admission to Mr Bloxsome in response to his inquiry. * The accuracy of the respondent's recollection was a separate question. However, his Honour rejected Woolworths' submission that the respondent, having just been hurt and in a shocked and painful state, could not possibly have heard a conversation occurring at the other side of the service desk. On the contrary, his Honour thought that: "a conversation between employees as to the possible mechanism of her fall would have been of great interest to her at that time, and therefore that she may well recall it for that very reason". He therefore accepted the respondent's evidence that the conversation occurred as she recalled it. * Although his Honour initially thought that the suggestion that the admission was made by someone other than Ms Ashmore was "on the [respondent's] own evidence, untenable", he considered that there was: "room for the [respondent] to have believed mistakenly in her evidence that Ms Ashmore was the female employee who was attending the service counter at the time of the [fall]". Thus he found that the respondent had mistakenly assumed that it must have been the employee behind the service counter who came to her aid and that it had been the same employee who had previously made the admission to Mr Bloxsome, at a time when she was located behind the service counter. * Mr Bloxsome had conceded that "the lady behind the service counter" could have said the words constituting the admission, although he could not remember any such interchange. * The CCTV footage was consistent with Mr Bloxsome having a conversation with a person behind the service counter. * Since Woolworths did not call Ms Williams, an inference was open, and ought be drawn, that her evidence would not have assisted Woolworths. * Nobody other than Ms Ashmore in Woolworths' camp had denied that the relevant words were said, and Ms Ashmore only denied that she herself had said the relevant words. 24The CCTV footage shows that Mr Bloxsome arrives at the scene of the accident shortly after the respondent's fall. She is in a seated position. Mr Bloxsome turns towards the service counter and apparently says something to the person standing there. (As the evidence makes clear, that person is Ms Williams). Mr Bloxsome accepted in his evidence that when he arrives at the scene he speaks to "the lady behind the service counter". 25The footage then shows that Mr Bloxsome returns to where the respondent is sitting and he begins to clean the floor near her, using paper towels. About 45 seconds after Mr Bloxsome first appears, Ms Ashmore approaches the area from a point between the checkout counter and the service counter and appears to speak to the respondent. She leaves shortly thereafter. 26In the respondent's evidence in chief she gave this account of the critical exchange with the female Woolworths employee: "Q. I think you were describing a situation after your accident where you were sitting up and you were approached by a Woolworths employee, a female, who had been serving behind what you described as the service counter. Do you recall that? A. Yes. Yes, I do. Q. You were telling his Honour that when she approached you, she told you to stay where you were and that she had called centre management. A. Right. Yes. Q. Is that right? A. Yes. Q. Accordingly, you stayed where you were, did you not? A. I did, yes. Q. Did anyone else come up to you and talk to you whilst you were on the ground? A. Before that, the-- Q. Before what? A. The Woolworths employee, the girl, had called a gentleman over, another employee from Woolworths. Q. Male or female? A. Male. Q. Thank you. A. To come over and clean the floor. When he was coming over, he said to the girl, 'What's happened here?' and she said to him-- ... Q. Yes? A. She said to him - he had asked her, 'What's happened here?' and she said to him, 'It's what we opened before for the lady with the pram.' Q. What happened then? A. Then he continued to clean up around me." 27In her cross-examination, the respondent made it clear that only one female employee spoke to her and it was that person who said the relevant words to Mr Bloxsome: "Q. Did more than one person, one female person in a Woolworths uniform, speak to you after your fall or not? A. No. There was one. Q. Did you recognise the person on the video? A. Yes. Q. As the person who spoke to you? A. Yes. Q. I suggest that person said nothing to you or anyone else about taking out, opening a bottle of liquid. A. I suggest you're wrong. Q. What did you actually hear? A. I heard [her] tell the other gentlemen, the man - Woolworths, when he come to get the paper towels, he said, 'What happened here?' And she said, 'It's what we opened before for the lady with the pram.' ... Q. ... could it have been that you heard something like, 'She opened it'? A. No. Q. You're certain it was 'we'? A. 'It's what we opened'. Q. I suggest that that lady said no such thing to you, did she? A. She didn't say it to me. Q. She didn't say it to anyone. A. She said it to the young boy, to the other worker, and he said, 'Oh,' and then continued wiping it up." (The "young boy" was Mr Bloxsome.) 28Mr Bloxsome, in his evidence in chief, said that he did not recall asking Ms Ashmore what had happened. Nor did he remember Ms Ashmore saying that someone had opened a bottle for the mother and little girl. He also said that he could not remember any similar discussion with the lady behind the service counter. 