To: Woolworths New Zealand From: Trainee Solicitor Date: 24 May 2024 Re: Potential Tort Liability regarding Chantal and Charlotte
Introduction
This memorandum provides advice on the potential liability of Woolworths New Zealand (“Woolworths”) in tort following an incident in the car park of its Auckland store involving Chantal and her daughter, Charlotte. The advice will consider the distinct claims of each individual, the elements of a negligence claim, and any defences or limitations on liability, with particular attention to New Zealand’s accident compensation scheme.
Claim by Charlotte
Charlotte may bring a claim against Woolworths in the tort of negligence. For her claim to succeed, she must establish that Woolworths owed her a duty of care, that Woolworths breached that duty, and that the breach caused her to suffer harm that is not too remote.
Duty of Care A duty of care is likely to be established. As an occupier of the premises, Woolworths owes a common law duty to its lawful visitors, such as customers, to take reasonable care to ensure they will be reasonably safe in using the premises for the purposes for which they are invited to be there (see B v Waitemata District Health Board [2002]). Charlotte was a customer using the car park, a purpose for which she was permitted to be there. Therefore, Woolworths owed her a duty of care.
Breach of Duty The issue is whether Woolworths breached this duty by failing to remove the banana peel. The standard of care is that of a reasonable supermarket operator. The fact that the peel was described as “partly black” suggests it had been on the ground for some time. A claimant could argue that a reasonable system of inspection and cleaning would have identified and removed this hazard. The burden would be on Woolworths to demonstrate it had a reasonable cleaning system in place, for example by providing cleaning logs and staff rosters. Without such evidence, a court may infer negligence (Todd, 2019).
Causation and Remoteness Charlotte’s harm is her “bananaphobia” (a psychiatric injury) and the resulting loss of her job. It is clear that ‘but for’ slipping on the peel, she would not have developed the phobia.
The more difficult question is whether this harm is too remote. For psychiatric harm to be recoverable, it must be a recognisable psychiatric illness, not merely grief or sorrow (van Soest v Residual Health Management Unit [2000]). Charlotte’s diagnosis and need for therapy suggest her condition would meet this threshold. The key question is whether it was reasonably foreseeable that a person might suffer some form of personal injury from slipping on a peel. If some form of personal injury (physical or psychiatric) is foreseeable, the defendant must take the victim as they find them (the ‘egg-shell skull’ rule). This means Woolworths would be liable for the full extent of Charlotte’s phobia, even if its specific development was unforeseeable. It is arguable that some form of injury is foreseeable from a slip, and therefore the phobia may not be considered too remote. Her loss of income is a direct consequence of the phobia and would likely be recoverable if the phobia itself is not too remote.
Claim by Chantal
Chantal’s claim would be assessed on similar grounds.
Duty, Breach and Causation Woolworths owed Chantal the same duty of care as a lawful visitor. The breach is the same: the failure to remove the peel. The breach clearly caused her physical injuries (a broken kneecap).
Defences Woolworths has a strong argument for contributory negligence against Chantal. She was "checking a message on her phone" and not looking where she was going when she rushed to her daughter. This indicates a failure to take reasonable care for her own safety, and a court would likely reduce her damages to reflect her share of the responsibility for the fall.
The Accident Compensation Act 2001 (ACC)
The most significant factor affecting these claims is the Accident Compensation Act 2001 (“the Act”). Under section 317 of the Act, a person is barred from bringing legal proceedings for damages arising from a personal injury covered by the scheme.
Chantal’s Claim Chantal suffered a broken kneecap, which is a “personal injury” as defined by the Act. As she has suffered a physical injury, she is entitled to cover under the ACC scheme for her medical costs and lost earnings. Consequently, section 317 acts as a complete bar to her bringing a tort claim against Woolworths for compensatory damages. Her claim will fail on this basis.
Charlotte’s Claim Charlotte’s situation is different. She suffered no physical injuries. Her claim is for a “mental injury”. Under the Act, a mental injury is only covered if it is suffered because of a physical injury, or in other limited circumstances not applicable here (s 26(1)(c)). Since Charlotte’s bananaphobia was not caused by a physical injury to her, it is not a "personal injury" covered by the Act. Therefore, the statutory bar in section 317 does not apply, and she remains able to sue Woolworths in tort.
Conclusion and Advice
- Chantal’s claim for compensatory damages will be barred by the Accident Compensation Act 2001. Woolworths has no liability to her in tort.
- Charlotte’s claim is not barred by the ACC scheme. Woolworths likely breached its duty of care to her. While the remoteness of her specific psychiatric injury is a potential point of argument, the egg-shell skull rule makes it likely that her claim for the phobia and consequential financial loss would succeed. Woolworths’ best course of action is to gather all evidence of its cleaning and inspection systems for the car park on the day of the incident to challenge the allegation of breach.
References
- B v Waitemata District Health Board [2002] 2 NZLR 849 (CA).
- van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).
- Todd, S. (2019) The Law of Torts in New Zealand (8th ed.). Thomson Reuters.
- Accident Compensation Act 2001.
