The rogue grape

Second only, in infamy, to the McDonalds patron who burnt themselves with hot coffee, is the classic case of a supermarket shopper slipping on a miscreant grape.

That is precisely what occurred in the case of Buljat, where the Plaintiff sued Coles Supermarkets Australia Pty Ltd after slipping on a grape at their store in Woden, ACT on 23 September 2017.

Cleaning rotations: a relic of the past

The Plaintiff’s primary allegation was that her injuries were caused by the defendant’s negligence in failing to implement a reasonable system of periodic cleaning.

The Plaintiff contended the Defendant’s cleaning system was inadequate as it failed to satisfy the requirement for periodic rotations discussed in Strong v Woolworths [2012] HCA 5. In Buljat, the supermarket had been open for six hours and thirty-two minutes at the time of the Plaintiff’s fall and no co-ordinated cleaning circuits had been performed in that time.

The defendant had, however, implemented a formal ‘Clean As You Go’ system, requiring employees to actively look for hazards whilst performing their usual duties, rather than performing circuits at pre-determined intervals.

Balla AJ found the ‘Clean As You Go’ system, was adequate to address the risk in place of a documented system of regular inspections.

The Plaintiff’s evidentiary deficiencies

Balla AJ found there was no evidence as to precisely where the grape was or where the Plaintiff fell. The Plaintiff’s description of the grape being ‘near the meat department between aisles one and two’, through which staff passed through in the mornings to stock shelves and enter the break room, was inadequate to establish that the grape would have been observed if staff had been keeping a more careful look out. Balla AJ referred to Woolworths v McQuillan [2017] NSWCA 202 where Woolworths was found not liable for the casual failure to observe a single grape on the floor behind a banana stand when passing by, because ‘keeping a proper lookout [did] not mean a perfect lookout’ [35].

The Plaintiff failed to prove that the Clean As You Go System was inadequate or that more stringent inspections would have identified the presence of the grape. Calling two employees of the supermarket in question, who gave evidence that they had complied with Clean As You Go policy, did not assist her cause.

The onus of proof and personal responsibility

It is heartening to see the ACT courts reinforcing the need for plaintiffs to provide evidence of negligence and causation. Inference is not enough, and the lack of evidence brought by the Plaintiff was fatal to her case.

Balla AJ also confirmed what is often overlooked by plaintiffs – that a defendant need only take ‘reasonable’ measures to guard against a risk. As long as a defendant has a consistent system, that is implemented reasonably (not perfectly), they will have discharged their duty of care to the plaintiff.

20 years on since the inception of the Civil Law (Wrongs) Act 2002 (ACT), this decision heralds a return to the concept of personal responsibility for ones own safety and that not every accident arises from negligence.

This article was written by Sarah McJannett, Partner and Amelia Frey, Paralegal.

Addendum (Published Friday, 17 October 2025)

After publication of this article, the plaintiff appealed Balla AJ’s decision to the ACT Supreme Court Court of Appeal (Buljat v Coles Supermarkets Australia Pty Ltd (No 2) [2023] ACTCA 12). After examining a plethora of decisions on a supermarket’s duty of care and the ‘clean as you go’ system, the full bench unanimously determined that ‘while the onus remained on the [plaintiff appellant] to establish that there was a breach of duty, that conclusion is more easily reached when the evidence discloses apparent inadequacies in the system of a large national business…and a deliberate choice is made to lead no evidence from the organisation…which would support the reasonableness of its approach having regard to issues of costs and effectiveness’.

The Court of Appeal considered the absence of any evidence brought by the defendant that the ‘clean as you go’ system was effective where the area of the store in question was not frequently inspected by staff, there was no dedicated staff member looking out for spillages, and no time frame within which inspection must occur. Whilst not rejecting the reasonableness of the ‘clean as you go’ system, the Court nonetheless held the view that the defendant ought to have a system which specifically required inspection of the floor no less than every hour as a priority, rather than as an additional task added to staffs’ other duties.

The plaintiff appellant was ultimately awarded $27,309 being a modest amount higher than the primary judge calculated, had the plaintiff succeeded at first instance – the difference being that the plaintiff’s General Damages were increased slightly to account for a longer period of injury up until the plaintiff’s injuries were deemed to end, and she was diagnosed with a condition which was not causally related and not compensable.

One final point worth mentioning is that the defendant had made a compelling offer of compromise, also on Calderbank terms, of $120,000 plus costs part way through the primary proceedings. The defendant made no offers during the appeal proceedings. After submissions, the Court of Appeal ordered that the defendant pay the plaintiff’s costs of the primary proceedings up until the date of the offer of compromise and made no order as to costs thereafter up until the primary judgment. Assuming rule 1725(2)(b) of the Court Procedures Rules 2006 (ACT) was applied, the plaintiff would have recovered no professional fees and only 50% of her disbursements up until the date of the offer of compromise, as her damages fell well within the jurisdiction of the ACT Magistrates Court. The plaintiff appellant was, however, awarded her costs of the appeal against the defendant.

Take aways

The Buljat appeal highlights the challenge for defendants in determining whether to call defensive evidence at hearing. The plaintiff bears the onus of proving that the defendant fell below the standard of care, and where their evidence is inadequate to establish a breach there is no need for a defendant to call any evidence in reply. Buljat shows the need for defendants to be perpetually agile in litigation, particularly as the case evolves at hearing, and vigilantly reassess whether lay evidence is required from their policy makers or employees.

The decision should also encourage defendants to make any offer of compromise early in order to have the greatest prospects of effectively curtailing their opponents recoverable legal fees.