Stringer & or v Westfield Shopping Centre Management Co (SA) Pty Ltd
[2017] SASCFC 138
•26 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STRINGER & OR v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (SA) PTY LTD
[2017] SASCFC 138
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
26 October 2017
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - ONUS OF PROOF
While walking down one of the aisles at West Lakes Westfield shopping centre, the first plaintiff slipped on some spilt liquid and fell, suffering serious injuries.
Reflections Cleaning Company (Reflections) was contracted by the defendant to clean the shopping centre. About one minute prior to the fall, one of Reflections’ cleaners attended the approximate location of the fall and changed the bin bag for a nearby bin.
The plaintiffs contended that: irrespective of how the liquid came to be spilt on the floor, the defendant was liable as occupier of the premises; that even if it had properly delegated its duty of care to Reflections (which was denied), it was vicariously liable for the negligence of Reflections; or it was liable for breaching s 23 of the Occupational Health Safety and Welfare Act 1986 (the Act). The trial Judge rejected each of those bases of liability.
The plaintiff appeals against the Judge’s findings as to liability and also complains that the Judge’s reasons are inadequate in light of the delay of nearly two years between trial and judgment under the principles summarised in Terry v Leventeris (2011) 109 SASR 358.
Held per Peek J (Kourakis CJ and Nicholson J agreeing), dismissing the appeal:
(1) The Judge was correct in finding that the spillage was caused by the second Reflections cleaner as she changed the bin bag.
(2) The Judge was correct in finding that, first, the defendant discharged the evidentiary onus concerning the requirements for valid delegation adumbrated in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, and second, that the plaintiff failed to discharge the legal onus of establishing that these requirements were not satisfied.
(3) The Judge was correct in finding that the relationship between the defendant and Reflections was that of principal and independent contractor and that on the present facts vicarious liability does not arise.
(4) Assuming (without deciding) that s 23 of the Act gives rise to a civil cause of action, the requirements of the section are not satisfied here; there was nothing which the defendant could have done as a matter of “reasonable practicability” to prevent the cleaner’s “act of carelessness” in spilling the liquid.
(5) The Judge was clearly alive to the principles in Terry v Leventeris; his Honour accurately summarised the relevant evidence and appropriately indicated why he preferred certain evidence over other evidence. While the delay is unfortunate, no error is demonstrated.
Occupational Health Safety and Welfare Act 1986 s 23, referred to.
Stead v State Government Insurance Commission (1986) 161 CLR 141; Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, applied.
Fox v Percy (2003) 214 CLR 118; Rail Commissioner (formerly TransAdelaide) v Warner [2011] SASCFC 90; Terry v Leventeris (2011) 109 SASR 358; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Ragnelli v David Jones (Adelaide) Pty Ltd & Anor (2004) 90 SASR 233; Strong v Woolworths Ltd (2012) 246 CLR 182; Jones v Bartlett (2000) 205 CLR 166; Laresu Pty Ltd v Clark [2010] NSWCA 10; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASR 458; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; AFA Airconditioning Pty Ltd v Mendrecki and Others; Doan and Another v Mendrecki and Others (AFA Airconditioning) (2008) 101 SASR 381; McVicar v S & J White Pty Ltd (t/a Arab Steed Hotel) (2007) 97 SASR 160; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 29; Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, discussed.
Johnson Diversey Australia Pty Ltd v Ferenczy [2013] SASCFC 59; Woolworths Ltd v McQuillan [2017] NSWCA 202; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2011] SASC 199, considered.
STRINGER & OR v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (SA) PTY LTD
[2017] SASCFC 138Full Court: Kourakis CJ, Peek and Nicholson JJ
KOURAKIS CJ: I would dismiss the appeal for the reasons of Peek J and the following additional reasons on grounds 2 and 3.
Discharged a delegable duty (Ground 2)
The duty of an occupier in the circumstances of the respondent may be discharged by the exercise of reasonable care and skill in engaging someone else to keep the premises safe.[1] In Bevillesta Pty Ltd v Liberty International Insurance Co,[2] the Court of Appeal of New South Wales held:
[53]There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.
[1] It was not contended before the Judge or on appeal that this case fell within that ‘non‑delegable duty’ category of case identified in AFA Air Conditioning Pty Ltd v Mendrecki (2008) 101 SASR 381 at 417‑418, [137]-[139] per Layton J and Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 at [39]-[44] per Doyle CJ in which the performance of a task carries with it an inherent and high risk of harm to others.
[2] [2009] NSWCA 16 at [53] per Hodgson JA.
The last sentence speaks of an occupier escaping liability if reasonable care is exercised in the selection, stipulation of terms and monitoring of a contractor. However, the failure to exercise care in those respects does not, of itself, make the occupier liable. In particular, it should not be thought that the omission of any reference to causation in the last sentence of that passage means that it is not necessary to prove that the injury in some way resulted from the occupier’s negligence in the process of contracting out the tasks in question.
There is always some risk of misunderstanding in transposing terminology from one area of legal discourse to another. The concept of delegation is commonly applied in public law and the law of agency. Even though it is a convenient shorthand in tort law to distinguish between the nature of the duty of care generally applicable in the law of negligence and the special duty imposed on persons who are entrusted with care of others who are particularly vulnerable, it is apt to mislead. In particular the question is not whether an occupier has effectively or reasonably delegated its duty but whether it has exercised reasonable care in the discharge of its duty by the engagement of a third person to keep the premises reasonably safe.
To describe a duty as non-delegable does not mean that an independent third person cannot be engaged to perform tasks and undertake the responsibilities necessary to discharge that duty of care. The position is that a non-delegable duty is not discharged merely by exercising reasonable care in the selection of, agreement of terms of engagement with, and monitoring of a third person. The duty extends to ensuring that reasonable care is taken by the third person with the effect that any negligence of the third person, even if an independent contractor, will be attributed to its employer.[3]
[3] New South Wales v Lepore (2003) 212 CLR 511 at 529-530, [23]-[26] per Gleeson CJ.
On the other hand, the generally applicable, delegable, duty of care can be discharged by exercising reasonable care in the engagement of an independent contractor. The general principle as to the discharge of a duty by the engagement of an independent contractor is correctly described in Clerk & Lindsell on Torts:[4]
Introduction If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work. Furthermore, since the employees of the contractor, whilst acting as such, stand in the same position as their employer, it is equally the case that the employer of the contractor is not liable for the torts committed by the contractor’s employees. Of course, even though the damage complained of may have been caused may also be attributable to the negligence or other personal fault of the employer. If, for example, he has negligently selected an incompetent contractor, or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable. Again if the employer has authorised or ratified the independent contractor’s tort then, on normal principles, he will be jointly liable for that tort.
(citations omitted)
[4] J Murphy, Vicarious Liability in M Jones et al (eds), Clerk & Lindsell on Torts, 21st ed, Thompson Reuters, London, 2014 at [6-59].
In Leichhardt Municipal Council v Montgomery,[5] Gleeson CJ summarised the position as follows:
[9]In practice, the difference between a duty to take reasonable care and a duty to ensure that reasonable care is taken matters where it is not an act or omission of the defendant, or of someone for whose fault the defendant is vicariously responsible, that has caused harm to the plaintiff, but the act or omission of some third party, for whose fault the defendant would not ordinarily be vicariously responsible. If a negligent act or omission is that of a defendant, or a person for whose fault the defendant is vicariously responsible (such as an employee), no problem arises. Again, if the nature of a defendant's responsibility is such that it can be discharged lawfully or properly only by the defendant personally, an attempted delegation would be irrelevant. Some responsibilities are non-delegable in the sense that it is of their essence that they be performed by a particular person, perhaps because of trust or confidence reposed in that person. In some cases, a duty to take care involves a duty to act personally. That kind of non-delegability should not be confused with a case where the engagement of a third party to perform a certain function is consistent with the exercise of reasonable care by a defendant, but the defendant's legal duty is not merely to exercise reasonable care but also (if a third party is engaged) to ensure that reasonable care is taken. In such a case, the third party's failure to take care will result in breach of the defendant's duty. The legal consequence is that the circumstance that the third party is an independent contractor does not enable the defendant to avoid liability. It is because of its practical effect of outflanking the general rule that a defendant is not vicariously responsible for the fault of an independent contractor that the identification of this special responsibility or duty is important.
[5] (2007) 230 CLR 22 at 29, [9].
In Leighton Contractors Pty Ltd v Fox,[6] the High Court considered the duty of care owed by the principal contractor in the construction of a building to other contractors and their employers. The following paragraph from the judgment of the Court contrasts the non-delegable duty of the principal contractor to its employees and its ordinary duty of care to others:[7]
[21]It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force. Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.
(citations omitted)
[6] (2009) 240 CLR 1.
[7] (2009) 240 CLR 1 at 12, [21] per French CJ, Gummow, Heydon, Hayne and Bell JJ.
It follows that a principal who owes an ordinary duty of care will discharge that duty by exercising reasonable care in the selection, contracting and monitoring of the independent contractor. A principal who breaches that duty is liable only if that breach is a material cause, or contributing factor to the occurrence of an injury to another. A breach of that duty does not vitiate the ‘delegation’ thereby burdening the principal with the equivalent of the non-delegable duty to ensure that reasonable care is taken.
An occupier has an evidential onus on the issue of its engagement of an independent contractor. As a practical matter it is necessary to cast that onus on the occupier as a defendant. A defendant cannot stand mute while the plaintiff proves that the premises were left in an unsafe state only to later submit that there is no case to answer because the plaintiff’s evidence has not excluded the possibility of discharge by taking reasonable care in the engagement of another to perform the duty. That evidential onus was discharged in this case by proving the contract and by the testimony of Mr Krndija.
There was no evidence of negligence in selecting Reflections or in fixing the contractual terms. Indeed the appellant’s primary case was that the respondent was negligent in not monitoring and enforcing those terms. However, the appellant did not adduce evidence from which that negligence could be inferred. The evidence that on this particular occasion, a period of some 30 minutes elapsed before a cleaner visited the area of the spill does not support that inference. An occasional and minor failure to comply is not evidence of a systemic failure which should have been noticed and rectified. Nor does the absence of records on whether the contractual ‘KPIs’ were met prove negligence in monitoring. Mr Krndija’s evidence that there were regular meetings and spot checks is positive evidence of proper monitoring. If those checks regularly revealed that the cleanliness of the premises was unsatisfactory, a closer monitoring of the electronic record of cleaning rotations might have been called for. However, that was not the evidence. Nor was there evidence that other similar occupiers would have checked the electronic records. Finally, there was no evidence of what those records would have revealed. There was no evidential basis for the proposition that it was unreasonable not to monitor the 20 minute inspection routine more closely.
In any event, the respondent would incur no liability unless its negligence was a material cause of the appellant’s injury. The appellant failed to prove that causal link. In particular, the evidence showed that there was a cleaner in the vicinity of the fall just minutes before it occurred.
I acknowledge that in some circumstances the fact of breach of duty may be evidence from which the causation of injury can be inferred.[8] However, when the consequence of a negligent act is mediated by the conduct of an independent third person, the strength of that inference is much reduced. In the circumstances of this case, even if the respondent had been negligent in its monitoring of the 20 minute inspection routine, that fact alone would not support an inference that there was causal connection. It would be necessary to show that the proper degree of monitoring Reflection’s performance of the contract would have so altered Reflections conduct such that the spill on which the appellant slipped would have been cleaned up before she walked over it. Not only did the appellant not call any such evidence but the fact that a cleaner was present minutes before precludes such a finding.
