Citation: Fatma Abdel Razzak v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 183
Court: District Court of New South Wales
Date: 22 June 2017
Judge: Russell DCJ
Background
A supermarket customer slipped and fell in the fresh produce section of a Coles store in Hurstville at approximately 11:30am on 11 April 2015. The plaintiff alleged she slipped on grapes that had fallen to the floor while a staff member was unloading stock nearby. She fell forward onto her knees and elbows.
The plaintiff claimed injuries to her neck, lower back, right and left elbows, right hip, both knees, and right ankle. Many of these conditions were alleged to be aggravations of pre-existing problems. She had an extensive medical history, including a 1994 motor vehicle accident, degenerative spinal changes, chronic knee conditions, depression, and domestic violence injuries. She had been on a disability pension since 1999, and her youngest son had been her full-time carer even before the incident.
Coles admitted it occupied the supermarket and owed a duty of reasonable care to customers. The disputed questions were whether a breach of that duty occurred, and if so, what damages flowed from it.
Legal Issues
- Whether grapes were present on the floor at the relevant time and caused the plaintiff's fall
- Whether Coles breached its duty of care by failing to maintain an adequate system of inspection and cleaning
- Whether the "negligence" of Coles, if established, was causally linked to the plaintiff's claimed injuries
- What damages, if any, were attributable to the Coles incident as distinct from the plaintiff's extensive pre-existing conditions
- Whether contributory negligence applied
Decision
Breach established, but the claim ultimately failed
The court accepted that the plaintiff did slip on grapes on the floor, and that the presence of grapes near a produce-stacking area created a foreseeable risk of injury. Russell DCJ found that Coles had breached its duty of care by failing to maintain an adequate system of inspection and cleaning at the material time. The evidence showed no mat had been placed in the area where grapes were being unloaded, and the manager's own post-incident response (ordering a mat and clean-up immediately after the fall) was treated as relevant to what a reasonable system should have required.
Damages assessed but judgment entered for the defendant
Despite finding breach, the court assessed damages in full and ultimately entered judgment for the defendant. The plaintiff's damages were assessed at only $7,728.85, which fell below the relevant threshold under the Civil Liability Act 2002. As a result, the plaintiff did not meet the threshold required for an award in her favour, and judgment was entered for Coles.
Injuries and causation narrowly confined
The court accepted only limited injuries as causally attributable to the fall: knee injuries and a left elbow injury. Claims relating to the neck, back, and other conditions were not accepted as being caused or materially aggravated by the incident, given the extensive pre-existing pathology and the gap between the fall and when those complaints first appeared in the post-incident medical records. The court noted that the plaintiff had been broadly honest in giving evidence, but found her account of the extent of her injuries was not reliable.
Damages breakdown
Non-economic loss was assessed at 15% of a most extreme case, producing a monetary award of $6,000 under the table in section 16(3) of the Civil Liability Act. Past out-of-pocket expenses were limited to $978.85, being only those expenses the defendant conceded were attributable to the knee injuries. A further $750 was allowed for future analgesics and physiotherapy. Claims for past and future domestic assistance were not established on the evidence: the plaintiff's son was already her full-time carer before the incident, and no evidence supported a future commercial care need attributable to the Coles injuries.
Orders Made
- Judgment for the defendant
- The plaintiff to pay the defendant's costs
- Liberty to apply if any other costs orders are sought by the defendant
- Exhibits to be retained for 28 days
Key Takeaways
- The District Court found that a supermarket operator breached its duty of care by failing to have an adequate inspection and cleaning system in a produce area where stock was actively being unloaded, yet still entered judgment for the defendant because assessed damages fell below the statutory threshold under the Civil Liability Act 2002.
- Where a plaintiff has an extensive pre-existing medical history, courts will scrutinise closely which conditions were genuinely caused or aggravated by the incident in question, particularly when post-incident medical records show a delay before certain complaints appear.
- A defendant's own post-incident conduct, such as immediately placing a mat and cleaning the area after a fall, can inform the court's assessment of what a reasonable system of care would have required beforehand.
- Under the Civil Liability Act 2002, non-economic loss awards are governed by a statutory table once the threshold is reached; at 15% of a most extreme case, the monetary outcome was $6,000 under the section 16(3) table.
- Claims for future domestic assistance or commercial care require evidence that such care is needed as a result of the specific incident; the fact that a carer was already in place before the event undermined any such claim in this case.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 16(3)
Cases
- Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182
- Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234
- Jackson v McDonald's Australia Limited [2014] NSWCA 162
- Neindorf v Junkovic [2005] HCA 75
- Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479
- Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 334
- Adeels Palace Pty Limited v Mourbarak [2009] HCA 48; (2009) 239 CLR 420
- Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
- Vairy v Wyong Shire Council [2005] HCA 92; (2005) 223 CLR 422
- Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540
- Reid v Commercial Club (Albury) Limited [2004] NSWCA 98
- Wilkinson v Law Courts Limited [2001] NSWCA 196
- Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
- Jones v Dunkel [1959] HCA 8; 101 CLR 298
- Luxton v Vines [1952] HCA 19; 85 CLR 352
- Benmax v Austin Motor Co Limited [1955] AC 370
- Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
- Francis v Lewis [2003] NSWCA 152
- Kocis v SE Dickens Pty Limited [1998] 3 VR 408
- Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
- Shirt v Wyong Shire Council [1978] 1 NSWLR 631