29The following exchange occurred in Mr Bloxsome's cross-examination: "Q. All right, I'm starting to play [the CCTV footage] at 40.47, and you are just about to come onto the scene with your paper bag. There you are, having just entered the top of the frame, are you not? A. Yes. Q. With your lunch, and you are just starting to appreciate now there has been an accident, aren't you? A. Yes. Q. And then, as you get a bit - sorry, I will just stop there for a second. You see that just before, at about 41 minutes, you pointed towards the lady with your right hand, didn't you? A. Yes. Q. At the same time you turned around to the lady who was serving behind the service counter? A. Yes. Q. And you said something to her, didn't you? A. Yes. Q. What did you say? A. I cannot remember. ... Q. Did you say to the lady behind the service counter, 'What's happened here?' A. I don't know. I could have said anything. Q. Do you remember the lady behind the service counter talking to you after you initiated the conversation with her? A. I cannot remember if she did or didn't. Q. Can you remember whether she said words like this, 'It's what we opened for the lady with the pram'? A. No, I can't remember that. HIS HONOUR Q. Just so I understand exactly what [your] definition is, are you saying those words were definitely not used or are you simply saying they could have been, but I don't remember it? A. Yeah, they could have been, but I don't remember." 30Ms Ashmore denied saying to Mr Bloxsome anything like "[i]t was the bottle we opened for the lady with a pram." 31The respondent's written submissions to the primary Judge contended that the evidence permitted his Honour to find that the person who said the relevant words was probably Ms Williams. The respondent's counsel at the trial conceded that she had been mistaken about Ms Ashmore having been behind the service counter. He submitted, however, that all that the respondent meant was that the admission was made to Mr Bloxsome by the person behind the service counter soon after Mr Bloxsome's arrival. The respondent's counsel contended that her version was that: "the relevant conversation took place between Mr Bloxsome and the [Woolworths] employee behind the service counter". 32The difficulty with his Honour's finding is that the respondent's evidence was that she overheard the admission in a conversation that took place between Mr Bloxsome and the female Woolworths employee who approached the respondent a little time after she fell. The respondent never suggested in her evidence that the admission was made some time earlier (that is, as soon as Mr Bloxsome arrived on the scene), in response to a question directed by Mr Bloxsome to an employee stationed behind the Woolworths service counter. Contrary to the submission made on the respondent's behalf to the primary Judge, it was simply not her evidence that the admission was made by an employee who neither approached the respondent nor exchanged words with her. The possibility that she was mistaken as to which employee made the admission was never put to her. 33The difficulty is not merely that the respondent may have been mistaken as to the identity of the female employee who spoke to her and who made the admission. The primary Judge's finding does not accord with the respondent's evidence as to the circumstances in which the words were spoken. Moreover, the respondent's version was denied by Ms Ashmore, the Woolworths employee who did speak to the respondent, and the primary Judge cast no doubt on Ms Ashmore's denial. 34Mr Barry QC, who appeared for the respondent on the appeal, supported the primary Judge's finding that Ms Williams made the admission on the ground that it was credit based and thus could be overturned only in the limited circumstances identified in cases such as Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Fox v Percy [2003] HCA 22; 214 CLR 118. It is true that the respondent was accepted as a witness of truth and that the primary Judge had the advantage of observing her give evidence. It is not open to Woolworths to contend in this Court (and it does not contend) that the respondent did not believe that the admission was made. But accepting the respondent as a witness worthy of credit does not justify a factual finding that is not in accord with her evidence and is not supported by the evidence of any other witness. 35The principle of Jones v Dunkel [1959] HCA 8; 101 CLR 298, does not assist the respondent. She did not suggest in her evidence that the admission was made by Ms Williams (that is, by the female employee stationed at the service counter). Mr Bloxsome accepted that the relevant words could have been spoken by Ms Williams, but said that he had no recollection of them. In the absence of affirmative evidence that Ms Williams made the admission, the failure of Woolworths to call her does not justify an inference that her evidence would not have assisted Woolworths on this issue. The rule in Jones v Dunkel only applies where a party is required to explain or contradict something: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 at [51] (Gleeson CJ and McHugh J). In any event, the rule does not permit an inference that the evidence would have been adverse to the party. It only permits an inference that the evidence would not have assisted that party: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [64] (Heydon, Crennan and Bell JJ). 