Slip and Fall Cases – Review of Strong v Woolworths

Slip and Falls – The Risk to Retailers

There has been a recent and significant case on liability for slipping injuries which with the help of LMI Group’s Corporate Counsel, Peter O’Brien, I thought I should share with you.  The case of intesest is Strong v Woolworths Limited [2012] HCA 5.

In this case, the High Court of Australia recently reconsidered the law on causation and slipping.

What should be of interest, to property owners and of special interest retailers and cleaning contractors, is that the High Court has endorsed the relatively modern trend of “burden shifting” and, effectively, placed an increased burden on certain retailers requiring of them to exercise a higher standard of care than in the past.

Some commentators have suggested that, following Strong case, which mirrors similar decisions in the United States, Australian law is moving closer to circumstances where retailers may be held “strictly liable” for injuries occurring on their premises.

This could have severe ramifications for retailers and the manner in which cases are currently assessed and resolved.

In view of this, we have set out the background and the court’s finding and some preliminary observations as to what steps may have to be taken in the future in order to avoid liability for slipping cases in the hope that it will be of benefit to readers and their clients.

Background

On 24 September 2004, Mrs Strong was inspecting pot plants on level 1 of the Centro Taree Shopping Centre outside a Big W shop operated BY to, to, lackBY to, her, Woolworths, the, it, to, a, to, lackt the plaintiff discharged its initial burden of proof regarding causation based on a
“probability” argument taking into account the time available for the chip to have been deposited and the fact that Woolworths did not have a formal cleaning regime in place, rather than by evidence as to the actual time when the chip was deposited.

Whilst there is an element of casuistry in the distinction between the two scenarios, the case has the effect of constituting a significant shift of onus in slipping cases and will have important implications for persons suffering personal injuries on retail premises.

Implications for Retailers

Whilst in the past it may have been sufficient to rely on such factors as lack of knowledge of the presence of an offending material or liquid, and the general vigilance the of aisle packing staff, tellers and management, with standing instructions to keep a look out for materials on the floor, this will no longer constitute sufficient evidence to rebut any initial onus discharged by a person slipping at premises owned by a retailer.

A regular and formal cleaning protocol, together with some sort of record of inspections (preferably written) may become essential if liability for slipping cases is to be avoided.

For example, it will probably be necessary to have a standing procedure at all stores that the aisles and any common areas outside the shop front be inspected at, say, 20 minute intervals by one or more employees specifically charged with carrying out this task, rather than relying on the watchful eye of ever present staff members.

 

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