Citation: Guru v Coles Supermarkets Australia Pty Ltd [2016] NSWDC 349
Court: District Court of New South Wales
Date: 14 December 2016
Judge: Judge Levy SC
Background
The plaintiff was shopping at a Coles Supermarket in Cambridge Gardens, NSW, on the afternoon of 19 October 2012. While walking near the fruit and vegetable aisle, she stepped on a grape she had not seen on the floor, slipped, fell heavily, and sustained multiple soft tissue injuries to her limbs and torso.
The plaintiff brought proceedings against Coles as occupier of the premises, claiming damages in negligence. Coles denied liability and raised two defences: first, that the presence of a grape on the floor was an "obvious risk" within the meaning of the Civil Liability Act 2002 (CLA), which would have relieved Coles of any duty to warn; and second, that the plaintiff's own contributory negligence should reduce any award.
The plaintiff's original damages schedule claimed over $1.2 million. The court found that figure bore little relationship to the evidence and was significantly inflated, though this was attributed to the presentation of the claim rather than to the plaintiff herself, whose evidence was accepted as credible.
Legal Issues
- Whether a grape on the floor of a supermarket constituted an "obvious risk" under ss 5F and 5G of the CLA, relieving Coles of liability for failing to warn the plaintiff.
- Whether Coles owed the plaintiff a duty of care and breached it, assessed under ss 5B and 5C of the CLA.
- Whether any breach caused the plaintiff's losses under s 5D of the CLA.
- Whether the plaintiff was contributorily negligent under ss 5R and 5S of the CLA.
- The appropriate quantum of damages across each head of loss.
Decision
Obvious risk: The court rejected Coles's argument that a grape on a supermarket floor was an obvious risk within the meaning of ss 5F and 5G of the CLA. Because the risk was not obvious, the statutory defence to a failure to warn did not apply.
Negligence: The court found that Coles owed the plaintiff a duty of care as occupier of the premises and breached that duty. The court applied the requirements of ss 5B and 5C of the CLA and was satisfied that the risk of harm from produce falling or being dropped onto the floor near the fruit and vegetable area was foreseeable and not insignificant. Coles's cleaning and floor-checking procedures were insufficient to discharge its duty. Causation under s 5D was also established.
Contributory negligence: The court found no contributory negligence on the plaintiff's part. The grape was not visible to her, and there was nothing in her conduct that fell below the standard of a reasonable person in her position.
Damages: The court assessed damages conservatively across the claimed heads. Non-economic loss was assessed at $39,500. Future economic loss was allowed at $40,000, but past economic loss and loss of superannuation (past and future) were assessed at nil. Past domestic assistance was allowed at $7,280, while future domestic assistance was assessed at nil. Past and future out-of-pocket expenses were allowed in modest amounts. The total damages award was $90,130.45. The appropriate costs order was reserved for further argument given the plaintiff's significant failure on quantum.
Orders Made
- Verdict for the plaintiff in the assessed sum of $90,130.45.
- Exhibits may be returned.
- The parties to be heard on the appropriate costs order if they cannot agree.
- Liberty to apply on 7 days' notice if further or other orders are required.
Key Takeaways
- A grape on the floor near a supermarket fruit and vegetable aisle did not constitute an "obvious risk" under ss 5F and 5G of the CLA, meaning the occupier could not rely on that statutory defence to defeat a failure-to-warn claim.
- The District Court confirmed that a supermarket occupier's duty of care extends to maintaining adequate floor inspection and cleaning procedures in areas where produce commonly falls or is dropped.
- No contributory negligence was found where the plaintiff had no reasonable means of seeing the hazard before stepping on it.
- Under the CLA framework, damages are assessed strictly by reference to the evidence: an inflated damages schedule unsupported by evidence will be substantially discounted, regardless of who prepared it.
- Where a plaintiff succeeds on liability but fails significantly on many heads of damages, the court may decline to make the usual costs order in the plaintiff's favour without further consideration of the disparity between the claim and the outcome.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5F, 5G, 5H, 5R, 5S, 15, 16
- Evidence Act 1995 (NSW), s 60
Cases:
- Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
- Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330
- Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
- Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482
- Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- Medlin v State Government Insurance Commission (1995) 182 CLR 1
- Griffiths v Kerkemeyer (1977) HCA 45
- Graham v Baker (1961) 106 CLR 340
- Purkess v Crittenden (1965) 114 CLR 164
- Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
- Penrith City Council v Parks [2004] NSWCA 201
- Glen v Sullivan [2015] NSWCA 191
- Solomons v Pallier [2015] NSWCA 266
- Cupac v Cannone [2015] NSWCA 114
- Majkic v Bonnano [2008] NSWCA 253
- Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
- Manly Municipal Council v Skene [2002] NSWCA 385
- Larson v Commissioner of Police [2004] NSWCA 126