Recently the High Court has had to decide when it was likely that a person might eat hot chips. Seriously.
In Strong v Woolworths  HCA 5, the unfortunate plaintiff slipped and fell on a hot chip which had been left on the ground outside Big W at Centro Taree Shopping Centre. She suffered serious spinal injuries as a result. Prior to suffering the injuries, the plaintiff had already had her right leg amputated above the knee and she was on crutches when the accident occurred. Her crutch slipped on the chip (or on grease left by the chip) and this is how she fell.
The problem in these kinds of slipping cases is establishing causation. Woolworths’ negligence lay in an omission; that is, a failure to inspect and clean the area outside its store. Causation is always a difficulty: if Woolworths had inspected the area and cleaned outside its store, would the accident have still happened? The parties agreed that a reasonable inspection period was every 15 to 20 minutes. The plaintiff sued Woolworths, alleging that that it owed a duty to take reasonable care for the safety of persons coming into the area near the entrance to its Big W shop. At the time of the accident, Woolworths did not have any system in place for periodic inspection and cleaning of the area outside Big W. It had not inspected the floor outside the shop between 8am and 12:30pm when the accident occurred. The question is whether, ‘but for’ the defendant’s failure to act, the plaintiff’s injury would still have occurred. Thus, in this case, one of the operative questions was whether the accident would have occurred had there been a system according to which Woolworths had inspected the floor fifteen minutes prior to the injury.
The trial judge held that Woolworths was liable, and awarded Mrs Strong $580,299.12. CPT, the second defendant and owner of the centre, was not liable, as it was not responsible for the cleaning of that area.
Woolworths appealed to the NSW Court of Appeal. The Court of Appeal held that the appellant had failed to prove that Woolworths’ negligence was a cause of her injury. It found that there was no basis for concluding that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. There was no evidence supporting an inference that the chip had been there for some time (ie, the chip was dirty or cold to touch). The Court of Appeal decided that the injury would have occurred even if Woolworths had had dedicated cleaning of the entrance area at 15 minute intervals as the chip had probably been dropped by a nearby person eating lunch.
A majority of the High Court (French CJ, Gummow, Crennan and Bell JJ) found that Woolworths should be held to be liable. In the course of their judgment, they had to consider when it is reasonable to expect a chip to be eaten (and therefore, when it is reasonable to hire a cleaner to pick up dropped chips). They said at :
If one reckons lunchtime as between 12.00pm and 2.00pm, it is right to say that the probabilities are evenly balanced as to the deposit of the chip between 12.00pm and 12.15pm and 12.15pm and 12.30pm, provided the chip was acquired for consumption at lunch. The Court of Appeal said that there was no basis for concluding that it was more likely than not that the chip was not dropped “comparatively soon before the [appellant] slipped”. It did not explain how it reasoned as to the likelihood that the chip was acquired at lunchtime. There was no basis for concluding that chips are more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning. The inference was open that the chip was not present on the floor of the sidewalk sales area at the time the area was set up for the day’s trading. However, the conclusion that the chip had been deposited at a particular time rather than any other time on the day of the incident was speculation. (my emphasis added)
Thus, the majority found that Mrs Strong would not have fallen but for Woolworths’ failure to have a regular inspection and cleaning regime. Woolworths could not argue that it was more likely that the chip had fallen recently and would not have been picked up by the inspection and cleaning regime because the accident occurred around lunchtime, and people were likely to eat chips at any time of the day, including for breakfast or as a snack. (I must say that the thought of potato chips for breakfast nauseates me).
Heydon J dissented. His Honour discussed the evidential burden, concluding that the plaintiff bore the burden of proving that the system of inspection would have prevented her accident, and accordingly she had to prove that the chip had fallen before 12:15pm (the notional time when an inspection should have taken place). She had failed to prove this, and thus her case failed.
In more High Court news, a restitution case has been handed down today (Equuscorp Pty Ltd v Haxton  HCA 7). I’m sure I will have something to say about that in due course.