36I should add that no reference was made to the employee behind the service counter in the brief opening of the respondent's case at the trial. It was not suggested at that point that the admission was made by a female employee standing at the service counter. The first mention of Ms Williams in the proceedings was in the cross-examination of Ms Carra, a cashier employed by Woolworths, who may have been the employee who served the little girl's parents at the checkout counter (the evidence is not definitive on that point). She had little recollection of the relevant events, but said that she was "pretty sure" that the person shown in the CCTV footage behind the service counter was Ms Williams. (Ms Carra also said that never in her career had she opened a bottle of liquid for a customer, but nothing was made of that evidence on the appeal.) 37For these reasons, the finding that Ms Williams made the admission to Mr Bloxsome cannot stand. Mr Sexton SC, who appeared for Woolworths accepted that the consequence, if this was the only challenge that succeeded, would be an order for a new trial. However, if either of Woolworths' other challenges succeed, the result will be a judgment for Woolworths. It is to these challenges that I now turn. Duty of Care 38The respondent's Further Amended Statement of Claim (FASC) did not identify with any precision the duty of care said to be owed by Woolworths to the respondent. The FASC alleged that Woolworths was the occupier and had the care, control and management of the supermarket in the Centre. It further alleged (para 3a) that: "At all material times [Woolworths] was responsible for the actions of their customers to the extent that those actions posed a significant risk of harm to the customers of the ... supermarket or the public at large." In para 4 of the FASC, the respondent in substance repeated the language of s 5B(1) of the CL Act, and adopted some of the language in s 5B(2) of the CL Act. 39The FASC incorporated no less than 32 particulars of Woolworths' negligence, many of which played no part in the trial. The particulars included allegations that a Woolworths employee had opened a container of soapy liquid for a child aged about five years, the employee provided the child with the container so that she could blow bubbles and the employee allowed the child to use the liquid to blow bubbles in the passageway adjoining the supermarket. 40The primary Judge recorded but did not resolve Woolworths' submission that para 3a of the FASC did not plead a duty known to the law. Later his Honour recorded a separate submission by Woolworths that, even if an employee had opened the bottle of soapy water, the conduct could not amount to a breach of duty. His Honour disagreed: "If it is possible to conclude on the balance of probabilities that a Woolworths employee opened the liquid in question for the little girl within the store, perhaps at the checkout, it ought to have been foreseeable to the person opening the liquid that it may immediately be used by the little girl to blow bubbles, and be spilled on the ground outside the checkout, perhaps in very close proximity to it, as in fact I am satisfied occurred. It ought to have been foreseeable to such an employee that a member of the public might walk past and slip and injure themselves in consequence of the presence of the liquid on the floor of the passageway immediately proximate to the checkout counter, as in fact occurred to the plaintiff. A sensible and eminently practicable precaution would have been to refuse to open the liquid and to indicate to the little girl's parents that it should not be opened until they at least got outside the store. This did not occur." 41Later in the judgment his Honour found that it was more likely than not that the container of soapy water had been purchased at Woolworths rather than beforehand. His Honour then said that it did not matter whether the container: "was purchased at Woolworths or not, of course, because the question is not whether Woolworths were in some way negligent in selling the object to the little girl's mother, but whether an employee of Woolworths was negligent in opening the object, in circumstances where, in the view I take, it should have been foreseen by them that a spillage would occur if the object were opened immediately before the mother and the little girl left the store with the object in the hands of the little girl." 42The primary Judge identified a second basis upon which Woolworths was said to be liable, namely the failure of its employee to observe whether the child spilled any of the contents of the container "in immediate proximity to the checkout". This, however, in his Honour's view was not a separate and distinct basis of liability: "because it depends on the casual act of negligence of a person in the employ of Woolworths in opening the container of soapy water in the first place." 