Stringer & or v Westfield Shopping Centre Management Co (SA) Pty Ltd

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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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Details
Case
[2017] SASCFC 138
Decision Date

CaseChat Overview and Summary

The parties to this matter were the plaintiffs, Mrs and Mr Stringer, and the defendant, Westfield Shopping Centre Management Co (SA) Pty Ltd. The dispute concerned injuries sustained by Mrs Stringer when she slipped on a liquid spill on the floor of the West Lakes Westfield Shopping Centre, which she alleged was caused by the negligence of the defendant or its independent cleaning contractor. The case was heard in the Supreme Court of South Australia.

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

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.

Decision

Reasons for decision

PEEK J
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. 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

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