Ordered in February to pay syndicate lender PSAL Limited $1,366,330.95 – calculated by reference to a court-reduced interest rate of 5% per month – on or before 4 pm 28 March, Wendy Kellas-Sharpe filed an appeal and applied to the supreme court in Brisbane for an order preventing the lender taking the property until after three appeal judges rule on her case.

The appeal argument – that has fundamental ramifications for finance lending practices across Australia – is whether or not the differential between base and default mortgage interest rates amounts to a de facto illegal “penalty”.

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The loan was on the time honoured terms of a “standard” interest rate of 7.5% per month and a “concessional” rate if payments were made promptly – and if the borrower was not otherwise in default – of 4% per month.

Trial judge Applegarth J, conceded that the “well-established” rule that protects such practice “may have unsatisfactory origins” and that “the time may have arrived for it to be replaced”. He declined to do so on the basis that such interest rate spreads have been considered without grievance by the courts for more than 300 years.

Her application for a stay of enforcement of the February ruling was heard on 16 April and the decision published on Thursday.

Noting that “it is arguable, at least in the High Court, and perhaps in the Court of Appeal, that it should now be held that the jurisdiction to relieve against penalties does extend to an interest rate provision in the present form”, Fraser JA deciding the application, refused it only on the basis of the basis of potential prejudice from delay, to the lender.

Our heroic nurse – if she remains presistent – may yet get her redress.

But to dampen all enthusiasm and to change the economics of the fight, the lender began proceedings on 4 May, to take possession of the mortgaged property.

Kellas-Sharpe & Ors v PSAL Limited [2012] QCA 094 Brisbane Fraser JA 16/04/2012

Arguing that the July 2006 document was a mere lease “application”, wedding and architectural photographer Philip Lennard – who was self represented for last week’s trial – asserted that its purpose was solely to assess his “lease worthy capacity”.

The District Court had to assess the question only too familiar to leasing agents: whether the letter of intent was final & binding on the one hand, or not binding until formal lease was signed, on the other.

The landlord’s agent, Blocksidge & Fergusson, had comprehensively specified all commercial factors and requirements in its four-page heads of agreement letter which concluded:

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“If the above summary correctly reflects your understanding of an agreement made with the Lessor and the Lessor’s Agent, please sign where indicated below and pay the deposit…The Lessor’s solicitor will then prepare a lease that incorporates the terms herein together with usual terms applicable to a lease of this type and submit this to you”.

Notwithstanding that the document “did not use the language of a lease application”, Lennard put his faith in the landlord’s insistence – after the lease “offer” had been submitted with verification attached of the required $50,000 bank guarantee from the second defendant’s mother – on a different form of guarantee, namely from the prospective tenants themselves. This, he said, was indicative of a counter-offer, rather than acceptance by the landlord of the document as a binding compact.

The argument would ordinarily have had some merit. But not for our camera man:  the bank guarantee was not expressed as a condition precedent to the formation of the lease but rather only as a requirement for entry into possession of the premises.

The agent’s LOI was held binding from the moment it was signed by the landlord and the tenant is liable for the rent as if a formal lease has been fully signed up.

Even in the buoyant rental market at that time, the premises were not re-let until January 2007. Losses in the meantime, including outgoings and re-leasing expenses totalled $113,000. Judgment was awarded on Wednesday in the landlord’s favour for this sum plus interest, a further $37,000.

The letter of intent – which was reproduced in full in the supreme court decision - was very comprehensively crafted. However, containing as it did a provision that “the lessee will provide to the lessor a statement of his assets and liabilities so that lessor may consider granting this lease on a more informed basis”, had the A&L statement not in fact been attached, it may well have been interpreted as a mere “application”.

The document did not unequivocally state - as it could have - that it was intended as a concluded agreement, subject only to documentation on usual terms not inconsistent with those of the LOI.

Regardless, the agent’s LOI well achieved its purpose in this instance but the point that needs to be made is that LOIs can be efficacious even if not intended to be immediately binding. Those that are drafted in such a way may cause as many – although different - legal conumdrums as those that are made subject to final documentation being agreed.

And – regardless of whether you favour  heads of agreement letters as being binding immediately upon signing or on the other hand, being subject to negotiation of final terms - it is important that the document be expressed one way or the other in crystal clear fashion – so that interpretation can, where possible, be put beyond dispute.

