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.
