Woolworths Ltd v McQuillan [2017] NSWCA 202

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woolworths Ltd v McQuillan [2017] NSWCA 202 Hearing dates: 26 July 2017 Date of orders: 14 August 2017 Decision date: 14 August 2017 Before: Basten JA at [1] Gleeson JA at [2] Payne JA at [100] Decision: (1) Appeal allowed.

(2) Set aside the orders made by the District Court on 22 September 2016 and in lieu thereof order:

(a) Amended statement of claim dismissed; (b) Plaintiff to pay the first defendant's costs in the District Court.

(3) Respondent to pay the appellant's costs in this Court. Catchwords: TORTS – negligence – liability – respondent fell on a grape in appellant's supermarket – whether finding as to length of time grape was on the floor was supported by the evidence – whether appellant required to establish that its staff were present in the produce area after the supermarket opened - whether primary judge entitled to draw Jones v Dunkel inference against appellant – where primary judge found appellant's system of safety and inspection could not be improved – whether a casual act of negligence – whether appellant's staff failed to keep a proper lookout for hazards on the floor – where primary judge made no finding consistent with negligence by appellant. Legislation Cited: Civil Liability Act 2002 (NSW), s 5B(1)(a), (b), (c), 5D Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Jackson v McDonald's Australia Ltd [2014] NSWCA 162 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 Kuhl v Zurich Financial Services of Australia Ltd & Anor (2011) 243 CLR 361; [2011] HCA 11 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 Category: Principal judgment Parties: Woolworths Ltd (ABN 16 151 003 191) (Appellant) Colleen Mary McQuillan (Respondent) Representation: Counsel: Mr J.E. Sexton SC/Mr B Wilson (Appellant) Mr R Sheldon SC/Mr J Malouf (Respondent)