Colvin v Lennard & O’Brien [2012] QDC 071 Brisbane Koppenol DCJ 1/05/2012

Mark Rolls paid a $50,000 deposit to purchase a duplex condominium from co-developers Linda Radford and Claudia Scupin. He had signed a contract on the same property two weeks earlier but the transaction was re-documented because of disclosure statement compliance concerns the first time round.

Settlement was scheduled for July 2009 subject of course to registration on the plan of subdivision in the meantime. As it happened, registration occurred only two weeks after the contract was signed and a straightforward settlement would - all things being equal - have been assured.

There was one complication which in the context of deteoriating economic conditions, conspired to create contractual havoc.

The sellers had agreed between themselves that Scupin keep one of the apartments as her residence and Radford take her share of the development profit by way the sale of the other - lot 41 – to Rolls. To achieve this, Scupin transferred her interest in lot 41 to Radford who did likewise in respect of the neighbouring villa.

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This seeingly innocent manoeuvre, although alleged to have been notified by the sellers to the solicitors who prepared the contract; and by the seller’s estate agent to Rolls, was recited nowhere in the documents.

As settlement date approached, for reasons are not explained in the judgment - but possibly due to worsening market conditions as the looming credit crunch took hold in 2009 – Rolls refused to accept a conveyance from Radford solely.

Compliance with standard REIQ condition 7.3 (i) – requiring the vendors to be registered as owners as at the date of completion – was impossible he contended, entitling him to walk away from the deal.

He sued for return of the deposit and Radford cross-claimed in the supreme court for “rectification” on the basis that “the signed contract, by common mistake, failed to accurately express the true agreement”.

She argued the proposed ”separation of title” had alway been made clear to Rolls and that regardless, it was irrelevant that a second person was included in the contract reference schedule as a seller when her ability to convey free and clear title come settlement date was never in doubt.

Radford – who also sought damages for a re-sale loss of $120,000 – further asserted that Rolls must have known Scupin was out of the picture especially because he had signed up a tenancy agreement for the town house with her solely, pending completion and had several other conversations with her on the subject.

Rolls denied the conversations and despite the several exchanges by which Radford alleged he had acquiesced to the singular seller position, she appears not to have instructed her lawyers to assert such assent when they formulated their pre-settlement confirmation to their colleagues opposite.

In the end, the court held that the sellers had failed to establish that there had been a common mistake – the requisite pre-condition for ”rectification” relief  – but rather there had been a mere unilateral mistake, on Radford’s part solely, as to the contract’s effect .

Thus the buyer’s termination was last week upheld and the deposit ordered to be repaid – nearly three years after the due date for settlement.

That leaves a disappointed seller “very angry with her lawyers” and “intending to sue them” for a possible miscommunication in the handoff from the solicitor first instructed and her colleague who drafted the contract.

Given that there was no suggestion that the buyer was denied  any legal benefit or protection resulting from only one of the named sellers being on the title at settlement date, the recission may well be considered a text book example, of an ”opportunistic termination”.

Rolls v Radford & Anor [2012] QSC 092 Brisbane Philippides J published 30/04/2012

Vanessa’s symptoms worsened overnight and after presenting to Gold Coast Hospital emergency the next day to be cleared of fractures or major injury, she took several days off work to recuperate at home.

In the six months after the smash in March 2005, regular chiropractic treatment seemed to yield some improvement. She learnt to cope with her pain and avoid actions that seemed to increase discomfort, seeking medical or homeopathic treatment intermitently.

That was until August 2010, when  awaking in severe pain in the region of her neck and experiencing, for the first time, pins and needles in her left arm, she anxiously consulted her GP as to her prognosis.

It was the off-the-cuff comment from a Nerang radiologist that the pain originated from neck trauma probably caused by the 2005 accident - and that was probably too late to take any legal action – that motivated her to consult a lawyer for the first time a few days later.

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Thereafter swift specialist medical investigation attributed her symptoms to a neck injury, most likely caused – especially when current x-rays were compared to those taken prior to the motorway smash – in that crash.

Suncorp were put on notice of a claim against their insured driver but refused to agree that the 3 year limitation period should be extended to allow accident damages to be assessed.

District Court proceedings were started in May 2011 and – against Suncorp’s protestations – an order made in August extending the limitation period. Not content, Suncorp filed an appeal with judgment delivered this week.

