Case note: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435
Facts
The Plaintiff, Ms Vincent (Vincent), was a store merchandiser employed by Counterpoint.
As a merchandiser, her job involved product presentation, including the creation of promotional displays. Merchandisers display products according to a planogram (a plan/diagram prepared to make a product more appealing to customers).
Vincent was arranging products in a Woolworths store according to a planogram, with the use of a safety step. A male customer was pushing his trolley down the centre of the aisle in which she was working. He was not looking at Vincent, who was working to his right. Vincent was on the step and concentrating on her task. As she stepped down from the safety step, she collided with his shopping trolley.
CCTV footage showed that she looked to either side before stepping down but did not turn her head fully, in either direction, to check for customers.
Issue for determination
Vincent brought separate proceedings against Counterpoint and Woolworths. Vincent argued that Woolworths and Counterpoint failed to take appropriate precautions against the risk of her suffering injury in the course of her work.
Woolworths accepted that it owed Vincent a duty of care but argued that it was the ‘bare’ duty of an occupier of premises.
Vincent said that Woolworths should have warned of the risk that she could collide with a customer, provided manual assistance or provided a ladder for her to use.
Findings
The Supreme Court of New South Wales made these findings:
- Woolworths owed visiting merchandisers, ‘a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths’ operations’.
- If Vincent had fully turned her head, she would not have stepped down and collided with the trolley.
- The safety step was adequate in the circumstances and allowed her to access lower shelves without restriction.
- Placing a barricade around Vincent would have created difficulty and inconvenience to her work.
- The fact that the risk assessment didn’t identify the potential for collision with customers, did not amount to a breach of duty of care by Woolworths.
- It was reasonable for the employer to leave the simple task of stepping onto and off a safety step to the ‘good sense and ordinary care of a mature aged worker’.
The Court dismissed Vincent’s case and found that neither Defendant was negligent.
Considerations
The case may be of assistance to employers seeking to defend similar cases. It also clarifies the scope of the duty of care owed to contractors who work within retail stores. To read the decision, click here.
This article is not legal advice. For advice regarding a workers’ compensation or host employment claim, call Denning Insurance Law on (07) 3067 3025.
