Supermarkets beware the (not so) obvious risk – ALDI Foods Pty Ltd v Young [2016] NSWCA 109
Originally Published by Heidi Nolan on Tuesday, May 24, 2016 12:00:00 AM
Author: Heidi Hopkins
Judgment Date: 13th May, 2016
Citation: ALDI Foods Pty Ltd v Young [2016] NSWCA 109
Jurisdiction: Supreme Court of New South Wales1
Principles
An occupier of a supermarket should allow for the possibility that customers will sometimes be inattentive or even negligent, measured against an expectation that they will exercise reasonable care for their own safety.
Whether a risk of injury was an obvious risk must be assessed objectively, including taking into account the position of the injured person.
Where a defendant alleges the plaintiff suffered from a pre-existing condition, the evidential onus remains on the defendant to discharge it. The court is required to evaluate possibilities in these situations, not proof on the balance of probabilities.2
Background
The plaintiff was shopping in a store owned by the defendant when she stepped or tripped over a pallet jack which was being used by an employee of the defendant to restock display boxes with strawberries. The pallet jack was situated in one of the cross-aisles of the store, blocking access to that aisle. The plaintiff fell to the ground and was injured.
The plaintiff brought proceedings in the District Court of New South Wales. The plaintiff said that although she saw the boxes of strawberries, she had not seen the pallet jack tines protruding from underneath the pallet jack close to the floor. She alleged that the defendant had breached its duty of care to her by placing the pallet jack in a position to obstruct the aisle, failing to warn her of the presence of the pallet jack and failing to place barricades between the pallet jack and customers.
The defendant denied a breach of duty of care, and also pleaded ss 5F, 5G and 5H of the Civil Liability Act 2002 (NSW) in relation to no duty to warn of an obvious risk. Contributory negligence was also pleaded.
The plaintiff and the defendant's employee gave conflicting versions of a conversation held shortly before the incident. The plaintiff alleged that she had been told by the employee to walk behind him, and thus directly into the path of the pallet. The employee said he had told the plaintiff that she would need to walk towards the back of the store and across another aisle because he was blocking the aisle. Both said that hand gestures were used by the employee as he spoke to the plaintiff to demonstrate where he was telling her to walk.
At first instance, Norton J found that the CCTV evidence did not reveal the hand gestures of the employee were consistent with either version of the conversation, but that in any event, what the employee allegedly said to the plaintiff was not a particular warning to her that it would be unsafe to walk past the pallet jack. Her Honour found that the prongs of the pallet jack represented a hidden danger and not an obvious risk, based on the plaintiff’s evidence that the prongs were close to the ground and she had not seen them. There was a 10% deduction made for contributory negligence on the basis that the plaintiff did not proceed with extreme caution.
As to damages, her Honour awarded the plaintiff 28% for non-economic loss, despite the plaintiff having had significant pre-existing injuries and a prior knee replacement surgery, for which she was still receiving treatment at the time of the incident. Her Honour awarded amounts for future treatment expenses in the sum of $50,000 as a 'cushion', notwithstanding that no claim for past out-of-pocket expenses was made (presumably due to an error by the plaintiff’s solicitors) and no proper particulars were supplied. She awarded a lump sum of $20,000 for future domestic assistance. The plaintiff received judgment in her favour in the amount of $135,000 after deduction of 10% for contributory negligence.
The defendant appealed the decision in relation to liability and quantum.
The plaintiff brought proceedings in the District Court of New South Wales. The plaintiff said that although she saw the boxes of strawberries, she had not seen the pallet jack tines protruding from underneath the pallet jack close to the floor. She alleged that the defendant had breached its duty of care to her by placing the pallet jack in a position to obstruct the aisle, failing to warn her of the presence of the pallet jack and failing to place barricades between the pallet jack and customers.
The defendant denied a breach of duty of care, and also pleaded ss 5F, 5G and 5H of the Civil Liability Act 2002 (NSW) in relation to no duty to warn of an obvious risk. Contributory negligence was also pleaded.