Before moving forward to the result, readers must return – just for a moment - to the motorway scene.

Not stopping and not identified at the time, an on-the-scene police officer told the shaken Vanessa, he would try to track down the courier truck that eye-witnesses had claimed was the culprit. She phoned the police a week after the accident and asked the officer if he had been successful in locating the driver from the shipping label on one of the airborne car parts boxes. She was told the investigation was ongoing and that they would contact her on its conclusion.

A month or so later she called again and was told by another officer that their sleuthing “may take months or even years” and that she would be contacted “if their investigation revealed the vehicle’s identity”. That’s where the issue was left until, once on the job, her lawyers uncovered that the police had in fact identified the courier company, the truck and its driver.

In Wednesday’s Court of Appeal judgment, the court re-examined the evidence and in particular, the reasonableness of her claim that she was unaware both of the identity of the at-fault vehicle and of the extent of her neck injury, until August 2010.

Suncorp fiercely contended that Vanessa – to qualify as having conducted reasonable enquiry to ascertain the identity of the truck (the claimed new “material fact”) – ought to have been more vociferous and in her follow-up of the police.

“Reliance on advice from an unidentified police officer was not sufficient to hold that the identity of the other vehicle was not within the respondents means of knowledge within the limitation period”, it asserted.

Rejecting this submission, the court reminded Suncorp that it “in circumstances such as this needs to balance whether, on the one hand, the evidence discloses that the degree of pain and disability were such that an applicant ought to have realised [she] was in a position of vulnerability and needed to make and appropriate enquiry, or whether on the other hand it is a case, on its facts in which there was no requirement that the applicant to take appropriate advice or to ask appropriate questions”.

The primary judge’s finding that the case fell within the latter category was therefore approved.

The appeal court went to some lengths to affirm that limitation applications involve factual assessments and “an appeal court is not free to decide the question according to its own preference” and should not intervene “unless the judgement reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried”.

Suncorp Metway Insurance Limited v Norris [2012] QCA 101 Brisbane Margaret McMurdo P and Muir JA and Daubney J 17/04/2012

Conceding that he was “driven to” the conclusion by decided cases, and agreeing that some plaintiffs might access damages for a similar event, Judge David Robin ruled Jodie Smith’s circumstances fell outside the narrow specification for which building owners can be held accountable for failing to upgrade their glazing to current safety standards.

Smith had sued “Professional Suites” body corporate for its failure to audit or upgrade a large sheet glass panel at the entrance to 138 Albert Streetat any time since construction in 1971 and in particular, when conducting a lobby renovation that involved replacing the glass entry doors only a few months earlier.

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The glass complied with the relevant quality standard at the time of construction but not with safety glass standards that were required of new construction as from 1995.

The calamity occurred at about 8:30 pm on Friday 21 December following a start-of-holiday lunch at Southbank and after some of the staff had adjourned for further merriment to the now-defunct Adrenalin Bar in Charlotte Street.

Smith’s blood alcohol content was estimated – by count back – at 0.26%.

His Honour accepted in the 4 day trial in March, that an audit of the foyer glass could have been conducted by glassmen O’Briens for “a couple of hundred dollars” – and that it would have recommended an upgrade to standard, of the glass panel – thereby preventing the resulting injury.

In examining more than a dozen decided cases including Jones v Bartlett, his honour found that by precedent, there just was no duty to conduct such an audit and – as the defendant was not on notice of any risks associated with the glass or the aged compliance standard – it could not be held responsible.

It would be “drawing far too long a bow”, so held the court, to interpret Australian standard AS1288-1994 - which related to the new glass doors installed – as having any relevance to “other glass in the building, even glass panels immediately adjacent”.

Moreover, the owners had been entilted to rely on the refurbishment advice of their architects who, on the evidence, had not made any recomendations to upgrade the panel.

In assessing damages only for consideration should his dismissal ruling be succesfully appealed, his honour noted the paucity of  cases dealing with scarring and remarked as to the different gender effect of such injuries.

“Scarring consequent upon lacerations may be acceptable in the sense of not causing embarrassment in the case of males, depending on the circumstances (even on occasion having a certain cachet), but in our society that is not the case for a woman.”

