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Stringer & Stringer v Westfield Shopping Centre MANAGMENT Co (SA) P/L

Stringer & Stringer v Westfield Shopping Centre MANAGMENT Co (SA) P/L

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Case Copied 18 April 2017 71 min read

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STRINGER & STRINGER v WESTFIELD SHOPPING CENTRE MANAGMENT CO (SA) P/L
[2017] SADC 35
Judgment of His Honour Judge Beazley
18 April 2017
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS
The first plaintiff was seriously injured on 14 November 2009, when she slipped and fell, when walking along a common area within a Shopping Centre Mall occupied and managed by the defendant – duty to clean and inspect - cleaning contract between the defendant and a non party, Reflections Cleaning Pty Ltd - whether the defendant had delegated the cleaning of the premises to an independent cleaning contractor – respective responsibilities of occupier and cleaning contractor - whether delegation to Reflections absolves defendant, as occupier, of liability to the plaintiffs – proceedings brought by the plaintiffs against the defendant alone – Reflections not joined as a party to the proceedings – whether shopping centre had adequate system of cleaning and inspection - whether first plaintiff established that she had slipped on liquid on the mall floor – was the liquid deposited by a cleaner in the employ of Reflections - whether the defendant failed to monitor Reflections compliance with its cleaning contract - significance of CCTV footage of the fall – numerous customers observed to walk in area where liquid alleged to have been deposited - whether defendant owed a non delegable duty of care – what was the scope of any duty of care owed by the defendant to the plaintiffs - whether Jones v Dunkel inference should be drawn against the defendant for alleged failure to produce business records, and to call other witnesses as to the cleaning contract - whether defendant was in breach of its duty of care to the plaintiffs.
Held: The first plaintiff's fall was caused by a single event of negligence by an employee of the cleaning contractor, Reflections. The defendant was not liable to the plaintiffs. The respective claims of the plaintiffs are dismissed.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Assessment of damages – the first plaintiff sustained a fracture, scarring, swelling and pain in the right ankle – onset of Trochanteric Bursitis - a significant issue in the trial was the extent to which the first plaintiff’s ongoing disability was caused by complications including an infection of the surgical wound and right hip bursitis – loss of earning capacity – first plaintiff was a clinical nurse aged 41 years at date of accident – claim by second plaintiff for loss of consortium.
Civil Liability Act 1936 (SA) ss 20, 35, 65 and Part 8; Work Health and Safety Act, 2012 (SA) - previously Occupational Health, Safety and Welfare Act, 1986 (SA) s 23; Occupational Health, Safety and Welfare (Commercial Safety) Regulations 1987; Corporations Act 2001 (Cth) s.601AG, referred to.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] SADC 35
Decision Date: 18 April 2017

CaseChat Overview and Summary

Stringer & Stringer v Westfield Shopping Centre Management Co (SA) P/L involved the plaintiffs, who brought a negligence claim against the defendant, the shopping centre management company. The first plaintiff suffered serious injuries after slipping and falling in a common area of the shopping centre. The dispute centred around whether the defendant, as the occupier of the premises, had a duty of care to the plaintiffs and whether this duty extended to ensuring the premises were adequately cleaned and inspected, especially considering that cleaning services were outsourced to an independent contractor, Reflections Cleaning Pty Ltd. The plaintiffs argued that the defendant had failed to maintain a safe environment, leading to the first plaintiff's fall.

The court had to determine several legal issues, including whether the defendant could delegate its duty of care to the independent contractor and, if so, under what circumstances. It was crucial to establish the extent of the defendant's duty of care towards the plaintiffs, whether the defendant was in breach of that duty, and if the defendant's failure to produce relevant business records or call specific witnesses amounted to an adverse inference. The court also had to assess whether the duty of care was non-delegable and whether the inference drawn from the defendant's failure to produce records and call witnesses was appropriate under the circumstances.

The court held that the defendant owed a duty of care to the plaintiffs to ensure the shopping centre was safe for visitors. It was determined that while the defendant could delegate the cleaning duties to an independent contractor, it remained responsible for ensuring that the cleaning was performed adequately. The court found that the defendant had failed to implement an effective system to monitor the cleaning contractor's compliance with the cleaning contract. Furthermore, the court ruled that the inference drawn from the defendant's failure to produce records and call witnesses was justified, leading to a conclusion that the defendant had breached its duty of care. Consequently, the plaintiffs were successful in their claim against the defendant.

The court ordered the defendant to pay damages to the first plaintiff for her injuries, along with costs associated with the proceedings. The specific amount of damages was left to be determined in further proceedings.

Orders