Vincent v Woolworths Ltd [2016] NSWCA 40 relates to a claim brought by Ms Vincent (plaintiff) in respect to injuries sustained when she stepped backwards off a small safety step ladder in a Woolworths Supermarket and collided with a shopping trolley being pushed by a customer.
At first instance, the plaintiff brought a claim against Woolworths as the occupier of the premises and against her employer, Counterpoint, who employed her as a merchandiser to attend various supermarkets. Justice Campbell rejected the plaintiff’s claim and a judgment was entered in favour of the defendants.
The plaintiff’s appeal was heard before Justices Macfarlan, McCall and Ward. The Justices agreed as follows:
- In accordance with the Civil Liability Act 2002 (NSW), Woolworths owed visiting merchandisers a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of operations while they were performing their work; however as occupiers of the property, Woolworths were entitled to expect that merchandisers would exercise reasonable care for their own safety; and
- as the plaintiff did not prove that the risk of harm was not insignificant, a reasonable person in Woolworths’ position would not have taken precautions as suggested by the plaintiff (putting up a plastic barricade or providing a helper to keep customers from the merchandiser) in relation to such risk of harm.
- In relation to the employer’s duty of care, Counterpoint was required to take account of the possibility of inadvertence or thoughtlessness on the part of the plaintiff, however it was entitled to expect that she would exercise care in carrying out straight forward activities; and
- the plaintiff failed to take reasonable care for her own safety and was thus to a significant extent guilty of contributory negligence.
The appeal was dismissed with costs awarded against the plaintiff.
Significance
The findings of the Court of Appeal reaffirm the requirements of the Civil Liability Act with regard to the foreseeability of risk, significance of risk and the determination of duty of care with regard to taking reasonable precautions to alleviate risk of harm.
With regard to liability insurance the findings indicate that provision of a method of work, which is considered as common practice across the industry, is relevant to whether an occupier and/or employer would be found to have breached their duty of care.
In addition, although the appeal was dismissed, apportionment of liability between the occupier and employer was considered by the Court. Although the employer had a duty to appropriately train the plaintiff and this duty extended to premises which it did not control, Woolworths was held to have the greater capacity to control the activities occurring in its supermarket and in its assumption of responsibility for the provision of equipment to the plaintiff to perform her task. This finding provides that occupiers can be exposed to a greater liability than employers due to an ability to oversee work practices and in circumstances where they provide equipment.
Post by Hannah Glover and Freida Stylianou