Plaintiff’s grape expectations go unfulfilled

07 April 2022

A major supermarket operator has successfully defended a negligence claim from a plaintiff who slipped on a grape.

In Issue

  • Whether Coles took reasonable precautions by implementing a relatively informal 'clean as you go' system to address slip and trip hazards in its supermarket.

The background

Ms Buljat was injured after stepping and then slipping on a green grape in the meat section of Coles’ supermarket. She commenced a proceeding against Coles alleging that it was negligent and had caused her to suffer injuries including deep vein thrombosis, chronic pain syndrome and a psychological condition.

The decision at trial

Coles admitted that it owed a duty of care to Ms Buljat. It also conceded that the risk of a person slipping on a grape was foreseeable and not insignificant. Therefore, the key issue for the trial judge, Balla AJ, to decide was whether Coles breached its duty. In that regard, the Court focused on whether Coles had implemented an adequate system of inspecting and cleaning its floors to identify and remove hazards such as grapes.

The evidence from two Coles employees was that cleaners did not inspect and clean the supermarket floor during trading hours. Rather, Coles had a 'clean as you go' system (the system) whereby employees were trained to keep a lookout for hazards such as spills and loose grapes, and to take remedial action.

Ms Buljat’s counsel made several criticisms of the system. The first was that it was contrary to the High Court’s decision in Strong v Woolworths Ltd [2012] HCA 5, which, according to Ms Buljat, required Coles to complete documented periodic inspections. However, Balla AJ considered that it was not negligent merely to use a different system.

The second criticism was that there was no evidence that staff had complied with the system. However, Balla AJ observed that Ms Buljat bore the onus of proof on this issue. There was no evidence that Coles’ employees had not complied with their training. Moreover, there was no additional evidence (such as diagrams or photographs of the incident scene) which indicated that staff should have reasonably noticed the grape on the floor.

Finally, Balla AJ observed that just because Coles’ staff failed to notice the grape on a busy supermarket floor did not mean they had failed to keep a proper lookout.

In the circumstances, Balla AJ gave judgment in favour of Coles as it did not breach its duty.

Implications for you

As we have previously observed, retailers are not required to implement absolutely perfect systems of inspecting and cleaning their floors to avoid liability for 'slip and fall' incidents. The Strong case, which is often relied on in 'cleaning' claims, does not require all businesses to implement a painstaking documented periodical cleaning system. There is scope for a more informal system, such as 'clean as you go', to be acceptable. However, we suggest that all workers need to be trained in the system, and they must be required to watch for hazards while they perform their duties.

Update 16 January 2023: On 16 December 2022, the ACT Court of Appeal overturned this decision, finding that a 'clean as you go' system of inspection with no dedicated staff member assigned to look for hazards, and no timed inspections was insufficient to amount to reasonable care, with the result that breach of duty of care was established and the appeal was allowed. This decision indicates that caution is now indicated if informal cleaning systems are adopted.

Buljat v Coles Supermarkets Australia Pty Ltd [2022] ACTSC 47

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