[8] Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534 at 554, [61] per Gray J.
Vicarious liability (Ground 3)
In the absence of a relationship of agency, it is difficult to attribute liability for the acts of a contractor who is conducting its business through employees. That is because the management of that business and in particular the management of its employees involves the balancing of competing interests and objectives. There are also substantial difficulties in attributing liability to a principal for the acts or omissions of the employees of its independent contractor. That is because the principal has no right to control the employees of its contractor, or even to select which of its employees will perform certain functions.
There were no attributes of the relationship between the respondent of Reflections in this case which could overcome those difficulties.
Conclusion
The appellant’s claim must be dismissed.
PEEK J.
Introduction
At approximately 4:40pm on 14 November 2009, Mrs Stringer (the first plaintiff, to be referred to as the plaintiff) and Mr Stringer (the second plaintiff), were together with their children at the West Lakes Westfield Shopping Centre (West Lakes Westfield). The plaintiff had temporarily gone a separate way from her husband and children but her husband called her on her mobile phone and asked that she meet them in front of the David Jones Department Store (David Jones). While walking towards David Jones down one of the centre’s aisles, Mrs Stringer slipped on some liquid spilt on the floor and fell, causing herself serious injuries. (The liquid spill on which the plaintiff actually slipped, and its position, will be referred to respectively as “the causative liquid spill” and the “fall site”).
At the time of the fall, a cleaning company named Reflections Cleaning Company (Reflections) was contracted by Westfield Shopping Centre Management Co (SA) Pty Ltd (the defendant) to clean the shopping centre. The defendant pleaded that it had delegated its duty of care to maintain the premises in a safe condition to Reflections.
CCTV footage showed that approximately one minute prior to the fall, a Reflections cleaner had attended at the approximate location of the fall (the first Reflections cleaner). Apparently, the purpose for that attendance was to change bin bags by removing a full bin bag and substituting a fresh empty bag. The plaintiffs’ case at trial was that the first Reflections cleaner had either dropped some liquid on the floor during the bag changing process which became the causative liquid spill or alternatively, if the causative liquid spill was already on the floor prior to her attendance, had failed to observe it and clean it up. The plaintiffs contended that, whatever the precise origin of the causative liquid spill which caused her to fall, the defendant was liable as occupier of the premises. The plaintiffs further contended that even if the defendant had delegated its duty of care to Reflections (which was denied), the defendant was nonetheless vicariously liable for the negligence of Reflections or, in the further alternative, liable for breaching s 23 of the Occupational Health Safety and Welfare Act 1986.
The findings of the trial Judge
The Judge’s findings on liability were summarised by his Honour as follows:[9]
[9] [2017] SADC 35, [234].
• The first plaintiff was seriously injured on 14 November 2009 when she slipped and fell while walking in the David Jones aisle at the ‘Westfield – West Lakes’ shopping centre.
• The first plaintiff had slipped on some liquid which had been deposited by a cleaner employed by Reflections, the independent contractor engaged by the defendant.
• That employee had created a hazard by depositing that liquid shortly before the first plaintiff fall, and she had negligently failed to clean the floor or remove the deposit.
• Reflections, as employer of that cleaner would have, if it had been joined as a defendant, been found to be vicariously liable for the negligence of the cleaner.
• There was nothing more that the defendant could reasonably have been expected to do in the seconds between the deposit of the liquid and the first plaintiff’s fall.
• In any event the defendant had discharged its duty of care as occupier by using proper skill and care in engaging Reflections to undertake the cleaning of the premises; by imposing appropriate cleaning and inspection obligations upon it; and by reasonably monitoring Reflections with its contractual obligations.
• The defendant was not liable to the plaintiff in negligence pursuant to s 20 of the Civil Liability Act 1936 (SA).
• The defendant was not vicariously liable to the plaintiffs for the negligence of Reflections and/or its employee.
• The defendant was not liable to the plaintiffs pursuant to the statutory duty of occupiers in s 23 of the Occupational Health, Safety and Welfare Act 1986 (SA).
The grounds of appeal
The plaintiffs’ grounds of appeal are as follows:
1.In rejecting the unchallenged evidence of the Plaintiffs’ [sic] about the nature of the substance as well as the amount of the substance left on the floor at the time of the Plaintiff’s fall [reasons 115-125] and in finding that the substance had been deposited at the site of the Plaintiff’s fall by the cleaner at about 4:36pm [reasons 115] the learned Trial Judge has denied the Plaintiff’s [sic] procedural fairness.
2.In finding (Reasons 234) that the Defendant had discharged it’s duty of care as occupier by imposing appropriate cleaning and inspection obligations and by reasonably monitoring Reflections with its contractual obligations, the learned Trial Judge has failed:
2.1. to properly address the absence of evidence from the Defendant to show that it relevantly monitored Reflections’ performance and, in particular the complete lack of detail as to how the Defendant monitored the 20 minute requirement at any time; and
2.2. to properly address the absence of evidence on whether the 20 minute inspection routine was maintained.
3.In finding (Reasons 234) the Defendant was not vicariously liable to the Plaintiffs the learned Trial Judge has failed to properly consider the whole of the relationship arrangement between the Defendant and Reflections and the circumstances of the wrongful acts resulting in the Plaintiff’s injuries.
4.In finding (Reasons 234) that the Defendant was not liable to the Plaintiffs pursuant to the Statutory duty of occupiers in Section 23 of the Occupational Health and Safety and Welfare Act 1986 (SA), the learned Trial Judge has failed to take into account:
4.1. the size of the centre;
4.2. the volume of traffic; and
4.3. the well recognised risk to safety
5.The learned Trial Judge’s findings as referred to in 1 to 4 herein, as a whole have been affected by operative delay (noting the Hearing concluded on 8 May 2015 and judgment was delivered on 18 April 2017) and in that context his reasons are inadequate.
Civil appellate review generally
A trial Judge has primary responsibility for factual adjudication. The Judge’s findings should not be disturbed unless good and sufficient reason to do so is positively established by the plaintiff. In Fox v Percy,[10] the plurality, after referring to Warren v Coombes,[11] described the three later decisions of Jones v Hyde,[12] Abalos v Australian Postal Commission[13] and Devries v Australian National Railways Commission[14] as a “trilogy” and observed:[15]
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. [Footnotes omitted]
[10] (2003) 214 CLR 118.
[11] (1979) 142 CLR 531.
[12] (1989) 63 ALJR 349.
[13] (1990) 171 CLR 167.
[14] (1993) 177 CLR 472.
[15] Fox v Percy (2003) 214 CLR 118, [26]-[28] (Gleeson CJ and Gummow and Kirby JJ), applied by this Court in John Diversey Australia Pty Ltd v Ferenczfy [2013] SASCFC 59, [15] (Gray and Sulan JJ, with whom White J agreed).
In Rail Commissioner (formerly TransAdelaide) v Warner I referred to this trilogy of decsions and went on to note that there are two regularly encountered approaches leading to appellate interference with factual findings of a trial Judge:[16]
The first approach refers to the fact that a trial Judge’s finding may be overturned by establishing that it is based on evidence that is “glaringly improbable”. Here, the emphasis is on the exceptionally fragile nature of the evidence that forms the basis of the finding and the degree of required weakness is illustrated by phrases such as “glaringly improbable”. In the present case it could not seriously be said that, standing by itelf, the evidence of McAlpine is “glaringly improbable”.
The second approach refers to an appellate reversal of “findings based on evidence that is opposed to established facts or incontrovertible evidence or contrary to compelling inferences”. Here the emphasis is on the exceptionally solid nature of clearly identified objective evidence with which the Judge’s finding is inconsistent…
Such evidence must be quite inconsistent with the evidence of the witness(s) accepted by the trial Judge and have a greatly superior claim to reliability. Such was the position in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq)[17] with the clear trail of documentation and in Fox v Percy[18] with the independent evidence of vehicle skid marks …
[16] [2011] SASCFC 90, [91]-[93].
[17] (1999) 160 ALR 588.
[18] (2003) 214 CLR 118.
I will consider the present case against the background of these principles.
GROUND 1 OF APPEAL
In rejecting the unchallenged evidence of the Plaintiffs’ [sic] about the nature of the substance as well as the amount of the substance left on the floor at the time of the Plaintiff’s fall [reasons 115-125] and in finding that the substance had been deposited at the site of the Plaintiff’s fall by the cleaner at about 4:36pm [reasons 115] the learned Trial Judge has denied the Plaintiff’s [sic] procedural fairness.
The plaintiffs here challenge the Judge’s findings in relation to: the nature, colour and amount of the substance; whether the substance was deposited by the first Reflections cleaner; and the precise location of the slip by the plaintiff.
The plaintiffs also seek to advance a new theory, not referred to at trial, that the Judge failed to consider a possibility that there were two spillages near the site of the fall, one which was already present prior to the time of the first Reflections cleaner’s attendance and the other which was deposited as a result of that cleaner’s attendance; I will return to this theory a little later.
The evidence in relation to the topics of the actual circumstances of the slip and fall, the colour and appearance of the liquid spill, and how it came to be deposited at the site, arose from four sources. First, the evidence of Mrs and Mr Stringer. Second, the CCTV footage tendered at trial as exhibit P1. Third, the West Lakes Westfield incident report tendered by the plaintiffs as exhibit P2 which includes a statement of Ms Foreman, the second Reflections cleaner who attended to clean up the spill after Mrs Stringer had fallen (the second Reflections cleaner). Fourth, the testimony of the witness Mr Durante Jones. I address each in turn.
Evidence of Joanne Lee Stringer (the first plaintiff)
Mrs Stringer gave evidence that on Saturday, 14 November 2009, she and her husband took their children to West Lakes Westfield. She said that Mr Stringer had taken the children to a video shop while she went elsewhere. Mr Stringer then rang her on her mobile phone to say that one of the children had become agitated, and asked her to meet them in front of the David Jones. Mrs Stringer gave the following evidence as to how she came to slip and fall:
AI was walking toward David Jones. I walked and my right foot slipped forward. It was like I had slipped through a puddle, went and slipped forward, straight out in front of me and my ankle twisted and I landed on the ground with my elbows (INDICATES) bent. It was just on the right and when I come down, I scraped my knuckles on the bin, so I landed with my right leg stretched out and on my ankles.
QLooking at that still, that’s a bit hard to see but where was the bin located as far as you can recall?
AThe bin was on my right-hand side and there was a lounge area next to it, so it was on the corner set up like a square, so as I walked past, I’ve come past it. As I went down, I scraped my knuckles on the side. I think it’s directly to the right of me (INDICATES).
She gave evidence that she slipped on “coke or a clear fluid… a watery substance”, which was “light brown, grey”. She said it “was not milkshake or anything like that”. Her observations were made after the fall; she saw no spill prior to falling.
It is to be noted that, in volunteering the “not a milkshake comment”, the plaintiff confirmed that she was well aware of the content of exhibit P2 which will be considered below.
The plaintiff went on to say that she considered that the liquid substance was the cause of her fall as it “felt moist”, and “you could see the drag mark from where… my foot had gone through and turned. It was like a skid mark”. She thought the puddle was larger in size than her foot, and estimated it was eight to ten inches wide.
