Victorian WorkCover Authority v Spotless Facility Services Pty Ltd - [2024] VSC 237

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2023 01967

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
SPOTLESS FACILITY SERVICES PTY LTD	Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATES OF HEARING:	13 and 14 March 2024
DATE OF JUDGMENT:	14 May 2024
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Spotless Facility Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 237

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NEGLIGENCE — Workplace accident — Indemnity claim pursuant to s 369(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) — Legal liability of cleaning and catering contractor engaged by school — Content of the duty of care where school authority also had system for intermittent inspection for slip hazards — Whether contractor had an adequate system for detection of slip hazards — Whether absence of a system of inspection was a cause of the worker’s injury — Apportionment of damages between defendants — Factor X — Strong v Woolworths Ltd (2012) 246 CLR 182 — Kocis v SE Dickens Pty Ltd (t/as Coles New World Supermarket) [1998] 3 VR 408.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Jurica K Karadimas	IPD Lawyers
For the Defendant	D Masel KC G-J Cooper	Barry Nilsson

HER HONOUR:

Brett McGinnes (McGinnes, the worker) was employed by Geelong Grammar School (the school) as a Property Manager. On 16 March 2016 McGinnes was injured in the course of his employment when he slipped in the main Dining Hall at the school premises and fell heavily. He suffered an injury to his cervical spine which has required surgical interventions.

Spotless Facility Services Pty Ltd (Spotless, the defendant) held two relevant contracts with the school at the time, one to provide catering services and another to provide cleaning services at the premises.

McGinnes made a WorkSafe claim against the school which was accepted. He was in receipt of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act). He also claimed damages from two defendants: his employer and Spotless. Both his claim for damages and his compensation claim alleged he slipped because of a food spill on the Dining Hall floor, namely spilt liquid believed to be soup. Before the commencement of trial McGinnes settled his damages claim.

The Victorian WorkCover Authority (VWA, the plaintiff) brings this proceeding claiming an indemnity against Spotless pursuant to s 369(1) of the Act on the basis that the injury sustained by McGinnes occurred in circumstances which created a legal liability in Spotless to pay damages to him.

Section 369(1) of the Act provides:

Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages in respect of the injury or death or that would have created such a liability if…

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: [2024] VSC 237
Decision Date: 14 May 2024

CaseChat Overview and Summary

In the case of Victorian WorkCover Authority v Spotless Facility Services Pty Ltd, the plaintiff, an entity representing a worker who was injured in the course of their employment, sought indemnity from the defendant, a cleaning and catering contractor engaged by a school. The worker slipped and injured themselves while cleaning a floor. The plaintiff argued that the defendant’s failure to maintain an adequate system for the detection of slip hazards contributed to the worker’s injury. The defendant, in turn, claimed that the school’s intermittent inspection system for slip hazards also contributed to the accident.

The central legal issues before the court were whether the defendant had a sufficient system in place to detect slip hazards and whether the absence of such a system was a cause of the worker’s injury. Additionally, the court had to consider the apportionment of damages between the parties. The court was required to balance the contributory negligence of both the defendant and the school in the context of the statutory indemnity claim under section 369(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The court found that the defendant had a duty of care to maintain an adequate system for the detection of slip hazards, but it did not find that the absence of such a system was a cause of the worker’s injury. Instead, the court held that the primary cause of the accident was the school's intermittent inspection system, which did not effectively identify the slip hazard. The court apportioned damages, attributing 75% of the liability to the school and 25% to the defendant. The court considered the statutory provisions and case law, notably Strong v Woolworths Ltd and Kocis v SE Dickens Pty Ltd, to arrive at this conclusion.

In conclusion, the court ordered Spotless Facility Services Pty Ltd to pay 25% of the total damages to the plaintiff, reflecting their share of liability for the worker’s injury. The school, as the primary employer, remained responsible for the remaining 75% of the damages. This decision underscores the importance of both employers and contractors maintaining adequate safety systems to prevent workplace accidents.

Orders