Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135

Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135

The appeal succeeded because Ms Tormey proved at most that Coles employees knew of the first trolley incident, which did not itself show conduct likely to cause harm, but did not prove that Coles knew of the more serious second incident. Without proof of knowledge of the second incident, Coles' knowledge was insufficient to give rise to a duty to take reasonable care to avoid injury from those activities, or alternatively insufficient to prove breach. The cross-appeal failed because, if reopened, it had to be determined by reference to the Civil Liability Legislation Amendment Act 2008 and not Harrison v Melham.

Jurisdiction
Australia
Judgment Date
09 June 2009
Procedural Posture
Appeal and Cross Appeal in Negligence Proceedings / Appeal From District Court Judgment
Outcome
Appeal upheld; cross-appeal dismissed.
Legal Topics
['duty of Care to Protect Against Acts of Third Parties' "occupier's Liability" 'foreseeability of Harm From Unruly Customer Behaviour' 'jones V Dunkel Inference' 'appeal by Way of Rehearing' 'gratuitous Attendant Care Services']
['torts' 'negligence' 'evidence' 'appeal'] ['duty of Care to Protect Against Acts of Third Parties' "occupier's Liability" 'foreseeability of Harm From Unruly Customer Behaviour' 'jones V Dunkel Inference' 'appeal by Way of Rehearing' 'gratuitous Attendant Care Services']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal and Cross Appeal in Negligence Proceedings / Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether Coles, through its employees, knew of activities by two customers with a trolley that created a foreseeable risk of injury to Ms Tormey.' "Whether knowledge of the first incident and the men's noise was sufficient to require Coles to intervene." "Whether a Jones v Dunkel inference was available from Coles' failure to call certain employee witnesses." 'Whether the cross-appeal concerning future domestic assistance could succeed after the Civil Liability Legislation Amendment Act 2008.']

Ratio Decidendi

The appeal succeeded because Ms Tormey proved at most that Coles employees knew of the first trolley incident, which did not itself show conduct likely to cause harm, but did not prove that Coles knew of the more serious second incident. Without proof of knowledge of the second incident, Coles' knowledge was insufficient to give rise to a duty to take reasonable care to avoid injury from those activities, or alternatively insufficient to prove breach. The cross-appeal failed because, if reopened, it had to be determined by reference to the Civil Liability Legislation Amendment Act 2008 and not Harrison v Melham.

Court Disposition

Appeal upheld; cross-appeal dismissed.

Orders

  • ['The appeal is upheld and the cross-appeal is dismissed.' 'The orders made by Nield DCJ are set aside and in lieu thereof there is to be a verdict and judgment for Coles.' 'Ms Tormey to pay the costs of the trial and the costs of the appeal.' "Ms Tormey to have a certificate under the Suitors' Fund Act 1951 if...