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.
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."
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. Her legal team has been contacted for comment.
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