Also noting that the plaintiff’s facial and neck scarring “now that it has settled, is not at all dramatic; most would not characterise it as disfiguring”, the court nevertheless “ought to respect the plaintiff’s own reaction to it”.

The physical scarring and a psychological impairment of 10% as assessed by psychologist Peter Stoker thus resulted in general damages of $50,000.

The judge thought that the combination of scarring and psychological complications did in fact compromise the plaintiff’s earning capacity and assessed $8,000 for the past and $15,000 the future.

As a final point to take from this pre-Civil Liability Act textbook illustration, the court ruled that had the defendant been liable, the plaintiff would have been found contributorily negligent to the extent of 30%.

The plaintif’s day in court was long in the anticipation and her regret at falling short at the end, will perhaps endure for some time. It may also be unfortunate that the assessed quantum will probably not warrant the risk of appeal, even if an appeal were considered viable.

Smith v Body Corporate for Professional Suites [2012] QDC 049 Brisb Robin QC DCJ 30/03/2012

Darryl Hosmer – aged 41 at the date of last week’s judgment – was repeatedly swinging a sledgehammer in confined conditions when he felt something “let go” in his back.

Having maintained its denial of liability until the trial, the Cook Shire Council finally conceded fault for the April 2008 incident and at contest in the three day trial was the significance of a pre-existing back condition and the true extent of the sledgehammer injury.

Medical opinion concurred that the injury was caused by the incident but there was no evidence to establish what the future effects of the pre-existing condition might have been.

Thus it was impossible for the court to fix the proportion that the sledgehammer symptoms represented to the plaintiff’s overall pathology.

Rather, the court ruled that the whole of the current injury and symptoms were caused by the swinging sledgehammer but reserved its view as to the percentage possibility “that at some future time the pre-existing condition would have resulted in Hosmer becoming as disabled as he was following the injury, even if the injury had not occurred”.

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To reach a conclusion on this latter point, consideration of the council’s adverse credibility allegations – that Hosmer was a malingerer - was required.

Despite being off work on weekly benefits, Hosmer “could not resist the temptation to secretly do some paid but physically undemanding, work on the side”.

His prolific nondisclosure also extended to applying for a total and permanent disablement insurance payout under superannuation which yielded him nearly $180,000.

The court found that he had concealed the casual work so as not to put at risk his weekly compensation but despite his “deliberate lack of candour”, it was – fortunately for Hosmer – “not destructive of his credibility generally”.

Neither should the frequency of his annual employment changes be held against him as there was “no logical basis to suggest it is unusual for unskilled manual workers to change employers as often as he did”.

The court also rejected the council’s contention that a 2.5 year period of unemployment demonstrated he was “not by disposition determined to secure employment and was content to lead a lifestyle that did not require much money to support it”.

To the contrary, it was found that this occurred following a marital breakdown when Mr Hosmer had assumed the custody of his two young children. His several job applications to the council due to the suitability of its attendance demands was consistent with “his circumstances as a single parent”.

It was further contended by the council that Hosmer had fraudulently represented his living arrangements to maximise Centrelink benefits in asserting that his girlfriend – with whom he had had a child last year – lived with her mother.

This allegation was thought to be supported as an entry in the records of the defendant’s orthopaedic specialist Dr Kingsley Foote specified his relationship status as “de facto”.

However because it was “tolerably clear” Dr Foote had misunderstood the plaintiff’s history on three other counts, the relationship status record was accepted as having only arose “because of limitations in what pro forma entries could be ticked during the consultation”.

The court decided that the domestic arrangement claimed not to be “so extraordinary as to render his evidence about it implausible or detract from his credibility” and ruled that Hosmer’s evidence on the subject should be regarded as final.

Having perhaps generously granted some latitude to the plaintiff on credibility findings, the court wielded a sizable axe to its assessment of lost earning capacity.

Past loss of wages were reduced by a “modest” 10% to allow for the possibility of Hosmer having secured “some employment in a less physically demanding job in the meantime”. This was further discounted by 35% – being the best estimate the court was able to make – for the contingency that the plaintiff “might have become disabled to the current extent, even if the injury had not occurred”.

For future loss of earning capacity the assumed retirement age was conservatively set at age 62 and the overall contingency discount applied was escalated to 55%.

Total assessment, $453,000, well down on the formulation postulated.