The plaintiff and the defendant's employee gave conflicting versions of a conversation held shortly before the incident. The plaintiff alleged that she had been told by the employee to walk behind him, and thus directly into the path of the pallet. The employee said he had told the plaintiff that she would need to walk towards the back of the store and across another aisle because he was blocking the aisle. Both said that hand gestures were used by the employee as he spoke to the plaintiff to demonstrate where he was telling her to walk.
At first instance, Norton J found that the CCTV evidence did not reveal the hand gestures of the employee were consistent with either version of the conversation, but that in any event, what the employee allegedly said to the plaintiff was not a particular warning to her that it would be unsafe to walk past the pallet jack. Her Honour found that the prongs of the pallet jack represented a hidden danger and not an obvious risk, based on the plaintiff’s evidence that the prongs were close to the ground and she had not seen them. There was a 10% deduction made for contributory negligence on the basis that the plaintiff did not proceed with extreme caution.
As to damages, her Honour awarded the plaintiff 28% for non-economic loss, despite the plaintiff having had significant pre-existing injuries and a prior knee replacement surgery, for which she was still receiving treatment at the time of the incident. Her Honour awarded amounts for future treatment expenses in the sum of $50,000 as a 'cushion', notwithstanding that no claim for past out-of-pocket expenses was made (presumably due to an error by the plaintiff’s solicitors) and no proper particulars were supplied. She awarded a lump sum of $20,000 for future domestic assistance. The plaintiff received judgment in her favour in the amount of $135,000 after deduction of 10% for contributory negligence.
The defendant appealed the decision in relation to liability and quantum.
Decision
In the New South Wales Court of Appeal (Court of Appeal), Meagher and Simpson JJA found that there had been a breach of duty of care by the defendant.
Simpson JA held that because the pallet jack blocked access to the aisle and the prongs of the pallet jack were low to the floor and not plainly visible, breach of duty of care was established. Her Honour did not accept that the plaintiff was aware of the presence of the pallet jack. Her Honour also upheld that only a 10% deduction for contributory negligence was appropriate as the plaintiff’s contribution to her injury was only minor and the plaintiff had no reason to anticipate danger.
Meagher JA found that the pallet jack could easily have been positioned where it did not obstruct access to the aisles of the store. His Honour indicated that in assessing a breach of duty of care, there is an interplay of considerations, including from an occupier’s perspective, whether it is reasonable to assume that a customer will take reasonable care for their own safety. His Honour stated that:
"In assessing what it should do for the safety of its customers, the [defendant] ought reasonably to have anticipated that customers would not always be attentive to their own safety or immediately conscious of what was going on around them."
His Honour found that a shopper would not necessarily notice the tines of a pallet jack close to the floor. The fact the plaintiff had not seen them and tripped on them established the negligence of the defendant.
Adamson J disagreed, finding that the appeal should be upheld. In regards to liability, her Honour found that the location of the pallet jack was not negligent, and the trial judge was unduly affected by hindsight. In her Honour's view, the exposed prongs of the pallet jack would have been obvious to a reasonable person in the position of the plaintiff. Her Honour referred to the decision of Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy3 which emphasised that the expectation that a plaintiff will exercise reasonable care for their own safety is a specific element contained in the scope of the duty of care. Her Honour said she could not accept that the plaintiff was not aware of the pallet jack, and she found that the incident occurred because the plaintiff was failing to exercise care for her own safety.
Adamson J also held the decision in relation to damages ought be reversed, stating that the finding of 28% for non-economic loss was manifestly excessive, finding instead that the plaintiff did not reach the 15% threshold. She held the award for future out-of-pocket expenses in error where there was no claim for past expenses. Adamson J, was however in the minority. In relation to quantum, both Meagher and Simpson JJA considered the amount awarded for non-economic loss and future treatment expenses was within the bounds available to the trial judge and should not be disturbed, although Simpson JA conceded the award was perhaps a generous one. They were in agreement with Adamson J that there was no evidence to indicate that the need for any future care was related to the incident, as opposed to being for pre-existing injuries, and the judgment was therefore reduced by $18,000 (after a deduction of 10% for contributory negligence).
