Author: Lia Sparks   
Judgment Date: 14 August 2017
Citation: Woolworths Ltd v McQuillan [2017] NSWCA 202
Jurisdiction: New South Wales Court of Appeal
Principles
  • Occupiers have a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to people entering their premises. That duty includes an obligation to take precautions that a reasonable person would have taken to avoid those risks.
  • Where an occupier can establish that it had a system of inspection in place, the system of inspection only needs to be reasonable, not perfect.
  • A plaintiff always bears the onus of proof. It is not the responsibility of the defendant to perfect an evidentiary gap left by the plaintiff, and a negative inference cannot be drawn simply because the defendant decides not to call evidence.
Background

Ms McQuillan (the plaintiff) alleged that she sustained injury when she slipped and fell on a grape in the produce section of a Woolworths supermarket in Leichhardt, six minutes after the store opened for trading. The plaintiff commenced proceedings against Woolworths in the District Court of New South Wales, and obtained a judgment in her favour.

The primary judge, Maiden SC DCJ, found that the presence of the grape on the floor was more likely to be the result of Woolworths’ staff activities in preparing the store for trade prior to the opening time of 10:00 am, instead of the grape being dropped at or after the opening time, or having been missed by the night cleaners hours before the store opened. Notably, the primary judge found no evidence that Woolworths’ system of cleaning and inspection of the supermarket could be improved. Nonetheless, the primary judge found that there was a casual act of negligence in the system that was in place.

Woolworths appealed the decision.

Decision

The New South Wales Court of Appeal allowed Woolworths’ appeal.

Specifically, the Court of Appeal found:

  • The evidence did not support the primary judge’s factual finding that the grape was most likely to have been on the floor of the store prior to the store opening time. In the absence of any specific evidence about when the grape might have been dropped, there was no particular basis for finding that the grape had been dropped within any specific time period.
  • The evidence also did not support the primary judge’s factual finding that no Woolworths’ staff were present in the produce area at the time the store opened. The primary judge relied upon CCTV footage to make that finding, but the Court of Appeal observed that the CCTV footage did not cover the whole of the produce area. Further, the Court of Appeal accepted the acting manager’s unchallenged evidence that staff tended to stay within the areas to which they were assigned.
  • The primary judge’s finding that Woolworths’ system could not be improved was inconsistent with his finding of casual negligence on the part of Woolworths’ staff. The Court of Appeal accepted that Woolworths had a thorough system in place, and found that the system could not be expected to be perfect. Specifically, it opined that while staff had a responsibility to be vigilant for hazards on the floor, it was acceptable that a visual scan of the floor could be impeded by any number of things. Physical impediments and other distractions did not mean that the staff had not kept a proper lookout. Accordingly, there was no casual act of negligence by the employees in failing to notice a single grape on the floor in circumstances where there was evidence that staff were reasonably impeded from scoping the whole of the floor.
  • The Court of Appeal also affirmed the principles of Jones v Dunkel.² A negative inference could not be drawn simply because Woolworths chose not to call witness evidence from the produce employees as to the system of inspection in place on the day. The Court of Appeal affirmed that a Jones v Dunkel inference, that any evidence called would not assist that party’s case, should only be drawn where a party fails to call evidence to explain or refute evidence already presented in the proceedings. There is no obligation on a party, particularly a defendant, to fill in the gaps of another party’s evidence, and the onus of proof does not shift to the other party merely because the plaintiff failed to present evidence to establish his or her case.
Why this case is important

This case marks a significant turning point in judicial attitudes towards systems of inspection. The general attitude until now has been that, if something was missed in the course of an inspection, it followed that the entities responsible for inspection and cleaning were probably negligent. Following this decision, in circumstances where occupiers and service providers can establish there was a system of inspection in place and the system was carried out, this case may be relied upon to argue that the system need only be reasonable, and cannot be expected to be perfect. Accordingly, just because something may be missed does not automatically mean the entities responsible were negligent.

This case also affirms the principles of Jones v Dunkel. Those principles have been subject to a growing misconception that if a party chooses not to call evidence, there must be a negative inference that the evidence will not assist the party’s case. That is not strictly a correct application of the case. Jones v Dunkel, as this case demonstrates, should only be applied where parties choose not to call evidence to contradict or explain other evidence already put forward. It cannot be relied upon in circumstances where a gap in the evidence exists, or to reverse the onus of proof which a plaintiff bears to prove his, her or its case.

 

[1] Gleeson JA with Basten and Payne JJA.

[2] (1959) 101 CLR 298; [1959] HCA 8.

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