Hosmer v Cook Shire Council [2012] QSC 091 Cairns Henry J 12/04/2012

Bleijie, a solicitor, was an active member of the Parliamentary Legal Affairs Committee that recommended buyer warning statements be incorporated into residential real estate contracts and the PAMDA requirement for “attention directing” pre-contract notifications, be eliminated.

The Property Agents Bill from 2010 was finally listed for debate in late October but was eventually shelved as the former government struggled with a multitude of unpopular issues as election date approached.

In a final piece of melodrama, former premier Bligh pledged in January to “create a single contract” for residential real estate to reduce consumer conveyancing charges and to lessen suffocating red tape for the industry.

This “clear the decks” announcement attempted to stem an election storm from the industry and its clients but brought nothing, except of course that the decks have themselves been swept clean of old-guard political debris.

Every agent and developer knows the current multitude of forms is as confusing to buyers as it is useless as a consumer protection measure. The forms are mostly ignored.

Transaction and disputations cost are a painfully real everyday part of the lives of most industry personnel – and many of the developers and consumers they are servicing.

At last there is an excellent prospect of real reform actually happening.

Fortunately for the footwear & clothing outfitter tenant, confirmation of the exercise was also sent – as the only means specified in the lease – by post to the landlord’s solicitors.

And although strictly an erroneous “assertion that the option had been exercised” by way of the previous day’s e-mail, the court reasoned the correspondence was incapable of being reasonably interpreted other than as an unequivocal exercise of the option.

But our tenant “Rivers” – who operates a clearance outlet at the Gregory St store - was  also confronted with other challenges to the option.

Two months before the 1 June 2008 renewal date, the landlord for the first time claimed electricity charges for air-conditioning to the premises for the entire preceding five years.

Surprised by this bolt out of the blue – they charges totalled $122,000 – the outfitter’s solicitors naturally enough sought some clarification.

Not to be argued down, the landlord issued a tax invoice and then followed a notice to remedy breach of covenant.

Negotiations ensued but the charges remained unpaid to the landlord as at the renewal date.

Despite subsequent agreement and satisfactory payment, the landlord relied on non-payment at renewal date to assert that the tenant should be denied any further lease – and the benefit of a below market rental – because non compliance with the option condition precedent requiring the tenant not to be in breach.

Rivers filed an originating application in May 2008 seeking a declaration from the Supreme Court that the option had been validly exercised. The parties faced-off in a two-day trial that culminated in last week’s judgment.

In the absence of pleaded reliance on Property Law Act s 128 (which allows a lessee relief against the effect of such a breach) in respect of which the court refused a from-the-bar-table leave to amend request, it ruled that the tenant’s attempts to clarify its power charge liability, were nevertheless reasonable.

Thus it was not in breach at the relevant time: “the defendant failed to prove the breach upon which it says the tenant became disentitled to a further lease”.

Had the court ruled otherwise and because tenant remained in occupation throughout, the landlord would have recovered rent from the renewal date at market, which was perhaps “too conservatively”, assessed by a court-appointed valuer at $400,000 higher than the option determined rent actually paid during that period.

Rivers (Australia) Pty Ltd v Mainscar Pty Ltd [2012] QSC 063 Brisb McMurdo J 29/03/2012

In an Office of Fair Trading appeal – said to be “representative” of 38 separate 2003 transactions – the payment of an “administration fee” to a developer consultant was approved in principle but the court ruled the selling agent must stand trial for disclosure shortcomings in the PAMDA form 27c that was presented to buyers prior to contract execution.

The developer’s total sales and marketing outlay was – pursuant to its earlier “administration agreement” with the marketer – set at $15,000 for vacant lots and for house and land packages, $25,000.

The marketer’s own take, was the balance of this fixed sum after cutting a cheque to Gold Coast agent Cross Country Real Estate for standard commission. In one of the two transactions at issue, the marketer’s get was $7,000 and in the other, about $10,000.

When presenting the PAMDA document to the buyer, the agent disclosed its commission and a consultant’s fee but did not reveal the identity of the consultant, which was an associate company, Park Trent Investments P/L.

Even though the non-disclosure of Park Trent’s identity was to conform with a confidentiality provision in the administration agreement, according to the appeal court, the failure to identify the company by name was fatal to the proper performance of the agent’s obligation.

