“The customer is always right?”

Key Points
  • Failure to warn case where risk was not obvious.
  • Court of appeal hesitant (again) to find in favour of an occupier of a supermarket in a occupier’s liability claim.
  • Highlights the importance of accuracy and pertinent details in Incident Reports.

Ms Young successfully sued Aldi in the District Court of NSW following an incident at an Aldi supermarket. Ms Young injured her knees and lower back after stumbling over the prongs of a pallet jack full of strawberries which was being unpacked by an Aldi employee. Aldi unsuccessfully argued that its employee made Ms Young aware of the pallet jack and therefore the pallet jack was an obvious risk. A finding of 10% contributory negligence was made. Aldi appealed.

The court of appeal found that although the Aldi employee made Ms Young aware of the presence of the pallet jack, the employee did not warn Ms Young about the protruding tines which were obscured from her view by the boxes sitting on the pallet jack. Further, the Court held that the protruding tines were not an obvious risk in the circumstances and Aldi was negligent in failing to warn her of their presence particularly as she was directed by the employee to walk past them.  The CCTV footage was considered by the majority to not assist either version of events.

In addition, the court noted that the Incident Report which included a notation by the employee, about the circumstances of the incident was held by the majority to lack sufficient detail when having regard to the conversation between the employee and Ms Young. Specifically, the employee’s entry was at odds with that of Ms Young, and his oral evidence did not sufficiently explain the lack of detail in the Incident Report compared to the version of events relied upon in Court. Aldi had sought to rely upon the Incident Report and the employee’s conversation with Ms Young in defending the failure to warn claim, however the incomplete entry in addition to the inconclusive CCTV footage resulted in the majority finding that the evidence did not entirely support Aldi’s account of what happened (and especially of the conversation) which was not noted or referred to in the Incident Report.

The majority also held that the prongs of the pallet jack represented a hidden danger and not an obvious risk. The dissenting appeal judge however, held that the exposed prongs would have been obvious to a reasonable person in the plaintiff’s position and that the incident occurred because the plaintiff failed to exercise care for her own safety.

The court of appeal maintained the finding of 10% for contributory negligence. The appeal on liability was dismissed but a reduction for future domestic assistance was allowed.

Similarly, to the recent shopping trolley case (Vincent v Woolworths [2016] NSWCA 40) the court of appeal adopted a more conservative view and was again hesitant to find in favour of the defendant in a supermarket occupier’s liability claim.

Occupiers of supermarkets need to remain extra vigilant in their daily in-store activities and must ensure OH&S practices are adhered to. In this case the Court of Appeal noted that the responsibility of the occupier must be tempered with the fact that customers will not always be attentive when it comes to their own safety and an ‘obvious risk’ may differ amongst different persons. The majority held “the [defendant] ought reasonably to have anticipated that customers would not always be attentive to their own safety or immediately conscious of what was going on around them.”

The case highlights that the court will have an expectation that a person will exercise reasonable care for their own safety. However, this must be measured with the responsibility of the occupier who should be aware that customers will not always be attentive when it comes to their own safety. Finally, the decision emphasizes the importance of making a thorough record of the incident in the Incident Report as this may in the future be critical evidence which can be relied upon in defending a claim.

Post by Hannah Glover and Freida Stylianou

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