Coles has clawed back 25 per cent of a slip-and-fall payout on appeal.
Coles has clawed back 25 per cent of a slip-and-fall payout on appeal.

Coles customer’s $172k phone call

A COLES customer who was awarded a six-figure slip-and-fall payout has been docked nearly $200,000 on appeal because he was on the phone at the time of the accident.

Larry Bridge was awarded $688,071 by the NSW Supreme Court in December after suing the supermarket over the 2014 accident, which occurred in the carpark of the Coles at Toormina near Coffs Harbour.

Mr Bridge, who was wearing thongs at the time, was pushing a trolley full of groceries one-handed while answering a call on his mobile phone in the other. After walking through a puddle, his foot slipped forward and out from underneath him, causing him to fall heavily.

He was taken to Coffs Harbour Hospital where scans showed he had suffered a fracture around his prosthetic hip. The injury required a "painstaking and difficult complete revision of the hip replacement".

The 58-year-old truck driver was unable to return to work due to the severity of the injury and was later diagnosed with "chronic adjustment disorder with depressed and anxious mood".

The court heard the accident had a "significant" impact on his social life and he "scarcely" took part in his former hobbies of motorcycle riding and rock fishing.

In his original decision, Justice Stephen Campbell found Coles was negligent for failing to treat the "smooth polished surface" with non-slip material to create a walkway, saying he was "satisfied on the balance of probabilities that the risk of injury was foreseeable".

Justice Campbell dismissed Coles arguments that Mr Bridge had contributed to the accident by wearing thongs and being distracted.

"Thongs are very common footwear worn by persons of all ages and conditions of life in Australia," he said. "It is not unreasonable for a person to sport them even on a rainy day."

On the phone call, Justice Campbell said the "momentary" distraction "did not constitute a failure to keep a proper lookout".

"Perhaps more importantly, the particular risk that materialised was not obvious and accordingly could not have been avoided by Mr Bridge simply paying greater attention to where he was walking," he said.

On Friday, the NSW Supreme Court of Appeal allowed Coles' appeal in part, with Justices Mark Leeming, Anthony Payne and Robert Emmett finding that Mr Bridge using the phone had in fact contributed to the accident.

"Clearly, the precautions that Mr Bridge would take against that risk would be different from the precautions that Coles, might take against that risk," they wrote.

"One precaution would be to give full attention to the surface and where Mr Bridge might place his feet. It is significant that the slip occurred while his attention was distracted by his telephone.

"It was not suggested that the point where he slipped was more slippery than any other part of the surface of the car park.

"I would therefore draw the conclusion that the inadvertence and distraction occasioned by giving attention to the telephone contributed to Mr Bridge's fall and constituted negligence on his part."

The court found Mr Bridge's actions contributed 25 per cent to the accident, reducing his payout from $688,071 to $516,053, or 75 per cent of the original amount. He was also ordered to pay Coles' legal costs.

"It is very difficult to slip and fall, even if walking on a slippery surface, if one is pushing a trolley and giving reasonable attention to that task," they said.

"The reason is simple: in addition to the ordinary support and balance of one's feet, there is the advantage of support and balance from at least one, and commonly both, hands on the trolley.

"Of course the trolley is moving, but it will be doing so generally at the same speed and in the same direction as the person, thus providing a further source of support and balance in the event of a slip.

"When Mr Bridge chose to answer his mobile phone, he removed one hand from the trolley, and focused on his handset. We would readily conclude that doing so causally contributed to his falling.

"His inattention and his having only a single hand on the trolley made it more likely that he could not save himself from his slip and instead would fall to the ground. Accordingly, we respectfully differ from the primary judge."

A Coles spokeswoman said: "We won't comment on a court case."

It comes after Woolworths last year successfully appealed a $151,000 payout to a Sydney woman who slipped on a grape. Colleen McQuillan's lawyers said it was a "devastating result for our client who is a very genuine significantly injured person".