Given that the relevant PAMDA section specified disclosure to only be effective if given in the approved form, the court held “the identity of the developer’s consultant must be apparent from the form itself” and not something a buyer has to ascertain when the form is compared to other documents or information.

Neither did the form accurately articulate how the marketer’s cut was arrived at.

Rather, the form 27c listed – somewhat obtusely – six different functions ranging from database management to public relations, the performance of each of which qualified the consultant to receive 1.5% of the sale price up to a maximum of 9%.

Unfortunately, this methodology bore no relationship to the formula in the developer–marketer agreement as described above.

Thus “there was no way that the prospective buyer could arrive at a realistic approximation of the benefit Park Trent expected to receive using their formula disclosed in the form 27c”.

The court ordered that the agent’s prosecution for the PAMDA alleged offences in the Southport Magistrates Court – which Cross Country sucessfully defended the first time round - be repeated within the next few months.

This was Cross Country’s second appeal, the first being in August 2006 when it unsuccessfully argued that the charges should be struck out because they were “out of time”.

 Peebles v Cross & Ors [2012] QDC 044 Sthport Wall QC DCJ 27/03/2012

A lower-limb amputee, Strong had fallen to the floor in September 2004 after one of her crutches landed on a greasy chip, assumed to be from a nearby food court eatery.

She had been shopping with her daughter and a family friend, wandering between racks of potted plants displayed for “sidewalk sale” outside the entry to the Big W Taree City Centre store.

Woolies stalled the payment with a successful appeal in 2010 but last week’s decision is final and pay up they now must.

The further appeal to the High Court concerned the “familiar difficulty in slipping cases” of establishing “causation” between the absence of an adequate cleaning system and any resulting injury when it is not known how long before, the food remains had been spilled.

Unlike most cases confronting slip & fall plaintiffs, Big W conceded it had no system for the periodic inspection and cleaning of the sidewalk sales area. Merely instructing staff and the front entrance “greeter” to be on the lookout for spills, just did not cut it: it did not amount to any “system” at all.

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At contest was whether – even if they had deployed a reasonable inspection system – say with 15 minute cleaning rotations, the debris would have been spotted and the fall prevented.

Woolies argued it was more likely than not that the chip had been dropped since midday, after the start of the food court lunch hour rush and most likely, after 12.15pm and thus undetectable by the hypothetical quarter hour cleaning rotation.

This somewhat simplistic contention found favour with three state appeal judges who held there was no basis  for concluding that the chip had been floor-resident for a sufficiently long period to have been detected by a reasonable surveillance regime.

Such conclusion was emphatically rejected in last week’s judgment.

Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.Finding there was no basis to infer that junk food was more likely to be eaten for lunch than for breakfast or a snack, the four judge High Court majority ruled it equally probable that the food fell to the floor during any quarter hour interval since start of trading at 8:00am, as it was to have occurred in a quarter hour period after midday.

By corollary, it must have been more probable that the food spill had actually occurred at some time in the first four or so hours of trading, than in the period immediately preceding the plaintiff’s fall.

“That there is another possibility ….is no answer to the question whether something has been demonstrated…. on consideration of the probabilities”.

Thus with no evidence that the chip had been on the floor for any extended period or even for example that “it was dirty and cold to the touch”, the plaintiff was allowed to succeed on time period probability, in the absence of evidence from Big W that the spill hadn’t occurred in an earlier time slot.

Section 5D(2) of the Civil Liability Act 2002 (NSW) – identical to s 11 in the Queensland Act that permits proof of causation in “an exceptional case” where  the “but for” test is not otherwise satisfied -  was considered at length, with the High Court concurring with the interpretation of the appeal court below.

“The provision permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm”. As at common law, the High Court has affirmed that the statutory codes allow recovery where for example “there are multiple contributing factors to the injury …. or where one factor resulted in a material increase in the risk of injury even though there were other greater contributing factors”.

This decision – in relation to how probabilities should be addressed – will no doubt breathe life into many a slip & fall claim.

The conceded absence of any regular cleaning rotation eased the path for our plaintiff. However Strong represents a major shift in the proof-of-fault dynamic: the forensic advantage hitherto enjoyed by defendants over their unsuspecting customers – ignorant of debris dwelling duration – has, in all probability, been eliminated.

Strong v Woolworths & anor [2012] HCA 5