Spot the stray mango - cleaning regimes in the spotlight

date
08 July 2024

The NSW Court of Appeal considered the reasonableness of a system of cleaning and inspection in the context of a supermarket customer’s slip on dropped fruit. The Cout of Appeal upheld the primary judge’s findings, and the Appeal was dismissed with costs.

The background

Ms Gomez, the plaintiff, commenced proceedings in the District Court of NSW against Woolworths Group Limited (the defendant), for damages associated with a personal injury she suffered when she allegedly slipped and fell on a piece of fruit in the defendant’s supermarket (Incident) on 31 May 20211.

It was agreed by the parties that the piece of fruit was dropped by a customer at around 5:02pm and the Incident then occurred at approximately 5:11pm. As at 31 May 2021, Woolworths had three different cleaning and inspection systems in place at the relevant store. The Assistant Store Manager, Mr Cheong, gave evidence that these systems were (i) the 'sweep log' three times a day, (ii) the 'clean as you go' system, and (iii) the 'service zero'. The Customer Service Team Manager inspected the front of store area at 4.05pm and found it to be 'clean and clear' before leaving the store. There was no evidence that a 'service zero' announced inspection occurred either at 4pm or 5pm or between 4:05pm and the time of the plaintiff’s accident at 5:11pm. The video evidence negated there being an inspection at around 5pm. Otherwise, no staff member at Woolworths saw the piece of mango, whether as originally dropped or as smeared before the plaintiff slipped on it.

The decision at trial

At first instance, his Honour, Judge Dicker, found in favour of the defendant and dismissed the plaintiff’s claim on the basis that while the defendant had breached its duty of care in respect of a failure to ensure the ‘zero hour’ cleaning system was enforced and that there was additional inspection of the front of the store area, on the facts of the case a more regular system of inspection (such as every quarter hour) would not have resulted in the hazard being identified and removed prior to the Incident. His Honour also found that there was no requirement for the off-duty staff members to identify and clean the hazard. Thus, the plaintiff failed to meet the requirements under sections 5D and 5E of the Civil Liability Act 2002 (NSW) (CLA).

The issues on appeal

Ms Gomez appealed the primary judge’s decision.

The key issues on appeal were:

  • whether the primary judge ought to have found additional breaches of duty owed by the defendant under the 'clean as you go' system, relevantly, the failure of two employees to identify and remove the fruit on the floor of the front of store area between 5:02 pm and 5:11 pm; and
  • whether the primary judge erred in failing to find that the breaches of duty, as found by his Honour, and the additional pleaded breaches, were causative of Ms Gomez’s injuries.

The decision on appeal

The Appeal was heard by Bell CJ, Gleeson A and Adamson JA.

Their Honours dismissed Ms Gomez’s appeal and upheld the primary judge’s findings.

In respect of a breach of duty of care, pursuant to section 5C of the CLA their Honours found that:

  1. The primary judge did not err in failing to find that two Woolworths employees should have inspected the front of store area as part of the 'clean as you go' system; and
  2. There was no error by the primary judge in failing to find that the employee responsible for the coffee-counter area should have inspected the front of store area pursuant to either the 'clean as you go' system or the 'service zero inspection'.
  3. there was no requirement for constant inspection (and none was pleaded by Ms Gomez), nor more frequent inspection than the clean as you go system, since the front of store area, although busy, was not an area such as a food court or an area where liquids or produce, including grapes and other pieces of fruit, was stored or available for inspection, and the expert witness agreed that hourly 'periodic cleaning inspection was a sufficient precaution'.

Regarding the issues of causation, pursuant to sections 5D and 5E of the CLA, their Honours agreed with the primary judge and held that Woolworths’ breach of duty in not complying with the 'service zero' system was not causative of Ms Gomez’s injuries. Even if Woolworths had complied with that system of inspection and cleaning, by conducting a 'service zero' inspection at 5:00 pm on 31 May 2021, Ms Gomez would still have slipped and fallen given the timing of the fruit being dropped.

In reaching the above findings, the court relied on the available evidence, particularly CCTV footage and the interpretation of the footage by the primary judge. His Honour Judge Gleeson, who wrote the primary judgment, affirmed the courts’ previous warnings regarding caution to be exercised when interpreting CCTV footage. In considering the footage, his Honour agreed with the primary judge’s interpretations and conclusions reached regarding the employees’ actions.

Implications for you

The decision in the Court of Appeal once again highlights the importance of enforcing appropriate cleaning regimes for specific areas of supermarkets and shopping centres. Specifically:

  • High traffic flow areas near zones where fresh produce/liquid items are more likely to be dropped/spilled retain the requirement for 15-20min cleaning rotations, while 1-hour rotations and ‘clean as you go’ approaches in other areas are reasonable.
  • Video or written evidence of the cleaning regimes/inspections is required.
  • The requirement to adhere to cleaning regimes only applies to staff during their work hours.

Gomez v Woolworths Group Limited [2024] NSWCA 121


1 Link to previous case note - https://bnlaw.com.au/knowledge-hub/insights/keeping-an-eye-out-off-the-clock/

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