43The primary Judge, having already found Woolworths to be negligent, proceeded to identify the duty of care owed by Woolworths to the respondent. His Honour accepted that Woolworths had no legal right to control the passageway outside its supermarket: "The situation is rather that the defendant quite obviously had the right to have its customers pass over the area in question as they entered and left its supermarket. Nevertheless, that seems to me to import a general law duty to take reasonable care for the safety of persons entering and leaving its supermarket, and indeed walking along the passageway, as the plaintiff was, if a danger to them was known which could be obviated by the exercise of reasonable care." 44The primary Judge's formulation of the duty of care owed by Woolworths does not correspond to the pleadings, although that is not a fatal defect. More importantly, his Honour seems to have found a duty in these terms because it was foreseeable by Woolworths that if the bottle of soapy liquid was opened by an employee, the little girl might blow bubbles which would lead to a spillage on the floor near the Woolworths store and cause injury to a person using the passageway. His Honour also appears to have taken into account that the Woolworths employee serving the parents could have avoided the injury to the respondent by refusing to open the bottle and indicating to the parents (or possibly the child) that it should not be opened until at least they had left the supermarket. 45Four points should be made at the outset. The first is that, as Hayne J said in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [100], "[f]oresight of harm is not sufficient to show that a duty of care exists". Reasonable foreseeability of the class of injury sustained by the plaintiff is an essential condition of a legal obligation to take care for the benefit of another: Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [45] (per curiam). But the fact that the risk of harm suffered by the plaintiff was foreseeable, in the sense that it was real and not far-fetched, is not sufficient to impose a duty on another person to take reasonable care to prevent the harm occurring: Modbury at [35] (Gleeson CJ). 46Secondly, the requirement of reasonable foreseeability involves more than determining whether the risk of harm was a realistic possibility. As was said in Sydney Water Corporation v Turano at [45], the requirement must be understood and applied: "with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated." If it were otherwise, the law would impose on persons "an intolerable burden of potential liability, and constrain their freedom of action in a gross manner": Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [42] (per curiam). 47Thirdly, as has often been pointed out, there is no difficulty in deciding that a duty of care exists in familiar relationships such as those between road users or between employee and employer. The difficulty arises in new situations or in circumstances which take the duty of care outside the usual characteristics of the particular relationship, as in Modbury and Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 (both cases involving occupiers). In novel situations or circumstances, there is no single touchstone that determines whether a duty of care should be imposed. 48In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649, Allsop P stated (at [102]) that if a posited duty is a novel one: "the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury." His Honour's non-exhaustive list of "salient features" includes the degree and nature of control able to be exercised by the defendant to prevent harm; the nature or degree of the hazard or danger liable to be caused by the defendant's conduct; any potential indeterminacy of liability; and the nature and consequence of any action that can be taken to avoid the harm to the plaintiff. 49Fourthly, in Lesandu Blacktown v Gonzalez, Basten JA pointed out (at [15]-[16]) that there is a course to be steered between focussing too closely on the particular events which led to the plaintiff's injury and analysing the question of a duty of care without regard to the harm suffered and the alleged breach of duty: see also Modbury at [104]-[105] (Hayne J). The question may not be whether a defendant, in this case the occupier of a supermarket, can ever owe a duty of care to prevent harm to a person who is not on the supermarket premises, but the extent of any duty that might be owed to such a person: Modbury at [102] (Hayne J). 50Mr Barry did not suggest an alternative formulation of the duty of care identified by the primary Judge. Nor did he offer a justification for imposing that duty on Woolworths other than that it was foreseeable that a passer-by might be injured if a bottle of soapy water purchased from Woolworths and opened by its employee was used to blow bubbles outside the supermarket. The argument seemed to be that since the Woolworths employee could have prevented the child using the soapy water by refusing to open the bottle and/or warning the child and her parents not to blow bubbles in the passageway, Woolworths must be taken to have owed the respondent a duty of care. (I leave to one side whether these precautions, if taken, would have prevented the child blowing bubbles in the common area. Causation was not raised as a separate issue on the appeal.) 