Mrs Stringer also gave evidence that after her fall, security guards attended, and Mr Stringer discussed the cause of her fall with them. She said that “they were all looking at the fluid on the floor. They could see where I had slipped through”. She gave evidence that she remembered “a cleaner coming back”, who “cleaned up the mess”.
Evidence of Mr Martin Stringer (the second plaintiff)
Mr Stringer’s evidence as to the circumstances preceding the fall was consistent with that of the plaintiff. He was not present at the time of the fall, and only came to learn of it when Mrs Stringer called and told him that she had slipped and hurt her ankle. Mr Stringer gave the following evidence as to what he observed when he reached the scene of Mrs Stringer’s fall:
Q What did you observe there?
AOnce I got there I saw that she was in excruciating pain and I think the lady from the store had a little tub that she’d put her ankle up because you could see the damage to the ankle and she was just in agonising pain and I just – she just – I said ‘How did it all happen?’ and she just said she’d slipped and she’d also cut her hand on the bin where she’d slipped. And so I just had a quick look around and I noticed that there was liquid on the floor and I did take some pictures with my mobile phone and I think the lady from the store had mentioned that she’d contacted security and it seemed like a – quite a while before security had actually got there.
QPerhaps I might just stop you there. You said – what did you see on the floor, you saw –
AIt seemed to be some clear kind of liquid and I could see where Jo’s foot had gone through the liquid. You could see the slip mark where she’d slipped through the liquid.
Q When did you first notice it?
AProbably a few minutes after I’d got there and I had a bit of a quick look around to see. I think the gentleman that was there, he was actually talking to me and he had seen –
…
Q Don’t say what was said but you were speaking to somebody there, is that right?
A Yep.
Mr Stringer also gave evidence as to a cleaner subsequently attending to clean up the floor:
Q So what happened when security got there?
AWe just explained to him, you know, he obviously wanted to render first aid I think first and I think he’s already – I’m not sure if he already or he then radioed for an ambulance and then I kind of asked him ‘Well what’s happening?’, you know, like and he explained to me that he was going to get an ambulance on its way. Then I think the next thing he radioed for someone to come and clean up the mess.
Q What happened after that?
AJust I mainly spent time with Jo, trying to comfort her and then it wasn’t too long, I think, then the ambulance had come but then – I think before the ambulance actually arrived the cleaner had actually got there to clean up anything that was on the floor.
Q And you saw that?
A Yep.
Exhibit P1 - the CCTV footage
The defendant’s CCTV footage was tendered by the plaintiffs as exhibit P1. It depicted the events occurring in the vicinity of the fall site between 4:00pm and 5:00pm on 14 November 2009, including the following:
-Between 4:00pm and 4:36pm, no person appears to slip in the area of the fall site or to inspect that area;
-At 4:36pm, the first Reflections cleaner arrives from the direction of David Jones, pushing a trolley containing cleaning items including a mop. She stations the trolley in the middle of the aisle, roughly mid-way between the “Cards and Gifts” shop and the bin. She then removes the inner casing of the bin, places it next to her trolley, and then removes a bag from the bin, resting it momentarily on the ground behind the trolley before she places it on the trolley. She can then be seen to pause before she looks down at the floor by her feet, behind the trolley;
-At 4:37pm, the first Reflections cleaner moves to the left of the trolley and re-positions a full bin bag on the trolley, causing the mop to fall to the floor to the front/right of the trolley. She leaves the mop where it fell and moves to the front/right of the trolley and picks up a cloth from the trolley, before moving to behind the trolley. She then bends down out of sight, seemingly cleaning the floor behind it; she does not appear to clean underneath or in front of it;
-At 4:38pm, the first Reflections cleaner places a new bin liner in the bin and places the inner casing of the bin back in the metal exterior case. She then walks around the trolley and picks up the mop from where it had fallen on the front/right side of the trolley;
-At 4:38, the first Reflections cleaner leaves, pushing the opposite side of the trolley in the direction from which she approached, towards David Jones;
-At 4:39pm, the plaintiff enters the screen walking towards David Jones, and slips, falling backwards onto her elbows, her body twisting to the right;
-At 4:44pm, security staff arrives;
-At 4:49pm, the second Reflections cleaner arrives. She places a yellow caution sign on the floor, and mops the floor in the general area surrounding where the first cleaner’s trolley had previously been positioned; and
-At 4:56pm, the second Reflections cleaner leaves in the direction from whence she had come.
While useful, the CCTV footage has clear limitations, including that the precise position where Mrs Stringer slipped is not clear; no liquid spill may be seen; the bin itself is largely obscured by the Westfield advertisement placed in front of it; and vision of a large portion of the first cleaner’s activity is blocked by the trolley. However it is clear that the fall site is indeed proximate to the area which had been under the first cleaner’s stationery trolley when she performed the duties described above.
The evidence of Mr Durante Jones
Mr Durante Jones gave evidence that he was present at the West Lakes Westfield on 14 November 2009 when he “saw a woman walk past and slip over some liquid on the ground, near a bin”. He gave evidence as to the events leading up to the slip as follows:
Q What do you recall in the time leading up to the person coming and slipping over?
AIn the time leading up to the person slipping over I was waiting in the aisle way, I was seated. I heard a cleaner behind me, I was quite close to a bin, they had changed the bin over, with the trolley, and I recall hearing a cup fall to the ground and the person procrastinated a little bit.
QAnd I think you’re saying you recall hearing things, are you now simply talking about something that you saw? So, when you’re talking about the person procrastinating, what did you see or assume?
A Sorry, I heard them procrastinate to themselves.
Q In what sense, what did you hear that made you think that?
AI just heard them grumble, or, you know, say something underneath their breath, this was after hearing something drop whilst they were changing the bin.
Q What did that person do after changing the bin?
A They finished changing the bin and then they left the area.
He gave evidence that Mrs Stringer slipped over “just a couple of minutes” later, “within five minutes, if less”. He described the subsequent events thus:
She fell over and she fell quite heavy, I had gone over and asked if she was okay and if she needed help, some security guards arrived on the scene, there was two of them, they stood around the spill and used their walkie talkies and at that point I suggested that the woman who fell, her partner had arrived, I said ‘You should maybe take a photo of that spill’, because I could tell that she was quite badly hurt. And at that point some cleaners did come along and they cleaned it up and around then was when I left the scene
Exhibit P2 - the incident report
An incident report compiled by an employee of West Lakes Westfield was tendered as part of exhibit P2. There are a number of inaccuracies in this report, including: the incorrect spelling of Mr Durante Jones’ name, and an assertion that Mr Jones had stated that Mrs Stringer was with her children at the time. (Mrs Stringer gave evidence that she was alone at the time, as did Mr Jones, and this is clearly supported by all other evidence including the CCTV footage).
Attached to the incident report was a signed statement of Ms Foreman (the second Reflections cleaner) who attended to clean up the spill after Mrs Stringer had fallen. It appears as follows:
Statement of DEBRA FOREMAN Employed by REFLECTIONS Date of Incident 14/11/09 Time called to spill/incident 4.40pm Location of spill/incident CARDS AND GIFTS Person who notified you of spill/incident C1 LUCY Details of spill/incident CALLED TO A SPILL. SAW
LADY ON FLOOR
MILKSHAKE SPILL MOPPED
IT UP THEN WENT HOMETime area previously cleaned Any marks present? Give details MILKSHAKE SPILL How often is area cleaned 15-20 MINS Print name & sign DEBRA FOREMAN [signed] Time & date statement completed 1.35pm 15/11/09
Thus Ms Foreman, stated that the spill occurred near “Cards and Gifts” (the shop on the left side of the mall), and referred to the spill twice as a “milkshake spill”. The meaning of the note would appear to be: “I was called to attend to cleaning a spill near the shop ‘Cards and Gifts’. I attended there and found a lady prostrate on the floor. Nearby I saw a milkshake spill which I mopped up. I then went home.”
The plaintiffs’ case at trial as to the circumstances of the fall
The plaintiffs presented their case at trial on the basis that it did not matter whether the first Reflections cleaner failed to notice the presence of the causative spill that was already there or accidentally deposited the causative spill. Thus the plaintiffs’ written opening statement was as follows:
The plaintiffs say that the first cleaner was negligent in failing to properly inspect the area in question, failing to detect the presence of the liquid in the area, failing to take proper steps to remove the danger presented by the spilled liquid, or alternatively, directly causing the dangerous situation by allowing liquid to leak from the rubbish bin bag on to the mall floor.
Consistently with that approach, in the plaintiffs’ counsel’s final address, there was reference to only one spill:
On the issue of negligence, I don’t know how much you want to hear from me on that. It seems that the cleaner was clearly negligent in either dealing with the spill itself or failing to notice it. (Emphasis added)
This was similarly suggested in a document titled “the Submissions of the Plaintiff – Summary”:
There seems little doubt that the cleaner who attended to the bin located adjacent to the scene of the first plaintiff’s fall was negligent in either creating the spill on which the plaintiff slipped, or failing to notice liquid on the floor and taking appropriate action.
Consideration of the Judge’s findings relevant to ground 1 of appeal and the plaintiffs’ submissions concerning them
I will deal with various aspects of the Judge’s findings and then with the plaintiffs’ submissions concerning such aspects.
The Judge’s findings concerning the positions of the slip and the fall
The Judge summarised the evidence as to the positions of the slip and the fall and made the following findings:[19]
As to the witnesses, I have no doubt that each of them were witnesses of truth. I also have no doubt that each did his or her best to give a reliable account of the events. The fact remains that they were each giving evidence about events which had occurred 5½ years earlier.
In my opinion the best evidence of the point of the fall is the CCTV footage.
It is plain that the first plaintiff slipped and fell at a point approximately midway between the rubbish bin on her right and the entrance to the ‘Cards and Gifts’ shop on her left. The precise point of the slip was between the point where the head of the mop landed, and that area apparently wiped by the cleaner.
I am satisfied that the point of the slip was not ‘close’ to the rubbish bin. I reach that conclusion from the CCTV footage. This is also consistent with the report of the second cleaner. That report was clearly admissible as a business record. There was no submission that her report was self-serving nor too brief to be of value. The report is to a large extent confirmed by the CCTV footage.
[19] [2017] SADC 35, [103]-[106].
The Judge’s findings as to how the causative liquid was deposited on the floor
The Judge summarised the evidence as to how the causative liquid was deposited on the floor and found that it was accidentally deposited on the floor by the second Reflections cleaner at 4:36pm. His Honour stated:[20]
There are obvious explanations for liquid being deposited at the point of the fall, which I have identified. They are as follows:
Firstly the cleaner may have dropped some liquid from the refuse bag which she had collected from the rubbish bin. As I have explained the cleaner could be seen to attempt to wipe the floor at the rear of the trolley. It was not however clear whether she successfully wiped the floor underneath the trolley.
Secondly the cleaner may have left the site wet after apparently cleaning the floor with the towel or cleaning rag; or
Thirdly that when the cleaner undoubtedly caused the mop to fall to the ground, this was the mechanism for the liquid to be deposited.
There can be no doubt that the subject terrazzo floor, in the absence of liquid, was a safe surface for a customer of the premises to walk on. For well over 30 minutes before the cleaner arrived, approximately 350 customers had passed over the site of the fall, without anyone appearing inconvenienced. The overwhelming inference is that had there been any significant liquid on the floor on that aisle before the arrival of the cleaner, this would have been observed during that period of time. Save for the actions of the cleaner, the CCTV footage did not show any activity which could or even may have led to liquid being deposited on to the floor.
I find on the balance of probabilities, that the subject liquid substance was not deposited on the floor of the aisle before the cleaner arrived at about 4.36pm.
I find that the plaintiff did slip on some liquid substance. I have no doubt that the substance had been deposited by the cleaner at about 4.36pm. On the balance of probabilities it was not merely a wet floor following the cleaner’s attempts to wipe the floor.
[20] Ibid [109]-[115].
The Judge’s findings as to the colour or appearance of the causative liquid
As to the colour or appearance of the causative liquid, the Judge later found:[21]
The second cleaner’s report supports the conclusion that there was a liquid substance, albeit of milkshake in appearance, when she attended the aisle after the accident.
The first plaintiff had denied that it was the remnants of a milkshake. I appreciate that the first plaintiff was not challenged on most of her evidence. This does not mean that the Court is obliged to accept all of her evidence. It may be rejected if ‘inconsistent with other evidence accepted by the Court, or if it is inherently incredible.[22]
She had described a puddle, larger than the size of her foot. This was her recollection of her observations after the fall, when she was in pain, in shock, and assisted by those who had come to her aid.
In my opinion, the delay since the subject fall has adversely affected the reliability of some of the matters deposed to by the first plaintiff. I do not accept the reliability of the first plaintiff’s account of the size of the ‘puddle’. She did not see any liquid until after her fall. It is improbable that it would have been that size before the fall or it would have been seen by the first plaintiff and indeed the other four customers who had walked over it just seconds before the first plaintiff fell.
The second plaintiff deposed to the liquid as being ‘clear’. This was of course after the event, and at a time when he was concerned about the first plaintiff. While I do not need to determine[23] the colour or type of liquid, I prefer the description of it given by the second cleaner in her report. (Emphasis added)
[21] Ibid, [115]-[119].
[22] See Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234, [105].
[23] Reid v Target Australia Pty Ltd [2014] NSWCA 60, [54].
The plaintiffs’ submissions on appeal concerning the Judge’s findings
The plaintiffs’ first submission is that “although the Judge found that the fall did not occur near the bin, that finding could not stand with the plaintiff’s unchallenged evidence that she injured her hand on the bin as she fell.”
I consider that it was open to the Judge to prefer the CCTV footage as the best evidence on the topic, and I agree with his Honour’s analysis of what is depicted in that footage. As the Judge observed, the CCTV footage was not affected by the passage of time, nor by the “pain”, or “shock” of the witnesses.[24]
[24] [2017] SADC 35, [117].
In any event, I do not consider that it is established that the evidence of the plaintiff concerning her fall is, of itself, inconsistent with his Honour’s findings as to the location of the causative liquid spill. The word ‘close’ is a relative term, as his Honour impliedly emphasised by the use of inverted commas in the italicised passage above. As the CCTV footage shows, the plaintiff fell backwards and slightly to her right[25] in circumstances where there could well have been some distance between the location of the causative liquid spill and Mrs Stringer’s outstretched hands as she fell backwards; her body may well have twisted such that her hands were closer to the bin than her feet were. Given the distance between the bin and the “Cards and Gifts Shop” could be no more than three metres; in relative terms, the location of the causative liquid spill being at least half a body’s length in distance from the bin could fairly be described as “not ‘close’”.
[25] Mrs Stringer said that she “landed on the ground with [her] elbows … bent.”
The plaintiffs’ second submission is that the Judge’s finding that the causative liquid spill was “milky in colour” (contrary to the evidence of the plaintiff that it was not) was erroneous. It was submitted that this finding was unfair because Mrs Stringer “was never challenged about this. There was no cross-examination to suggest that was wrong”; and it was suggested that the decision of the High Court in Stead v State Government Insurance Commission (Stead)[26] is applicable.
[26] (1986) 161 CLR 141.
The principles stated in Stead are well known, as are the facts of that case, which were very different to the present. Procedural fairness in circumstances such as the present may be established by demonstrating that the party had knowledge of the existence of an issue. One way by which such knowledge may be demonstrated is by the putting of the matter to the party in cross-examination; but that is not the only way that it may be demonstrated. As examples, such knowledge may be demonstrated by the giving of prior notice of the issue to the party[27] or by the fact that the issue is inherently in issue due to the nature of the case.[28]
[27] Marelic v Comcare (1993) 47 FCR 437, 444; Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, 207-210.
[28] Thomas v Van Den Yssel (1976) 14 SASR 205, 207; Hoskins v Repatriation Commission (1991) 32 FCR 443, 446-7; Porter v Oamps Ltd (2004) 207 ALR 635, [12].
In the present case, the facts included the following. First, the evidence of the second Reflections cleaner’s incident report was tendered by the plaintiffs themselves who were therefore fully appreciative that they were placing two inconsistent versions before the Judge. If it were thought at trial that matters of whether the causative liquid spill was, or was not, of milkshake appearance were significant, the plaintiffs had every opportunity to garner and tender evidence that the plaintiffs’ description was correct and that the second Reflections cleaner’s description was wrong.
Second, the reason why no such effort was made is quite obvious. At trial, the case for the plaintiffs was that it did not matter whether the causative liquid spill was deposited prior to the attendance of the first Reflections cleaner or was deposited accidentally by the first Reflections cleaner herself. In other words, at trial the case was presented by the plaintiffs on the basis that a finding that the causative liquid spill was deposited accidentally by the first Reflections cleaner herself was open to the Judge – and this was the finding that the Judge made.
I conclude that there was no departure from the rules of natural justice here. But even if there were some such departure, I consider that the present case is governed by the following passage in the judgment of Mason, Wilson, Brennan, Deane and Dawson JJ in Stead:[29]
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial ...
[29] (1986) 161 CLR 141, 145.
The plaintiffs’ new theory of two indendent and co-existing spills
The suggested importance of a finding that the causative liquid spill was “milky in colour” is related to the fact finding process concerning how the causative liquid spill was deposited on the floor. Thus, the plaintiffs’ outline of argument asserts that an error concerning the colour or appearance of the causative liquid spill led the Judge to reason that:
… because the substance was milky in colour, it can be inferred that it was dropped by the cleaner as she emptied the bin. The corresponding inference is that it was not there on the floor before she came to the bin.
The plaintiffs continue that:
If the substance was clear in colour, that is evidence tending to favour the proposition that the substance was there before the cleaner’s arrival. If the substance was milky in colour (as the second cleaner said in her incident report) it is far from conclusive that it came from the bin and the cup that Mr Jones heard drop to the floor.
It appears that the purpose of the plaintiffs’ submissions that the Judge erred in relation to his finding concerning the colour or appearance of the liquid is to found or support a submission that:
… it is possible that there could have been two spillages (one before and one at the time of the bin being emptied) and the plaintiff slipped on the one that was not cleaned up at the time of the bin being emptied.
After all (1) the post-accident report did not describe a spillage with a slip mark as described by both plaintiffs and (2) although the Judge found that the fall did not occur near the bin, that finding could not stand with the plaintiff’s unchallenged evidence that she injured her hand on the bin as she fell.
This assertion of two independent spills, both bold and belated, is entirely at odds with the case put by the plaintiffs’ counsel at trial. At no stage at trial was it suggested that not only did the first cleaner fail to observe a spill, but also that the first cleaner created a second independent spill. Rather, the plaintiffs’ case was that these were alternative hypotheses, which led to a finding of negligence irrespective of which version the Judge was to prefer; as to this aspect, see the extracts reproduced above from the plaintiffs’ opening statement, the plaintiffs’ final address and the document “the submission of the Plaintiff – Summary”.
Further, it was never suggested by either of the plaintiffs in their evidence that the spill which they witnessed the second cleaner clean up was different to the causative spill. Indeed, quite the contrary; the plaintiffs’ case was positively that the spill that they saw the second Reflections cleaner clean up was in fact the spill that had caused the fall. Thus in the document titled “Plaintiffs’ Opening Statement”, counsel wrote:
As Joanne walked past the area of the rubbish bin, she slipped and sustained her injuries. She hit her hand on the bin as she fell.
She was attended to and assisted by staff from an adjacent shop before security staff arrived on the scene. Security staff then summoned another cleaner, a different cleaner from the one who had attended immediately prior to the incident (“the second cleaner”), to clean the area of this spill. (Emphasis added)
And Mrs Stringer stated in evidence (extracted above):
Q What about after the security people arrived?
ASo someone got, I don’t know who, someone got some ice for my ankle and I think they did ask me if I could stand but I couldn’t. I was in quite a bit of pain by then. Martin was talking to the security people. They were all looking at the fluid on the floor. They could see where I had slipped through and then the girl from the newsagency was talking, but then I do remember them coming, a cleaner coming back.
Q So what did the cleaner do?
A Cleaned up the mess. (Emphasis added)
Similarly, Mr Stringer’s gave the following evidence:
AIt seemed to be some clear kind of liquid and I could see where Jo’s foot had gone through the liquid. You could see the slip mark where she’d slipped through the liquid.
Q When did you first notice it?
AProbably a few minutes after I’d got there and I had a bit of a quick look around to see. I think the gentleman that was there, he was actually talking to me and he had seen –
…
Q What happened after that?
AJust I mainly spent time with Jo, trying to comfort her and then it wasn’t too long, I think, then the ambulance had come but then – I think before the ambulance actually arrived the cleaner had actually got there to clean up anything that was on the floor.
Q And you saw that?
A Yep.
Both plaintiffs clearly saw the second cleaner attend to “the mess”; there was no suggestion whatsoever that the second Reflections cleaner attended to a different spill than the one described by the plaintiffs.
In short, the plaintiffs’ new theory requires what is unlikely in the extreme, namely that there were two independent spills at the fall site, the first being a “clear” spill (on which Mrs Stringer slipped and which she later clearly observed with the slip mark running through it) and the second spill, being a “milkshake” spill upon which she did not slip but which was the only spill that the second cleaner saw near the prostrate plaintiff, and the only spill which she proceeded to clean up.
It is easy to see why this theory was never mentioned to the Judge and why it did not independently suggest itself to him. I dismiss it.
Finally, it is to be noted that the Judge made clear that his process of reasoning concerning his findings as to how the causative liquid spill was deposited on the floor did not require him to make a finding as to the colour or appearance of the causative liquid spill. This is obvious from both his Honour’s specific statement reproduced above at paragraph [48], that he did “not need to determine … the colour or type of liquid” and also from the fact that his Honour had previously reached his conclusion as to how the causative liquid spill was deposited on the floor prior to, and independent from, his later remarks concerning the colour or appearance of it.[30]
[30] [2017] SADC 35 [109]-[115].
Disposition of ground 1 of appeal
Having regard to all of the evidence, I consider that none of the errors asserted by the plaintiff are made out. I consider that the Judge was correct in finding that the spillage was caused by the second Reflections cleaner, and in concluding as follows:[31]
In my opinion it is probable from the facts, as a whole, that the liquid was deposited on the floor by the cleaner when she emptied the refuse bag into the trolley.
I find on the balance of probabilities that when she did clean the floor behind the trolley, she did not adequately clean it under the trolley. This is not mere speculation. She would not have been able to look under the trolley because of its position. Had she moved the trolley, she would have observed the liquid which was left. It is probable that she was distracted from that exercise by having to collect the mop.
In my opinion there can be no doubt that the first Reflections cleaner had created the hazard and had failed to properly clean it up. Until that event the aisle was free of spillages. Accordingly this negligence by the cleaner was ‘a singular event of carelessness’ by her.
[31] Ibid, [123]-[125].
DELAY BETWEEN TRIAL AND JUDGMENT: GROUND 5 OF APPEAL
In coming to the above conclusion, I have borne in mind that the trial commenced on 4 May 2015, judgment was reserved on 8 May 2015 and judgment was delivered on 18 April 2017, nearly two full years after reservation. Ground 5 of appeal asserts that:
The learned Trial Judge’s findings as referred to in 3.1 to 3.4 herein, as a whole have been affected by operative delay (noting the Hearing concluded on 8 May 2015 and judgment was delivered on 18 April 2017) and in that context his reasons are inadequate.
However, it is to be remembered that such a complaint is “not itself a ground of appeal”, but rather, “relevant to the approach to be taken to the review of the findings of the trial judge”.[32]
[32] John Diversey Australia Pty Ltd v Ferenczfy [2013] SASCFC 59 (Gray and Sulan JJ).
The plaintiff submits in relation to this matter:
A delay of nearly two years in delivering Reasons means that the assumption that a trial judge has considered all of the evidence can no longer be made, and the trial Judge must give a more complete statement of the relevant evidence.[33]
This is all the more acute where an adverse credibility finding has been made, unsupported by adequate reasoning. Any credit findings must be subjected to scrutiny to discern whether they have been affected by “operative delay”.
That is particularly important in this case because his Honour rejected the evidence given by the plaintiffs about the nature of the substance on the floor, as well as the amount of the substance, left on the floor at the time of the fall, preferring instead the evidence of the business record created by the cleaner the day after the fall, even though she was not called (Reasons [115]-[125]).
[33] Terry v Leventeris (2011) 109 SASR 358, [15] (Gray J, with whom Sulan and Vanstone JJ agreed); Rail Commissioner (formerly Trans Adelaide) v Warner [2011] SASCFC 90, [1] (Sulan J); [40]-[46] (Vanstone J) and [95]-[96] (Peek J); Johnson Diversey v Ferenczy [2013] SASCFC 59, [24]; and El-Masri v Molloy [2015] SASCFC 63.
In response, the defendant submits:
The Court did not make adverse findings of credit as to the witnesses to the fall. The Trial Judge found that each witness was a witness of truth.[34] The Trial Judge also found that the Plaintiff’s recall of the relevant events was not reliable on some matters having regard to the delay since the fall and the hearing, and the immediate effects of the fall itself.[35]
…
The principles discussed by the Court in Terry v Leventeris [2011] SASCFC 26 applicable to delay in the delivery of judgment[36] do not in this case have the result that the Court’s reasons are inadequate or that the Court erred in its decision.
The issue of whether the liquid was deposited by the cleaner was not a matter on which the Plaintiff could or did give evidence. The likely inference that it was deposited by the cleaner arose from the CCTV footage itself.
The finding that the liquid was likely deposited by the cleaner was not erroneous. The inferences in support of that finding were strong, to say the least. The consequence of that finding was that the Plaintiff could only succeed if the Defendant were effectively the insurer for the casual act of negligence of the cleaner.
Further, even absent such a finding, it is clear that the liquid which caused the Plaintiff to fall was present at or in the immediate vicinity of the place where the Reflections’ cleaner attended the bin shortly prior to the arrival of the Plaintiff, and that cleaner failed to remove the liquid. Thus on any view the accident was not causally related to any systemic issue relating to frequency of rotations.
[34] Judgment [103]. Accordingly this was not a case such as Ghazal v GIO of NSW (1992) 20 NSWLR 336, 345.
[35] Judgment [117] and [118].
[36] Terry v Leventeris (2011) 109 SASR 358; [2011] SASCFC 26, [15].
Consideration
In Terry v Leventeris, Gray J (with whom Sulan and Vanstone JJ agreed) said of the effect of delay between trial and judgment delivery:[37]
[37] (2011) 109 SASR 358, 364-365.
In support of the contention that delay should be taken into account when reviewing the judge’s findings, the defendant relied upon the observations of the Western Australian Full Court in the decision of Mount Lawley Pty Ltd v Planning Commission (WA) and upon the observations of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd. Consideration of those two authorities and the cases considered within allows for the following summary of principles to be identified in relation to situations where there has been substantial delay in delivering judgment:
• Delay in delivery of judgment does not, on its own, constitute a ground of appeal. However, in certain circumstances, the delay can give rise to a miscarriage of justice or other errors which constitute a ground of appeal.
• In circumstances where there has been substantial delay in delivering judgment:
othe delay weakens the advantage, as discussed above in Fox v Percy, that a trial judge has over an appellate court;
oappellate courts are to take the delay into account when reviewing the trial judge’s factual findings and when considering the adequacy of the judge’s reasons;
othe trial judge’s reasons should indicate that he or she has fully considered all of the evidence. It is incumbent upon the trial judge to indicate why he or she rejected the evidence of a particular witness and to indicate why he or she preferred one witness’ evidence over another witness’ evidence;
oassertive statements made by a trial judge which would normally be assumed to have been made after the trial judge comprehensively considered the evidence need to be supported by a more complete statement of the relevant evidence;
othe assumption that a trial judge has considered all of the evidence, albeit not referring to all of the evidence in the judgment, can no longer be made; and
oit is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision, and in the winning party in that they may feel they have had to wait too long for justice.
oit is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision, and in the winning party in that they may feel they have had to wait too long for justice.
…
The question of what amounts to substantial or excessive delay is problematic. Much depends on the circumstances of the case and the complexity of legal and practical issues arising. What appears to be clear from the authorities, however, is that the longer the delay, the more clarity and specificity needed in the reasons for judgment. [Footnotes omitted]
Gray J’s remarks have been applied in subsequent cases.[38] In Rail Commissioner (Formerly Transadelaide) v Warner, the Court emphasised the importance of prompt delivery of judgments.[39] However, I also there stated:[40]
[147] I make some final comment by referring to just one of the authorities, namely Cobham v Frett,[41] where Lord Scott of Foscote in delivering the judgment of the Privy Council, stated:[42]
It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge’s notes, not only of the evidence but also of the advocates’ submissions. In the present case the judge’s notes were comprehensive and of a high quality. As to demeanour, two things can be said. First, in their Lordships’ collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the re-reading. Second, every experienced judge, and Georges J was certainly that, is likely to make notes as a trial progresses recording the impressions being made on him by the witnesses.
[148] In my view, while delay may cause a number of collateral problems and is to be greatly regretted, an appellant must demonstrate that such delay has in fact caused error before a delayed judgment will be set aside; just because a judgment is late does not mean that it is also wrong. Further, to say that the advantage of the trial Judge may be diminished by delay, is not to say that it will necessarily be entirely lost.
[38] See, for example, Rail Commissioner (Formerly Transadelaide) v Warner [2011] SASCFC 90, [96] (Peek J, Sulan J concurring): “I note that these observations were not strictly necessary for the decision in that case since his Honour was of the view that the period of actual delay did not constitute the “substantial or excessive delay” that is required to trigger the application of such principles. However, his Honour’s remarks are of high persuasive value and I will therefore consider their application in the present circumstances where the delay is considerably greater than in Terry v Leventeris.” See also John Diversey Australia Pty Ltd v Ferenczfy [2013] SASCFC 59 (Gray and Sulan JJ, with whom White J agreed).
[39] [2011] SASCFC 90, [41]-[45].
[40] Ibid, [147]-[148].
[41] [2001] 1 WLR 1775.
[42] Ibid, 1783.
In the present case, the Judge was clearly alive to the principles in Terry v Leventeris[43] and prepared his reasons with them in mind. As to the delay, his Honour noted:[44]
I am also conscious of the delay between the completion of the trial and the delivery of these Reasons.[45] Apart from work load, I felt that it was prudent to first await the outcome of various pending superior court decisions.[46]
[43] As adopted in Johnson Diversey v Ferenczy [2013] SASCFC 59.
[44] [2017] SADC 35, [23].
[45] See Johnson Diversey Australia Pty Ltd v Ferenczy [2013] SASCFC 59.
[46] Prince Alfred College Inc v ADC [2016] HCA 37; Kellys' Property Management Services Pty Ltd v Anjoscho Pty Ltd [2016] NSWCA 241; Nepean Blue Mountains Health District v Starkey [2016] NSWCA 114; Gulic v Boral Transport [2016] NSWCA 268; and Deal v Father Pius Kathanath [2016] HCA 13.
A full transcript of both evidence and submissions was taken, to which the Judge has made repeated reference in his judgment. I have reviewed the evidence given and tendered at trial, the submissions of counsel, and his Honours reasons, and have had regard to the principles summarised in Terry v Leventeris. I consider that the Judge accurately summarised the relevant evidence, and appropriately indicated why he preferred the evidence of the CCTV footage over the evidence of the plaintiffs in the area discussed above.
This is not a case in which anyone is accused of deliberate lying, and the Judge was clearly alive to the considerable delay between the subject incident on 14 November 2009 and the time of the witnesses giving evidence in May 2015 and the consequential effect on memory and reliability.
While the length of the delay between trial and judgment is unfortunate, I can see no error having arisen as a result. I indicate that I also bear all of these matters in mind in relation to each of grounds of appeal 2, 3 and 4, although I do not intend to repeat them in the context of those grounds.
I would reject ground 1 of appeal.
GROUND 2 OF APPEAL: DELEGATION TO REFLECTIONS
In finding (Reasons 234) that the Defendant had discharged it’s duty of care as occupier by imposing appropriate cleaning and inspection obligations and by reasonably monitoring Reflections with its contractual obligations, the learned Trial Judge has failed:
2.1to properly address the absence of evidence from the Defendant to show that it relevantly monitored Reflections’ performance and, in particular the complete lack of detail as to how the Defendant monitored the 20 minute requirement at any time; and
2.2to properly address the absence of evidence on whether the 20 minute inspection routine was maintained.
At trial, the defendant did not dispute that it owed Mrs Stringer a duty of care to maintain the premises in a safe condition as occupier of the West Lakes Westfield. Rather, it asserted that it had discharged its duty of care by delegating the responsibility to clean and inspect the floor surfaces of the common mall area to Reflections. The defendant relied on its written contract with Reflections (the cleaning contract) and called Mr Marko Krndija, the facilities manager of West Lakes Westfield, to give evidence.
Mr Krndija’s evidence concerning the delegation to Reflections
Marko Krndija gave evidence that the cleaning contract was awarded to Reflections after a tender process, and on the basis of previous cleaning it had satisfactorily completed for another Westfield shopping centre. A copy of the cleaning contract was tendered as part of exhibit P2. During cross-examination, Mr Krndija added:
Q Do you know the basis upon which they were chosen over anyone else?
AThere would be probably two underlying factors that I recall, one being on past performance and their professionalism in terms of that they can deliver, and that would have been proven with other Westfield centres that they held, and costing.
Clause 1 of the schedule to the cleaning contract provides for the measurement of Key Performance Indicators (KPI’s) and that the KPI’s will be “monitored monthly using the Cleaning Services Checklist”. It also stipulates:
Weekly inspections will be performed by the Westfield Facilities Manager or nominated representative …
The Contractor is expected to provide an additional two (2) inspections per month. The Contractor is expected to provide accurate figures of their performance to the Facilities Manager on a monthly basis, by the 15th of the following month.
These monthly figures obtained from the Contractors self assessing system are an integral part of our agreement and failure to provide on time will be deemed as a breach of contract.
The schedule provides that the cleaning contract requires compliance with the minimum standard, defined as “Westfield Clean”. This definition includes:
No soil or litter or graffiti, cobwebs, spots, stains on entrances steps, walkways, curb sides, passageways, fire corridors, fire stairs, mall furniture, entrance mats, doors and doorjambs.
…
No watermarks, streaks, spots or soil after cleaning floors.
…
No soilage, stains, odour or liquid spills on rubbish and recycling bins after each cleaning and disinfecting cycle.
All spills to be attended to immediately with appropriate safety signage and barriers used as required. The area affected by the spillage is to be left clean and dry before opening up to public.
The cleaning contract requires inspections of “every square metre” of the “common mall and entrance area” to occur “every 20 minutes”. Mr Krndija gave evidence that Reflections’ responsibilities also included emptying the bins within the shopping centre.
Clause 10.3 provides a procedure for “incident notification”, requiring Reflections to notify the manager of the shopping centre “as soon as it seems apparent that the Contractor or any of its employees… are involved in any incident”. It also requires Reflections to participate in any investigation carried out in relation to such incident, including “the immediate provision of names and details of all employees … who were or should have been in the general vicinity of the incident location”. Further, in the Environment, Health and Safety Requirements for Westfield Shopping Centre annexed to the contract and signed by a representative of Reflections, clause 8.2 requires that, within 24 hours after an event where “a person’s future” is temporarily or permanently altered, Reflections needed to prepare a written report including a description of the event, and a “preliminary investigation” into the causes of the event and corrective action taken.
Reflections’ compliance with the cleaning contract
Mr Krndija gave evidence that his role as Facilities Manager required him to “monitor [Reflections’] performance in line with the … contractual agreement”, and that he met once a week with the “area supervisor” of Reflections to discuss its performance “in line with the KPIs that are stipulated in the contract”. Mr Krndija explained that the KPI’s were monitored by a score being assigned, where items, fixtures or areas were scored from a zero to a two based on the criteria provided for in the contract. He said that the score was assigned each Thursday between 9:00am and 10:00am, but that the “items would be observed throughout the week and then discussed at our weekly meetings”:
QIn your job at the time as facilities manager, were there occasions when you were required to walk around the shopping centre?
AYes, look, as a manager of the facility and an expectation for all our staff, it was a requirement to get out into the mall and make yourself be seen. That could vary from meeting a retailer or for other reasons.
QIn the course of those journeys, were any observations made in relation to the shopping centre and the mall area?
AAbsolutely. It’s an opportunity for us to capture a moment in time of the centre and its performance and the way it’s being presented, and that can be from a facilities point of view – example, lights being out – to a security point of view, making sure that we’ve got staff on the floor.
Q Did that include making observations as to whether cleanliness was up to scratch?
A Yes it would.
In addition to the weekly meeting, he gave evidence that there was “a daily routine” where he would meet with C1 (the managing cleaner) “to discuss general day’s activities, and if she had any issues that she needed to raise”.
He further gave evidence that he was one of the people who performed the review, and acknowledged that occasionally these KPI’s were not met, or he would observe, while walking through the mall, that there was “an issue of cleanliness or spillage”. Mr Krndija said that if this occurred, Reflections “would have to rectify and meet their obligations within the contract”.
Mr Krndija gave the following evidence concerning the contractual requirement that the cleaners inspect the condition of the shopping centre at various intervals:
Q How were the times of inspections recorded?
AAgain, within the contract, it was a requirement to have a system in place that could monitor the rotations. I think the system at the time was called a Wand system.
Q W-A-N-D?
AYep, and the Wand system would work – it as an electronic device that was attached to their belt, more so like a beeper of some sort, and there would be certain points within the mall that would activate that throughout the mall, so the rotations within the complex could be monitored.
Q That would tell you where cleaners were at different times?
A Correct.
Q Then who recorded that?
A I do recall it was managed by a third party on behalf of Reflections at the time.
In cross-examination, Mr Krndija gave evidence as to the circumstances in which he would inspect the records maintained by the third party:
Q Would you inspect those records at all?
A Only if the need arose.
QWouldn’t you do that as a matter of course to make sure that these rotations specified, are being attended to?
AI think by using the KPIs that are set within the contract would highlight those deficiencies.
QThe KPIs don’t talk about measuring whether those intervals – the inspection intervals had taken place do they?
A Correct.
Q No?
A But the contract does, the contract clearly stipulates –
Q The contract clearly stipulated?
A – 20 minute rotation.
Q Absolutely.
ASo as long as they’re adhering to the contract we know that they’re doing their rotations.
Q But how do you know they’re doing the rotations?
A Well we discuss their performance at our weekly meeting.
Q They’re not going to come to you and say we’re not doing it?
A I have to use the contract as much as I swore on the Bible, it’s the same principle.
QYou have to assume that they’re telling you the truth when they come and say this is what we’re doing?
A I would expect that’s the relationship that we have, to tell the truth.
The Judge’s findings as to delegation
Clause 15.3 explicitly renounces any relationship of employer/employee:
Nothing contained herein shall constitute the relationship of partnership or employer and employee between the parties hereto and it is the express intention of the parties that any such relationships are denied;
Clauses 4 and 15.2 give the manager of West Lakes Westfield the power to remove employees of Reflections from their work at the shopping centre. Relevantly, clause 4 provides:
(e)The Manager may at any time either verbally or in writing inform the Contractor that a particular person is not to be employed for any purposes in relation to the Agreement and the Contractor is not entitled to claim any loss or damage from the Manager as a result of such order.
(f) Such instruction or order may include the immediate removal of the staff member.
(g)The Manager is not required to state the reason for such rejection or removal of any person nor is the Manager permitted to claim for any damages loss or cost incurred as a result of such action undertaken by the Manager.
And clause 15.2 provides:
The Manager may at any time by notice in writing to the Contractor require that the Contractor should cease to permit a particular person or persons employed by it to be engaged in performing the Service which the Contractor is performing for the Manager pursuant to this Agreement, and in such event the Contractor shall as soon as is practicable cease to provide the service of such person or persons in or about the Shopping Centre and shall provide the services of such alternative persons or persons as may be acceptable to the Manager.
Clause 11 provides that each Reflections employee is to wear a uniform “which is approved by the Manager”. The contract’s second schedule elaborates:
1.6 Standard Westfield cleaning uniforms to be supplied by the cleaning contractor in strict adherence with the Westfield Standard Uniform specification as referred to in the Seventh Schedule. Westfield reserves the right to request any uniform to be replaced at any time.
The seventh schedule provides that the objective of the Westfield wardrobe is to “reinforce the brand through presenting the wardrobe consistently for maximum customer contact with all our customer grounds … Every point of contact with any Westfield Customer is an opportunity for Westfield to translate its vision, create impact and make an impression.” The schedule provides “style hints and tips” for employees appearance, ranging from their hair, makeup and fingernails, to the type of hosiery and socks, and perfume and cologne that should be worn.
The evidence of Mr Krndija
Mr Krndija gave evidence as follows:
Q The cleaning and maintaining of the premises in a clean state, and a safe and attractive condition to attract patrons is an important part of the shopping centre management responsibility, isn't it.
A Presentation in the centre is very important.
Q That is really part of your core business?
A It is part of it.
QAttracting, you don’t have a shopping centre unless you’re getting people to come in, and making it attractive for them to come into?
A Correct.
Q And keeping it clean and safe and nice looking for them?
A And operational, correct.
Q Are the cleaners required to wear a Westfield uniform?
A Correct, yep.
QThe purpose of that is to represent to the outside world that these are Westfield people making this place safe and clean and enticing for you, isn’t it? … That is to put the Westfield brand out to people who are coming into the centre?
A Possibly.
And further:
QIf you go to p 63 of the contract, p 69 of the book, this is part of your contract with Reflections Cleaning, in relation to the standard uniform specifications. Under the heading ‘Westfield customers’, the objective is ‘To reinforce the brand through presenting the wardrobe consistently for maximum customer contact with all our customer groups’?
A That’s correct.
QThat is why that is a very important part of the requirement to wear the Westfield uniform?
A The Westfield brand is very important.
QThat’s right, and customer groups including shoppers, retailers and contractors and community in general and investors?
A Correct.
QIt goes on to say ‘Every point of contact with any Westfield customer is an opportunity for Westfield to translate its vision, create impact and make an impression’.
A Correct.
QSo Reflections get no credit as far as the outside world is concerned for the good job they do?
A Disagree.
Q They get paid by you, yes?
A Correct.
QHow would a member of the public know that this is a job done by Reflections Cleaning?
A If they asked.
QIt goes on from not just having to wear Westfield uniforms, but you provide tips on how to wear hair, what sort of jewellery, makeup, fingernails, perfume, socks, footwear, belts and name badges is all a very important part of the presentation of the Reflections Cleaning employees in their Westfield uniform.
ADisagree. The general appearance of all staff, there is a requirement; not just Reflections.
Q All staff?
A All staff.
Q Anyone who is –
A That works within a Westfield centre.
Q They’re putting the brand out for Westfield?
A Anyone that works within a Westfield centre.
The scope of vicarious liability
In Hollis v Vabu Pty Ltd (Hollis), Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ noted:[71]
Terms such as “employee” and “independent contractor”, and the dichotomy which is seen as existing between them, do not necessarily display their legal content purely by virtue of their semantic meaning.
Observations by Windeyer J in Brooks v Burns Philp Trustee Co Ltd are in point here. His Honour was dealing with the different ways in which the terms “void” and “unenforceable” had been used with respect to illegality and said:
The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the familiar legal adjectives … and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. [Footnotes omitted]
[71] (2001) 207 CLR 21, 38.
In Hollis, the plurality identified seven factors pivotal to the finding there that the couriers were employees, rather than independent contractors, of Vabu:[72]
[72] Ibid, 42-45.
First, these couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free‑lancer or to generate any “goodwill” as a bicycle courier. The notion that the couriers somehow were running their own enterprise is intuitively unsound, and denied by the facts disclosed in the record.
Secondly, the evidence shows that the couriers had little control over the manner of performing their work. They were required to be at work by 9.00 am and were assigned in a work roster according to the order in which they signed on. If they signed on after this time, they would not necessarily work on their normal “channel”. Couriers were not able to refuse work. It was stated in Document 590 that “ANY DRIVER WHO DOES SO WILL NO LONGER WORK FOR THIS FIRM.” The evidence does not disclose whether the couriers were able to delegate any of their tasks or whether they could have worked for another courier operator in addition to Vabu during the day. It may be thought unlikely that the couriers would have been permitted by Vabu to engage in either activity.
Thirdly, the facts show that couriers were presented to the public and to those using the courier service as emanations of Vabu. They were to wear uniforms bearing Vabu’s logo. Vabu stated in Document 792 that “DRIVERS SHOULD ALWAYS BE AWARE THAT THEY ARE A DIRECT REPRESENTATION OF THE COMPANY. THEIR ATTITUDE AND APPEARANCE CAN ONLY BE SEEN AS A DIRECT REFLECTION OF OUR ORGANISATION.” Certain attire (“thongs, singlets, swim shorts, torn jeans and other unclean or torn attire”) was not permitted. Further, Vabu required that all couriers “should be clean shaven unless that person is bearded”.
… Rather, the effect of Vabu’s system of business was to encourage pedestrians to identify the couriers “as a part of [Vabu’s] own working staff”; the phrase is that of Dean Prosser and Professor Keeton,[73] used by them as a guide to classification of a person as an employee.
Fourthly, there is the matter of deterrence. Reference has been made to the findings of fact in this case respecting the knowledge of Vabu as to the dangers to pedestrians presented by its bicycle couriers and the failure to adopt effective means for the personal identification of those couriers by the public. One of the major policy considerations said by the Supreme Court of Canada in Bazley v Curry[74] to support vicarious liability was deterrence of future harm. McLachlin J said:[75]
… Beyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm. A related consideration raised by Fleming is that by holding the employer liable, ‘the law furnishes an incentive to discipline servants guilty of wrongdoing’.[76]
Fifthly, Vabu superintended the couriers’ finances: Vabu produced pay summaries and couriers were required to dispute errors by 6.00 pm Friday of the same week. “Unjustified or unsubstantiated” claims for additional charges, such as due to waiting time, wrong address or excess weight, could result in total deduction of that particular job payment. There was no scope for the couriers to bargain for the rate of their remuneration. Evidence in chief was given by Vabu’s fleet administrator that the rate of remuneration to the bicycle couriers had remained unchanged between 1994 and 1998. Vabu was authorised to hold for six weeks the last week's pay of a courier against any overcharges, unpaid cash jobs or outstanding insurance claims. Final cheques would not be processed until all of Vabu’s property had been returned. Failure to return Vabu’s equipment, including the uniforms, or the return of damaged equipment or unwashed uniforms resulted in replacement or washing costs being deducted from this amount. Vabu undertook the provision of insurance for the couriers and deducted the amounts from their wages and, as discussed above, passed on an excess to all bicycle couriers and did not pay medical or hospital costs.[77] The method of payment, per delivery and not per time period engaged, is a natural means to remunerate employees whose sole duty is to perform deliveries, not least for ease of calculation and to provide an incentive more efficiently to make deliveries.
Moreover, Vabu stipulated in Document 590 that “[n]o annual leave will be considered for the period November to Christmas Eve, nor for the week prior to Easter. Leave requests will be considered in accordance with other applications and should be submitted to the manager in writing at least 14 days prior.” This suggests that their engagement by Vabu left the couriers with limited scope for the pursuit of any real business enterprise on their own account.
Sixthly, the situation in respect of tools and equipment also favours, if anything, a finding that the bicycle couriers were employees. Apart from providing bicycles and being responsible for the cost of repairs, couriers were required to bear the cost of replacing or repairing any equipment of Vabu that was lost or damaged, including radios and uniforms. Although a more beneficent employer might have provided bicycles for its employees and undertaken the cost of their repairs, there is nothing contrary to a relationship of employment in the fact that employees were here required to do so. This is all the more so because the capital outlay was relatively small and because bicycles are not tools that are inherently capable of use only for courier work but provide a means of personal transport or even a means of recreation out of work time. The fact that the couriers were responsible for their own bicycles reflects only that they were in a situation of employment more favourable than not to the employer; it does not indicate the existence of a relationship of independent contractor and principal.
Finally, and as a corollary to the second point mentioned above, this is not a case where there was only the right to exercise control in incidental or collateral matters. Rather, there was considerable scope for the actual exercise of control.[78] Vabu’s whole business consisted of the delivery of documents and parcels by means of couriers. Vabu retained control of the allocation and direction of the various deliveries. The couriers had little latitude. Their work was allocated by Vabu’s fleet controller. They were to deliver goods in the manner in which Vabu directed. In this way, Vabu’s business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu’s business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabu’s operations in the outside world. It would be unrealistic to describe the couriers other than as employees.
[73] Prosser and Keeton on the Law of Torts, 5th ed (1984), §70 at 501. See also Dobbs, The Law of Torts, (2001), vol 2, §338.
[74] [1999] 2 SCR 534.
[75] [1999] 2 SCR 534, 554‑555.
[76] Fleming, The Law of Torts, 9th ed (1998) at 410.
[77] In document 792, Vabu informed its couriers that “[t]his company does not pay hospital or medical bills for any courier involved in an accident”.
[78] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 29.
Hollis was considered, and ultimately distinguished, by the High Court in Sweeney v Boylan Nominees Pty Ltd.[79] The plurality (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) there stated:[80]
[30] It is as well to add something further about Hollis. Hollis hinged about whether the person whose conduct was negligent was to be identified as an employee of the principal. Seven considerations were identified in the facts of that case as bearing upon the question …
[31] The circumstances of the present case are very different. The mechanic was not an employee of the respondent. He conducted his own business. It may be that it could be inferred that he did that through, and as an employee of, the company whose name provided the name advertised on his vehicle. But this was not a matter to which close attention was given in evidence at trial and it is not necessary to pursue it to its conclusion. That the mechanic was engaged in a business other than that of the respondent was demonstrated by a number of circumstances but chief among them were his invoicing the respondent for each job he did and the respondent’s concern to verify that the mechanic had proper workers’ compensation and public liability insurance. The interposition of the mechanic’s company would, of course, give further support to the conclusion that he was engaged in a business other than that of the respondent.
[32] The mechanic or, if it were the case, his company, was engaged from time to time as a contractor to perform maintenance work for the respondent. Unlike the principal in Hollis, the respondent did not control the way in which the mechanic worked. The mechanic supplied his own tools and equipment, as well as bringing his skills to bear upon the work that was to be done. And unlike the case in Hollis, the mechanic was not presented to the public as an emanation of the respondent. The two documents to which the trial judge, as mentioned earlier, attached great weight neither require nor support the conclusion that he was. Neither says anything of the nature of the relationship between the mechanic and the respondent beyond the fact that the mechanic was acting at the request of the respondent. As previously stated, that presents the question to be answered in this case, it does not answer it.
[33] Whatever may be the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the two central conceptions of distinguishing between independent contractors and employees and attaching determinative significance to course of employment are now too deeply rooted to be pulled out. And without discarding at least the first and perhaps even the second, the appellant’s claim against the respondent must fail. The mechanic was an independent contractor. He did what he did for the benefit of the respondent and in attempted discharge of its contractual obligations. But he did what he did not as an employee of the respondent but as a principal pursuing his own business or as an employee of his own company pursuing its business. (Emphasis added)
[79] (2006) 226 CLR 161.
[80] (2006) 226 CLR 161, [172]-[173]. This passage was referred to by Gray J in Permanent Trustee Australia Ltd & Ors v Valeondis & Ors (2009) 105 SASR 458, 471.
In the present case, the plaintiff particularly relies on the dissenting judgment of Layton J in Permanent Trustee Australia Ltd v Valeondis (Valeonidis)[81] in support of the submission that the principles of vicarious liability may, in certain circumstances, apply to independent contractors. However, with respect, that legal proposition is not controversial and is not denied in Hollis, Sweeney or either of the majority Judges in Valeonidis. Thus in Valeonidis, Bleby J referred to Sweeney and stated:[82]
In Sweeney v Boylan Nominees Pty Ltd Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, in their joint judgment said:
[I]t is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person’s actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like “representative”, “delegate” or “agent”. The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.
…
The point to be made is more than linguistic. What is revealed is that like “agent”, the word “representative” and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the “representative” of A does not reveal, without definition of what is meant, what was the relationship between the parties.
…
By asking the question whether the agent-principal relationship was established, the trial judge asked the wrong question. To hold (as he did) that “Colliers were the agent of the owner, not an independent contractor” was to suggest that those terms were mutually exclusive, when they are not. [Footnotes omitted]
[81] (2009) 105 SASR 458.
[82] Ibid, 464.
Gray J also referred to Sweeney[83] and concluded as follows:[84]
In accordance with the above analysis, it is necessary in the present proceeding to ascertain whether Colliers was standing in the place of the building owners and assuming to act in their right, or whether Colliers acted in an independent capacity in transactions with others and as an independent contractor. [Footnotes omitted]
[83] (2006) 226 CLR 161.
[84] (2009) 105 SASR 458, 470.
What is made clear by all members of the court in Valeondis is that it is crucial to assess all of the facts in order to ascertain the true nature of the relationship between the parties; and that the use of words such as “agent”, “representative” or “independent contractor” is not determinative either way.
Consideration
There are a number of considerations militating against a finding that the defendant was vicariously liable for Reflections’ negligence, including that:
-Reflections was to design and implement a “controlled self-assessment system” to ensure that the specifications in the contract were being complied with (second schedule, 1.2-1.3);
-Reflections was responsible for maintaining the licences and permits required to perform the contract (cl 3.2);
-Reflections was responsible for the provision of cleaning supplies and equipment at their own cost (cl 3.3, 5.2);
-Reflections was required to maintain, in its own name, primary insurance cover in relation to workers compensation and public risk (cl 10.1);
-Reflections was responsible for providing its employees with the “necessary training” (cl 3.5);
-Reflections was obliged to indemnify the defendant against losses arising “out of or in connection with a breach … of any of [Reflections’] obligations” (cl 14.2);
-Reflections was to pay a deposit as security for its “due and punctual observance and performance of [it’s] obligations” (cl 17);
-Reflections was required to pay rent for storerooms at the shopping centre (first schedule, item 4);
-The defendant paid a fixed sum to Reflections under the terms of the contract, from which Reflections was to pay their employees (cl 5.2); and
-Clause 15.3 (replicated above at [111]) makes it clear that the parties had no intention of creating an employer-employee relationship.
These considerations are to be weighed against considerations suggestive of the defendant’s control over Reflections and their staff, including that:
-The defendant could summarily dismiss employees of Reflections who were undertaking work at the West Lakes Westfield (clause 15.2);
-The defendant could direct Reflections’ employees to attend induction and training courses (cl 11.4); and
-The defendant could inspect and reject any equipment or uniform used by Reflections or their staff (second schedule, 1.6, 1.9).
In my view, it is hardly surprising that the defendant would impose strict contractual obligations on Reflections so as to enable it to monitor Reflections’ performance and have safeguards in place should Reflections and its employees not comply with its obligations. One would expect the defendant to monitor Reflections’ compliance with the contract in circumstances where they have paid a substantial sum of money for the performance of the services stipulated therein, and in circumstances where Reflections’ failing to do so could impact not only on the revenue of the shopping centre, but also on the defendant’s discharge of its legal obligations. Such monitoring does not, without more, bring the relationship between the defendant and Reflections within the scope of the vicarious liability doctrine.
Monitoring of the performance of the contract does not derogate from the fact that, although the defendant set minimum standards, it required Reflections to establish its own procedure for meeting and maintaining those minimum standards. This much was expressly stated in the second schedule referred to above. By way of example, the satisfactory standard for the floors is said to be “Floor free of all visible litter, spillage, fluids, dirt and gum with a high lustre finish”. However, the defendant does not specify what equipment need be used, nor what procedure should be followed; these are matters for the good judgment and expertise of Reflections.[85]
[85] A limited exception to this general proposition is that the contract explicitly provides for the cleaning procedures for certain high risk areas, under the heading “Westfield Standard Operating Procedures”. This includes food trays and high chairs.
Although the contract provided the defendant with some powers to direct and dictate the conduct of Reflections employees, there was little evidence, if any, that they actually did so. Indeed, Mr Krndija was not cross-examined on whether any of the provisions of the contract giving the defendant control over the conduct of Reflections’ employees were ever exercised.
Further, I consider that insofar as the employees of Reflections followed the directions of the defendant, it was obviously in furtherance of Reflections’ own business interests and in proper discharge of its contractual obligations to a third party to do so. It does not follow that Reflections were standing in the shoes of the defendants.
Understandably, the plaintiffs seek to emphasise the significance of the contractual requirement that cleaners employed by Reflections were required to wear Westfield Shopping Centre uniforms and the other “style hints and tips” provided for in the seventh schedule to the contract between the defendant and Reflections (discussed above at [114]). In other cases, this may be a weighty factor, but here it is merely one of a number of indicia which must be considered and weighed. As Mason J observed in Stevens v Brodribb Sawmilling Company Pty Ltd, “... it is the totality of the relationship between the parties which must be considered”.[86] And Wilson and Dawson JJ there stated:[87]
The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive.
… Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.
[86] (1986) 160 CLR 16, 29.
[87] Ibid, 35-37.
In my view, in light of the cumulative weight of the factors weighing against vicarious liability here, the plaintiffs did not establish that Reflections was acting as an entity standing in the shoes of the defendant as distinct from acting “as a principal pursuing its own business”.[88] I consider that the defendants are correct in their contention that the proper characterisation of the relationship between the defendant and Reflections was that of principal and independent contractor and that, in the absence of special considerations arising from a special dependence or vulnerability of the plaintiff, or an activity carrying with it an inherent and high risk of harm, no vicarious liability arises here.
[88] Cf Permanent Trustee Australia Ltd v Valeondis (2009) 105 SASR 458, 475 (Gray J).
I would dimiss ground 3 of appeal.
GROUND 4 OF APPEAL: LIABILITY PURSUANT TO THE OCCUPATIONAL HEALTH SAFETY AND WELFARE ACT 1986 (SA)
In finding (Reasons 234) that the Defendant was not liable to the Plaintiffs pursuant to the Statutory duty of occupiers in Section 23 of the Occupational Health and Safety and Welfare Act 1986 (SA), the learned Trial Judge has failed to take into account:
3.1 the size of the centre;
3.2 the volume of traffic; and
3.3 the well recognised risk to safety
Section 23 of the Occupational Health and Safety and Welfare Act 1986 (SA) (the Act) provides as follows:
Duties of occupiers
23 The occupier of a workplace shall ensure so far as is reasonably practicable—
(a) that the workplace is maintained in a safe condition; and
(b) that the means of access to and egress from the workplace are safe.
Maximum penalty: For a first offence—division 2 fine.
For a subsequent offence—division 1 fine.
The Judge’s findings concerning liability pursuant to s 23 of the Act
The Judge noted that the question as to whether s 23 provides for a private right of action is yet to be settled by the courts. His Honour went on to state:[89]
On the subject facts, the cleaning contract placed strict obligations on Reflections to carry out its tasks safely, and to keep its employees safe. If the defendant were to be liable, it would convert the occupier’s duty into that of a ‘second employer’.[90]
It is plain that the task to be performed by the cleaner was a simple one. In McVicar v SJ White at [39] the Court described such a task ‘as one which did not require a formal qualification. It is not the kind of task one would expect the occupier to supervise, or be involved in. To the contrary, it is the kind of task that one would expect to be left to the contractor, if a contractor was hired to perform it’.
In the subject case the hazard arose only because of the manner in which the cleaner approached her task of cleaning on that occasion.
On any view this was a singular act of carelessness by a cleaner employed by the independent contractor, Reflections.
In my opinion, consistent with the dicta in Leichhardt Municipal Council v Montgomery; Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement; AFA Airconditioning v Mendrecki; and McVicar v SJ White Pty Ltd, supra, any statutory duty to ‘ensure’ that reasonable care is taken does not extend to such a singular act of carelessness.
[89] [2017] SADC 35, [228]-[232].
[90] Elphic v Westfield Shopping Centre Management Company Pty Ltd [2001] NSWCA 356, [59].
Does s 23 confer a private right of action in relation to a breach of the section?
In AFA Airconditioning Pty Ltd v Mendrecki and Others; Doan and Another v Mendrecki and Others (AFA Airconditioning), Layton J (with whom Duggan and Bleby JJ concurred), noted:[91]
The judge found that s 23 gave rise to a cause of action, without citing any authority in support of that conclusion.[92] This Full Court in Complete Scaffold Services[93] expressed reservation as to whether breach of this legislation gave rise to an independent cause of action for damages[94] but was prepared to proceed as though there was such a cause of action. A similar approach had been taken by the majority of the High Court in Slivak v Lurgi (Australia) Pty Ltd (Slivak v Lurgi).[95] That case concerned the duties of designers in the context of the effect of a breach of duty in respect of workers. Gaudron J, who was in dissent as to the result in that case, expressed the view that s 24(2a)(a) of the OHSW Act conferred a right of civil action.
This Court was not provided with a full and detailed argument by the parties on this point. I therefore take a cautionary approach in this case, as did the Full Court in Complete Scaffold Services[96] and Debelle J in McVicar v S & J White Pty Ltd (McVicar),[97] and assume, for the purposes of this case, that an independent cause of action is conferred by the section. If it does, it could only apply to an “occupier”, limited in this case to the owners and the builder.
[91] (2008) 101 SASR 381, 407-408.
[92] Mendrecki v Doan [2006] SADC 140, [46].
[93] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 (Doyle CJ, with whom other members of the court agreed).
[94] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199, [46].
[95] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, [27]-[29].
[96] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199.
[97] McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160, [66].
This issue has not subsequently been resolved by the Full Court. Again not having had full submissions from the parties on this topic, and the defendant not having invited the Court to do the contrary, I consider that the appropriate course to take is to follow the approach of Layton J in AFA Airconditioning and, without deciding, to assume for the purposes of this case that s 23 of the Act gives rise to a civil cause of action.
The scope of any duty arising pursuant to s 23 of the Act
In 2007 in McVicar v S & J White Pty Ltd (t/a Arab Steed Hotel), Doyle CJ stated:[98]
I do not consider that s 23 imposes a duty on an occupier of a workplace in relation to danger attributable to what might be called a casual act of negligence by a person who is in the workplace. If the section is interpreted in this manner, it could be complied with only by the occupier supervising the activities of all persons present in the workplace, whether employees or not.
[98] Ibid, 171.
Similarly, Debelle J stated:[99]
The obligation imposed on the occupier of a workplace by s 23 of that Act is to “ensure so far as is reasonably practicable” that the workplace is maintained in a safe condition. This workplace was maintained in a safe condition. It became unsafe only because, unbeknown to the occupier, Keogh’s employees had introduced to the workplace a cleaning agent which created a potential danger. The duty of the occupier of the workplace was to take such steps as were reasonably practicable to maintain the workplace in a safe condition. The occupier had done so. The company did not therefore act in breach of s 23.
[99] Ibid, 173. Anderson J at 178 doubted “very much whether this imposes any more onerous requirements than the occupier’s duty at common law” and agreed with the observations of Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199.
And in 2011 in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd, Doyle CJ (with whom Williams and Martin JJ agreed) doubted that “s 23 applies at all to a passing incident”.[100]
[100] [2011] SASC 199, [58].
In 2008 in AFA Airconditioning, Layton J considered the question of whether s 23 imposes a non-delegable duty at some length. Her Honour stated:[101]
The judge found that s 23 “[o]n its face” gave rise to a non-delegable duty of care.[102] No authority was cited for this conclusion and no reasons were given. The judge’s conclusion might appear to derive some support from the reasons given by Perry J in Cox Constructions Pty Ltd v Dawes (Cox Constructions)[103] with whom Prior and Mullighan JJ agreed. However, the finding in that case that s 23 gave rise to a non-delegable duty of care turned upon particular regulatory provisions applicable to an occupier of commercial premises. Such provisions have no application to this case. Doyle CJ, in Complete Scaffold Services,[104] with whom the other members of the court concurred, provided a basis for qualified delegation of the duty to a competent independent contractor except where, for example, the performance of the task depends on a task which is inherently dangerous or hazardous, and there is a risk of harm of great significance or magnitude.[105] This same approach was again applied by the Chief Justice in McVicar,[106] with express rejection of a non-delegable duty by Anderson J.[107]
A more recent discussion of the general approach taken by courts in relation to non-delegable duties under statutory provisions has been expressed by Gleeson J in the High Court case of Leichhardt Municipal Council v Montgomery.[108] The discussion of Gleeson J, particularly at [23] of his reasons, suggests that a statutory duty to “ensure” that reasonable care is taken is unlikely to be extended to become a duty to ensure that no singular act of carelessness of an independent contractor occurs. Or, to put it another way, a duty that the contractor should be responsible for singular acts of carelessness of an independent contractor.[109]
[101] (2008) 101 SASR 381, 408.
[102] Mendrecki v Doan [2006] SADC 140, [46].
[103] Cox Constructions Pty Ltd v Dawes (1999) 73 SASR 557, [77].
[104] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199.
[105] Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199, [41] and [42].
[106] McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160, [53].
[107] McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160, [91].
[108] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22.
[109] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22, [9]-[10], [18] and [23].
Layton J proceeded to consider the relationship between the common law duties and s 23 of the Act. In doing so, her Honour referred to Silvak v Lurgi (Australia) Pty Ltd[110] (where the High Court considered the words “reasonably practicable” in the context of s 24(2a)(a) of the Act) and to Dinko Tuna Farmers Pty Ltd v Marcos[111] (where Gray J (with whom Layton and Kelly JJ concurred) interpreted the words “reasonably practicable” in the context of s 19 of the Act), to which decisions I also have regard. Her Honour then concluded:[112]
In summary… it is unhelpful to consider whether or not the statutory duty in s 23 is “higher” than at common law. While similar factors in determining whether a breach at common law would arise in considering a breach of s 23, nonetheless it is the words of the section which should be applied. The duty imposed by s 23 is to ensure that the workplace is maintained in a safe condition so far as is “reasonably practicable”. Whether in a given case the duty under s 23 may be more onerous than at common law will depend on the particular factual circumstances.
[110] (2001) 205 CLR 304.
[111] (2007) 98 SASR 96.
[112] (2008) 101 SASR 381, 411-412.
Consideration
The success of ground 4 of appeal depends, amongst other things, upon this Court finding that there were “reasonably practicable” measures which the defendant should have taken to prevent the fall. But, as found above, the Judge was not in error in finding that the causative liquid spill was accidentally deposited by the first Reflections cleaner who attended at the fall site very shortly prior to the plaintiff’s fall. In those circumstances, there was nothing which the defendant could have done as a matter of “reasonable practicability” to prevent the first cleaner’s “act of carelessness” in spilling the liquid.
I would reject ground 4 of appeal.
Since writing the above, I have seen the additional remarks of the Chief Justice. I agree with them.
Conclusion and disposition
I consider that the appeal should be dismissed
NICHOLSON J: I would dismiss the appeal. I agree with the reasons given by Peek J and the additional reasons given by the Chief Justice.
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