From the recent NSW Court of Appeal decision of Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264, it appears that the unfortunate Plaintiff slipped up twice.
She claimed she was choosing dip from the Coles' chilled section when she slipped and fell, suffering right arm and left foot injuries. Afterwards, she saw two small pieces of cardboard on the floor and brought a claim against the supermarket alleging breach of its duty of care to her as customer.
At first instance, the Judge found that the plaintiff probably had stepped on the cardboard before slipping and injuring herself. He thus found that Coles was negligent in allowing two small pieces of cardboard to be on the supermarket floor and awarded damages of $119,024.
Coles appealed. They argued that the evidence did not permit a finding that small pieces of cardboard on the floor presented a hazard likely to cause shoppers to slip, or a finding that Ms Meneghello had actually slipped on the cardboard.
The appeal succeeded and Coles was not negligent. The plaintiff had failed to prove that she stepped on the cardboard, or that stepping on the cardboard caused her to slip. The earlier decision was set aside and Ms Meneghello was ordered to pay Coles' costs.
(Ed: the temptation to refer to "down, down" is overwhelming but must be resisted).
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