An increasing number of advertisements have surfaced across some states in Australia for personal injury claims as a result of slip and fall incidents in supermarkets.
A recent ACT Court of Appeal decision may explain this development.
A look back
In 2022, the ACT Supreme Court ruled against a customer who sustained injuries after slipping in a supermarket in the matter Buljat v Coles Supermarkets Australia Pty Ltd [2022]. The facts of the case were that in 2017, the plaintiff had slipped on a loose grape as she was walking through the meat section. As a result, she fell and injured her leg. The proceedings were governed by the ACT’s Civil Law (Wrongs) Act 2002.
Whilst there were several allegations of negligence in the matter, the crucial question was whether the insured had an appropriate cleaning/inspection system implemented at the time of the incident. This is one of the key lines of enquiries we consider when undertaking these types of investigations.
In this instance the investigations into the incident found that during trading hours there was a ‘Clean as You Go’ system in place. Staff had been instructed and trained by the supermarket to keep a proper lookout for any hazards/spillages and to clean as they noticed them.
In a previous case, Woolworths Ltd v McQuillan [2017], the Court of Appeal found reasonable care had been taken by staff in that they were keeping a ‘proper’ lookout which did not translate to a requirement to keep a ‘perfect’ lookout.
The ACT Supreme Court held that, although there was no evidence to indicate the floor had been cleaned during a period of 6.5 hours, the fact that employees had been instructed to keep a proper look out and clean as they went was sufficient to defend the claim. It was also determined that the ‘Clean as You Go’ system was adequate in place of a documented inspection system.
The outcome
Fast forward to last year, the decision following the fruit incident at the supermarket in the matter of Buljat v Coles Supermarkets Australia Pty Ltd [2022], was appealed and in December 2022, the ACT Court of Appeal overturned the previous decision. It held that a reasonable person in the defendant’s position should have done more to prevent slipping hazards.
It determined that the supermarket should have had a system in place which specifically required staff to inspect, identify and eliminate hazards, and to have documented evidence of such a system. Another key takeaway from the case was the need to identify how often inspections take place. While in previous decisions the courts found that stores need to monitor and clean areas at a minimum of 20-minute intervals, after this case was appealed, hourly inspections were deemed reasonable.
Key takeaways for loss adjusters
Typically, when investigating similar matters, our team requests documentation as proof that there was a system in place. If there isn’t documentation, we can obtain a statement from employees working on the date of the incident This evidence helps verify whether or not the insured implemented periodic inspections and cleaning measures. Not only is it important to identify whether there is a system of inspection and routine cleaning but also at what intervals they take place. Perhaps more importantly if you’re adjusting a claim, it’s important to understand when the subject area was last inspected prior to the occurrence of the incident. It is imperative to obtain any documentation, including app record downloads of the systems that insureds have in place as evidence in demonstrating a discharge of their duty of care.
At Sedgwick, we have a team focused on the investigation of personal injury claims. To learn how our specialists can support your organization, email [email protected] or [email protected].
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