51The duty of care formulated by the primary Judge appears to impose an obligation on Woolworths as the occupier and operator of the supermarket to exercise reasonable care to obviate any foreseeable danger of which it (or its employees) is or should be aware, regardless of whether the danger might exist within the supermarket itself or in the nearby common area of the Centre. The duty is said to be owed even to a person who is not on the supermarket premises and, presumably, even if the person does not intend to enter the supermarket (although the respondent apparently intended to do so). Nor is the duty, as formulated by the primary Judge, confined to dangers emanating from activities conducted in the supermarket or goods sold by the supermarket. And it applies in relation to the acts of a third person over whom Woolworths has no control once that person leaves the supermarket. 52There is no basis in policy or principle for a duty of care of this breadth. It would presumably mean, for example, that if a Woolworths employee at the checkout counter observed a child eating an ice cream in the common passageway in a messy fashion, Woolworths would be obliged to exercise reasonable care to "obviate the danger" of the child dropping part of the ice cream on the floor and creating a hazard to passers-by. The duty of care would apparently exist even if the child eating the ice cream was in the company of his or her parents. 53It is difficult to see how Woolworths or any other store owner or occupier could be said, for example, to have assumed responsibility for the safety of passers-by in these circumstances. This is particularly the case if, as with shopping centres, the owner or manager is under a duty to take reasonable care to maintain common areas so as to minimise the risk of injury to shoppers. A duty of the kind suggested by the primary Judge would impose "an intolerable burden of potential liability": Sullivan v Moody at [42]. It would also impose extraordinarily onerous burdens on owners and occupiers of retail premises that go beyond "concern for the interests of others which it is reasonable to require as a matter of legal obligation": Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [8] (Gleeson CJ). 54Although Mr Barry did not suggest a different formulation of the duty of care owed by Woolworths to the respondent from that adopted by the primary Judge, the propounded duty perhaps could be framed more narrowly. A reformulated duty might be limited to a duty to take reasonable care to avoid foreseeable dangers to persons in the immediate vicinity of the Woolworths supermarket, where the dangers arise from the use by customers of products sold to them by Woolworths. But even a duty of care limited in this way encounters difficulties similar to those making it inappropriate to impose a duty of care in the terms identified by the primary Judge. 55Many stores, not merely supermarkets, sell products that are readily capable of being used (or misused) in a manner that creates a hazard to others in the immediate vicinity of the store. It is clearly foreseeable, for example, that a store selling takeaway food or drink may create a hazard to shoppers nearby if consumers spill drinks or drop food in a common area adjacent to the store. If every owner or occupier of a kiosk was under a duty to take reasonable care to obviate such hazards, for example by warning individual customers not to drop food or spill drinks, the burden would potentially be very great. Is the store owner or occupier of a kiosk to refuse a request to open a bottled drink because the customer might spill the drink? Should the owner or occupier refuse to unwrap a sandwich for a child because the child is quite likely to drop some of the contents on the floor? Why is the owner or occupier of a shop to be subjected to a duty to ensure that a child in the care of apparently responsible adults does not cause mischief with products lawfully sold by the shop? 56In the present case, Woolworths, as the occupier of the supermarket premises, was under a duty to take reasonable care to avoid hazards that might injure its customers while on its premises. The owner or occupier of the Centre was under a similar duty to persons using the common area of the Centre. Indeed the CCTV footage in the present case seems to show a security officer, presumably engaged by the occupier of the common area of the Centre, in the vicinity of the child when she is blowing bubbles. It is difficult to see why the operator of a supermarket should be subjected to a further duty to take reasonable care to prevent products it sells or simply opens for a customer being used by persons over whom it has no control, in a manner that creates hazards to persons in areas outside its direct control or sphere of responsibility. 57In my opinion, the primary Judge erred in concluding that Woolworths, in the circumstances of the present case, owed a duty of care to the respondent. The consequence is that Woolworths' appeal must be allowed. The judgment in favour of the respondent must be set aside and judgment entered for Woolworths. Breach of Duty 58Since I have concluded that Woolworths did not owe the respondent a duty of care that would support her claim, it is not necessary to consider whether, if Woolworths did owe such a duty, the primary Judge was correct to find that Woolworths breached its duty in failing to take precautions against the risk of harm that eventuated in this case. However, I shall briefly state why I think his Honour erred in making that finding. I do so on the assumption, contrary to the conclusion I have reached, that Woolworths owed the respondent the duty set out at [43] above. 