Woolworths claws back $150,000 grape payout

A SYDNEY woman who slipped on a grape at Woolworths is “devastated” after a court revoked her $151,000 compensation payout.

Woolworths has won its appeal. Picture: Dan Peled/AAP

A SYDNEY woman who won $151,000 in compensation from Woolworths after slipping on a grape has lost her case on appeal.

Colleen McQuillan successfully sued the supermarket last year over injuries she sustained from slipping on a grape — “colour unknown” — in the fruit and vegetable section at the Leichhardt store in November 2012, shortly after opening at 10am.

But the decision was reversed in the Court of Appeal, an outcome Ms McQuillan’s lawyers said was “a devastating result for our client who is a very genuine significantly injured person”.

In the original decision, the District Court found the presence of the grape on the floor near the banana stand was likely the result of activities of staff before the store opened, after the grapes were brought from the cool room to be placed on the display table.

The District Court rejected the possibility that the grape was missed by the overnight cleaners, that the grape was dropped by a customer after the store opened at 10am, or that the grape was lodged in a black safety mat on the floor next to the display table and was dislodged when the mat was moved by two Woolworths employees.

“His Honour found that if someone had been on duty in the produce section they would have identified the risk, based on the training given and the warning signs to be on the lookout for grapes on the floor,” the appeal judges wrote. “His Honour concluded that the grape constituted a slip hazard and was the cause of Ms McQuillan’s fall.”

Woolworths appealed the decision on the basis of two factual errors in the judge’s findings — namely that the grape was on the floor before the store opened, and that no one was on duty in the produce section between 10am and Ms McQuillan’s fall at 10.06am.

The supermarket denied it had breached its duty of care or that staff had failed to keep a proper lookout.

“Woolworths argues that his Honour failed to address the question of what ‘a proper lookout’ required in the circumstances, or whether such ‘a proper lookout’ would have resulted in a single grape being observed,” the appeal judges wrote.

“Woolworths contends that a finding that there is a single grape on the floor in the produce section of a supermarket is insufficient to establish want of reasonable care and thus breach of duty.”

The Court of Appeal found there was no evidence that staff “actually did something with the grapes on the specials display table between 9.30am and 10am”, describing the scenario as “really no more than speculation”.

It also found that visual inspection by floor staff could have been impeded by a number of matters, including physical objects such as trolleys and crates.

“In my view, there was no occasion for either of the Woolworths staff, exercising reasonable care, to scan the floor specifically near where Ms McQuillan later fell as they passed near that area,” the appeal judges wrote. “That they did not observe the grape on the floor was not a casual act of negligence.”

Lawyer Gerard Malouf blasted the appeal court’s decision, indicating that his firm was exploring the possibility of a further appeal. “We, like our client and her family, are devastated with this result as we feel justice has been denied,” Mr Malouf said in a statement to news.com.au.

“The Court of Appeal, when hearing the matter, were not receptive to the legal submissions made on behalf of Ms McQuillan.

“They basically said the two employees could have been distracted by other things. This was so despite evidence from Woolworths that the workers were supposed to be vigilant, including looking for items that might cause patrons to sustain a fall.”

He said there was “no doubt that Ms McQuillan was significantly injured”, and that lawyers acting for Ms McQuillan had argued Woolworths was negligent “for a number of reasons”, not simply the issue of whether staff were present in CCTV footage of the area.

“The plaintiff would have found it very difficult to win a claim based on negligence of staff who failed to inspect a floor within the premises when it was only opened for about six minutes,” he said.

“This was not the main argument of the plaintiff only one of a number of arguments put before the court, along with the much stronger point about staff not being vigilant.

“It turns out, however, [it] is the trial judge’s prerogative to rely on whatever point ... he feels is relevant and in this case he relied upon a much weaker argument that was put by the plaintiff rather than the primary and stronger claim of negligence mentioned above.

“And perhaps the strongest point being that a number of Woolworths staff walked past the dangerous item, namely the grape, without noticing it. The judge however in the first instance failed to adopt this very significant point.”

A Woolworths spokesman said: “Woolworths works hard to ensure we have robust in-store health and safety procedures in place for the safety of our customers and team members and we note the decision.”

Ms McQuillan has also been ordered to pay Woolworths’ legal costs.

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