Bridge -v- Coles Supermarkets Australia Pty Limited (No 3)  NSWSC 1800 (19 December 2017)
The Supreme Court of NSW recently found in favor of Mr Bridge and ordered Coles, the Defendant, to pay him the sum of $688,000.71. Mr Bridge was awarded damages for injuries he sustained in a fall on 6 April 2014 when he slipped and fell in a below ground car park at Coles’ Coffs Harbour store. The decision of Campbell J may have a bearing on similar cases in the future, particularly his findings in relation to breach of duty of care and obvious risk (within the meaning of s5G of the Civil Liability Act 2002).
Slip and fall injury
On 6 April 2014 Mr Bridge, an elderly man, had completed some shopping with his wife and was pushing a laden trolley through the underground car park. It had been raining and the whole area of the car park was wet. There was nowhere dry to walk. He was holding his mobile phone in one hand and pushing the trolley in the other, and navigated most of the way to his parked vehicle, including through a large puddle of water. After he had cleared the large puddle, he slipped in some comparatively minor water and fell heavily onto his left side. As a result of the fall, he sustained a particularly severe injury to his hip which had been previously been replaced. He required a revised hip replacement which was a very extensive operation. As a result of the accident, he was left with reduced mobility and quality of life.
Coles was aware of the risks
Campbell J found that the evidence established Coles was aware, or ought to have been aware, that water regularly flooded the car park in times of heavy rainfall. Furthermore, due to complications in the construction of the car park and discussions with the developer, Coles should also have been aware that its surface was not uniform. Measures had been taken during the construction of the car park to screed the surface to make a non-slip finish, as it was foreseen that water would enter the car park from time to time during periods of heavy rainfall. However, there were areas of the car park which had a smooth, polished finish. Coles had been advised by the developer of the car park that smooth areas would pose a significant risk of injury due to the tendency of water to flood into the car park.
Coles argued that it should not be liable for Mr Bridge’s injuries because, among other matters, it could not have foreseen that a member of the public would slip in the localised area of smooth polished concrete and further, that it would have had to test every area of the car park in order to reveal the problem. Campbell J found against Coles on those points, noting the above facts. Coles further argued that it was only a lessee and was not responsible for structural defects in the car park. Campbell J found against Coles on this point also, finding that Coles needn’t have tested the car park because it had actually been told it was dangerous and it would have been a simple matter for it to have installed a non-slip surface in the form of a coating to form a walkway, bordering the thoroughfares through which vehicles travelled. He also found that Coles ought to have made requests of the landlord to fix the problem.
Coles argued that the risk was obvious and therefore it should not be liable. Campbell J found that the risk was not obvious because the finish of the car park was not uniform. In that regard, he noted that Mr Bridge had traversed a large section of the car park without difficulty, presumably the screed section with a rougher finish, and therefore the smooth sections were apt to surprise members of the public, such as Mr Bridge, who then walked onto the smoother section which were much slipperier in the wet conditions.
Common sense prevails
The decision is consistent with common sense. Coles was aware of the problem and should have done something to fix it. Coles would no doubt be disappointed with the decision however, as it appears there were very significant problems in the construction of the car park, to which it was not a party and over it which had no control.