In a 2:1 majority decision, the Court of Appeal dismissed the appeal, with the exception of damages for future care, where the appeal was upheld.
Simpson JA held that because the pallet jack blocked access to the aisle and the prongs of the pallet jack were low to the floor and not plainly visible, breach of duty of care was established. Her Honour did not accept that the plaintiff was aware of the presence of the pallet jack. Her Honour also upheld that only a 10% deduction for contributory negligence was appropriate as the plaintiff’s contribution to her injury was only minor and the plaintiff had no reason to anticipate danger.
Meagher JA found that the pallet jack could easily have been positioned where it did not obstruct access to the aisles of the store. His Honour indicated that in assessing a breach of duty of care, there is an interplay of considerations, including from an occupier’s perspective, whether it is reasonable to assume that a customer will take reasonable care for their own safety. His Honour stated that:
"In assessing what it should do for the safety of its customers, the [defendant] ought reasonably to have anticipated that customers would not always be attentive to their own safety or immediately conscious of what was going on around them."
His Honour found that a shopper would not necessarily notice the tines of a pallet jack close to the floor. The fact the plaintiff had not seen them and tripped on them established the negligence of the defendant.
Adamson J disagreed, finding that the appeal should be upheld. In regards to liability, her Honour found that the location of the pallet jack was not negligent, and the trial judge was unduly affected by hindsight. In her Honour's view, the exposed prongs of the pallet jack would have been obvious to a reasonable person in the position of the plaintiff. Her Honour referred to the decision of Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy3 which emphasised that the expectation that a plaintiff will exercise reasonable care for their own safety is a specific element contained in the scope of the duty of care. Her Honour said she could not accept that the plaintiff was not aware of the pallet jack, and she found that the incident occurred because the plaintiff was failing to exercise care for her own safety.
Adamson J also held the decision in relation to damages ought be reversed, stating that the finding of 28% for non-economic loss was manifestly excessive, finding instead that the plaintiff did not reach the 15% threshold. She held the award for future out-of-pocket expenses in error where there was no claim for past expenses. Adamson J, was however in the minority. In relation to quantum, both Meagher and Simpson JJA considered the amount awarded for non-economic loss and future treatment expenses was within the bounds available to the trial judge and should not be disturbed, although Simpson JA conceded the award was perhaps a generous one. They were in agreement with Adamson J that there was no evidence to indicate that the need for any future care was related to the incident, as opposed to being for pre-existing injuries, and the judgment was therefore reduced by $18,000 (after a deduction of 10% for contributory negligence).
In a 2:1 majority decision, the Court of Appeal dismissed the appeal, with the exception of damages for future care, where the appeal was upheld.
Why this case is important
This case demonstrates that despite many cases in recent years emphasising that plaintiffs must exercise reasonable care for their safety, courts will still at times waiver from that principle depending on the facts. However judicial minds may differ on what constitutes an obvious risk and whether a plaintiff is exercising reasonable care for his or her own safety, as demonstrated by the dissenting judgment of Adamson J.
Where the issue of a plaintiff's pre-accident medical condition is raised in evidence, it is incumbent on a defendant to adduce evidence to disentangle the effects of the subject accident from the plaintiff's pre-existing condition.
Where the issue of a plaintiff's pre-accident medical condition is raised in evidence, it is incumbent on a defendant to adduce evidence to disentangle the effects of the subject accident from the plaintiff's pre-existing condition.
- Meagher and Simpson JJA, Adamson J.
- Malec v JC Hutton Pty Ltd [1990] HCA 20.
- [2015] NSWCA 253.