59The primary Judge referred briefly to s 5B of the CL Act at the outset of his judgment but made no further reference to the section when determining that Woolworths breached the duty of care it owed to the respondent. Section 5B of the CL Act provides as follows: "General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 60The failure of a trial Judge to refer expressly to s 5B of the CL Act when dealing with the question of breach of duty is not always indicative of error. However, his Honour does not appear to have directed close attention to whether the statutory criteria for determining whether Woolworths had been negligent in failing to take precautions against the risk of harm which eventuated had been satisfied. It is true that his Honour said that it would have been a "sensible and eminently practicable precaution" for the checkout operator to refuse to open the bottle of soapy water and to indicate to the girl's parents that the bottle should not be opened "until at least they got out of the store". But his Honour does not seem to have considered whether a reasonable person in the position of Woolworths would have taken the precautions identified in the judgment having regard to the matters identified in s 5B(2). 61Woolworths' breach of duty was said to consist of the "casual act of negligence... in opening the container of soapy water", together with the checkout operator's failure to warn the parents or the child not to allow bubbles to be blown in the common area of the Centre near the supermarket. One difficulty is that the primary Judge made no findings as to the circumstances in which the checkout operator came to open the bottle. There are no findings, for example, as to whether the bottle was opened at the child's request or at the request of her parents. The primary Judge was prepared to infer however that the checkout operator gave no warning, but there was no evidence as to what communications passed between the operator and the parents of the child. 62In determining what precautions, if any, should have been taken by the checkout operator it is necessary to bear in mind that the child was in the care of her parents (or at least in the company of adults who appeared to be exercising parental control). Presumably, they were perfectly capable of opening the bottle of soapy water themselves if they wished to allow the child to blow bubbles. They were also, presumably, capable of supervising their child to the same extent as any other parents or guardians of a five year old child in a shopping centre. 63It is also necessary to bear in mind that the operations of a large shopping centre inevitably generate some hazards for people visiting the centre. That is why the law imposes a duty of care on the owner or occupier of common areas to take reasonable care to minimise the hazards. 64It is not a trivial step to conclude that a checkout operator at a supermarket must be alert to the danger that a product purchased in the supermarket might be used in common areas of the shopping centre (or perhaps elsewhere) so as to create a hazard. If a reasonable person in the position of the Woolworths checkout operator is to refuse a request to open a bottle of soapy liquid, what is the position if the operator observes the parents opening the bottle in the supermarket? Is the operator to intervene between the parents and this child because of the possibility that the parents may behave irresponsibly or without due attention to safety once they leave the supermarket? What kind of training would be required if operators were expected to identify possible hazards created by the use or misuse of products purchased in the store? What is the potential for awkwardness or even unpleasantness if operators have to give warnings to customers to ensure that they behave sensibly outside the supermarket itself? And why would a reasonable person limit the warning to the common area immediately outside the supermarket? None of these questions was explored at the trial. 65Had it been necessary to do so I would have set aside the primary Judge's finding that Woolworths was negligent by reason of the checkout operator's action in opening the bottle of soapy water and in failing to warn the parents of the child of the consequences of blowing bubbles in the nearby common area of the Centre. Conclusion 66The following orders should be made: 1.Appeal allowed. 2.Set aside Orders 1 and 2 made by the primary Judge on 25 July 2013. 3.In lieu of Orders 1 and 2 made by the primary Judge, make the following Orders: 1.Judgment for the defendant (Woolworths). 2.The plaintiff pay Woolworths' costs. 4.The respondent pay Woolworths' costs of the appeal. 5.Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). ********** Amendments 18 May 2015 - [1] Inclusion of word "an": "stepped on an area made slippery [5] After Civil Liability Act 2002 (NSW): "in Pt 1A Div 2," [8] "been" replaced by "be": "should only be opened when they had left ... [19] After quote, last line should read "It was this finding that was critical 'to' his Honour's conclusion ... DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2015