Keeping an eye out off-the-clock

04 July 2023

The NSW District Court confirms that there is no duty for off-duty employees to maintain a system of inspection and cleaning.

In issue

  • There were a number of issues in dispute, including what were the reasonable precautions the defendant ought to have taken to address the risk of harm caused by items being dropped at the entry / exit of a supermarket, and whether, if there was a failure to take necessary precautions, such failure caused the injury suffered by the plaintiff.

The background

On 31 May 2021 at 5:11pm, the plaintiff sustained personal injuries when, after descending an escalator, she slipped on piece of fruit in the defendant’s supermarket. The CCTV at the store showed the fruit having fallen on the floor at 5:02pm when another customer left the store.

At 5:03pm, an employee of the store, who had concluded his shift, left the store. As he left, he stood near the fallen fruit, but did not clean it.

The defendant otherwise had three systems in place for inspection and cleaning, including relevantly, the 'service zero' system, which involved the term 'service zero' being called out over the public announcement system at every hour, which would prompt all staff members to stop what they were doing and look around to find any hazard. That system did not require staff members to move around from where they were standing in search of hazards. No records were kept of each call. Relevantly, the employee standing at the coffee counter, standing some 5 metres away, was responsible for inspecting the entry / exit area from his / her position.

There was no evidence that there was a 'service zero' call at 4pm or 5pm. The last time the area was inspected before the accident was at 4:05pm. The defendant’s Assistant Store Manager conceded in evidence that sometimes the 'service zero' call was missed or was 'a bit late'.

The decision at trial

There was no dispute that a duty was owed to the plaintiff. The real issues centred around breach and causation.

In coming to its findings on breach, the court made a number of findings on the systems in place. The Court rejected the defendant’s submission that 'service zero' was reasonably adequate in circumstances where a person was not obligated to move around their immediate area. The Court also said that, noting the busy use of the entry / exit area, the nearest employee (at the coffee counter) should have moved from the counter to directly inspect the area.

The court ultimately found there was a breach of duty because the defendant did not take steps to enforce and ensure that the 'service zero' system was implemented.

However, the court stopped short of finding breach on the basis that there was not a more regular inspection of the entry / exit area over and above what was done at the hour on the basis that whilst the front of store area, although busy, was not an area such as a food court. It was also not an area where liquids or produce including grapes and other pieces of fruit were stored or available for inspection

The court also rejected the plaintiff’s submission that breach was established when the off-duty staff member failed to clean the fruit, finding that there was no obligation on an employee to carry out his / her duties to inspect after they ceased their shift for the day.

Those findings did not ultimately assist the plaintiff because the court did not accept that she overcame the burden imposed on plaintiffs in proving causation.

The court concluded that the breaches of duty of care found did not cause the loss suffered by the plaintiff. If the relevant precautions had been taken, the plaintiff would still have slipped and suffered injuries because the 'service zero' inspection would have occurred at 5.00pm before the fruit was dropped and no other inspection should have occurred until 6.00pm.

Similarly, even if an additional system was in place to inspect the store entry at either 5pm, 5:15pm or 5:30pm, that would not have identified the fruit and avoided the accident at 5:11pm.

Implications for you

As we have previously observed, retailers are not required to implement perfect system of inspection and cleaning to avoid liability for ‘slip and fall’ incidents. There was some useful commentary however on the systems actually in place here. The decision also puts again in focus the importance of causation and that finding fault with a defendant’s acts / omissions is not the end of the road for a plaintiff in ultimately being awarded damages.

Gomez v Woolworths Group Limited [2023] NSWDC 221

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation