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
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- Case
- [2017] SASCFC 138
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendant, as occupier of the shopping centre, owed a duty of care to the plaintiffs, and if so, whether that duty had been breached. Specifically, the court considered whether the defendant was liable for the negligence of the cleaning company, Reflections Cleaning Company, which had been engaged to maintain the premises. The plaintiffs also contended that the defendant was vicariously liable for the actions of the cleaner or liable for breaching statutory duties related to occupational health and safety.
The court's reasoning focused on the defendant's discharge of its duty of care as an occupier. It was found that the defendant had taken reasonable steps by engaging a competent cleaning contractor, imposing appropriate cleaning obligations, and reasonably monitoring the contractor's performance. The court accepted the trial judge's findings that the liquid spill was deposited by a Reflections cleaner shortly before the plaintiff's fall, and that the cleaner was negligent in failing to clean it up. However, the court determined that there was insufficient time between the deposit of the liquid and the plaintiff's fall for the defendant to have reasonably intervened. Furthermore, the court found that the defendant had discharged its duty by engaging Reflections, and was not vicariously liable for the contractor's negligence.
Consequently, the appeal was dismissed, and the plaintiffs' claim against the defendant was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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; orThirdly 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