Victorian WorkCover Authority v Spotless Facility Services Pty Ltd
[2024] VSC 237
•14 May 2024
| 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 the injury or death had been caused in Victoria, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
Section 369(3) of the Act provides the method for calculating the amount of indemnity where a legal liability to pay damages by a third party is established. It provides:
The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula—
where—
A is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority or self-insurer under section 367 from the Transport Accident Commission otherwise than under a settlement;
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party;
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death.
The parties have agreed that the compensation that has been paid for the purposes of s 369(3)(a) is $809,509.62. The parties have also agreed for the purpose of the formula in s 369(3)(b) that Factor A is $2 million. Factor B is not relevant and I have been informed by the parties that Factor C is the sum of $150,000.
It remains for me to determine whether there is a legal liability to pay damages to satisfy s 369(1) and if so, then to determine Factor X.[1]
[1]This will allow determination as to the lesser amount that is payable as indemnity, see Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520.
Therefore the following issues require resolution:
(a) Was there negligence or breach of statutory duty by Spotless?
(b) If so, to what extent did Spotless’s act, default or negligence cause or contribute to the worker's injury?
The extent is to be expressed as a percentage. The contribution of all tortfeasors falls for consideration. Here it is alleged the school as the employer is the only other relevant tortfeasor.
The evidence
The plaintiff called the worker and John Quick (Quick), the maintenance supervisor at the school, and both were cross-examined. The defendant called two Spotless employees who were both cross-examined: Helen Clarke (Clarke), site manager for Spotless at the school who had oversight of the catering contract and Keven O’Connor (O’Connor), cleaning services manager for Spotless at the school. Documentary evidence was tendered by both parties, comprising a number of photographs, selected answers to interrogatories in the worker’s damages proceeding, contracts between the school and Spotless, claim forms, incident reports and correspondence regarding resealing of the school Dining Hall floor.
A combination of the photographs, a diagram of the area and the viva voce evidence provided a description of the location of the fall. The main Dining Hall seats approximately 400 people over 50 tables plus a High Table. It is a long room running north to south with a main entrance on the north end and another entrance on the south end of the east wall. On the west side at about the midpoint was a room described as a servery with two entrances from the Dining Hall. Service of hot food occurred in this room and beyond it was a dishwasher room where the return of dirty crockery and cutlery to a dishwasher occurred. The kitchen area was also beyond this area to the west of the Dining Hall. Within the Dining Hall, at the midpoint was a cold servery or salad bar area and across from this was the High Table with its own servery area. Dining tables were placed in rows running north to south with corridors for movement between them. The standard setup was as shown in the diagram ‘Dining Hall Table Layout’ which formed part of tendered exhibit 1 and has been reproduced below.
McGinnes’s own account was the only evidence of the incident itself. He said that at approximately 1:00pm he entered the Dining Hall from the north entrance to get a banana from the cold servery.[2] He passed the cold servery on the side nearest the High Table. There were no bananas so he continued towards the south-east exit of the building.[3] The Dining Hall was busy at this time and he described having to wait for a path to clear[4] because students were standing in the pathway with their trays preparing to go to the dishwasher area. The fall occurred in the area just past the cold servery before reaching the tables positioned to its south.
[2]Transcript of Proceedings, Victorian WorkCover Authority v Spotless Facility Services Pty Ltd (Supreme Court of Victoria, S ECI 2023 01967, Justice Forbes, 13-14 March 2024), 20.23–25 (‘T’).
[3]T 17.27–18.1; 20.10–15.
[4]T 18.1–4.
McGinnes uses crutches to walk due to the amputation of his right leg as a result of a childhood cancer and was using them at the time of the incident. He described that while he was moving towards the exit his left foot ‘skated forward and literally went from underneath [him]’[5] and he fell to the floor on his left side. He said he did not see anything on the floor before he fell but, based on the wet patch on his pant leg and his observation when on the ground, he said he slipped on a spilt liquid. He said he believed it was soup based on the smell and texture which he described as ‘brothy’.[6]
[5]T 22.6–8.
[6]T 24.4–8; 22.9–11; 23.19–22.
McGinnes attempted to mop up the spill by grabbing some napkins. McGinnes said that Stephen Meek (Meek), the principal of the school, was in the Dining Hall at the time of the incident and came to his aid. According to McGinnes, Meek said not to worry about cleaning up the spillage.[7] McGinnes left the Dining Hall quickly as he was embarrassed[8] and said he didn’t see how the spill was cleaned up.[9]
[7]T 21.1–3.
[8]T 27.1–16.
[9]T 24.12–14; 24.21–22.
All four witnesses agreed that 1:00pm was a busy time in the Dining Hall. The evidence disclosed that approximately 900 students and staff,[10] and up to 1100 meals[11] were served each school day lunchtime. Sittings were staggered with the lunch service starting as early as 11:30am or 11:45am for some staff, but with students starting from 12:00pm and continuing until the conclusion of the lunch service at about 2:00pm.
[10]T 63.2.
[11]‘Contract for the provision of cleaning services to Geelong Grammar School between the First Defendant and Second Defendants for the period 1 January 2008 to 21 December 2012’ in Brett McGinnes v Geelong Grammar School & Anor S CI 2022 01943, which forms part of tendered exhibit 1 (‘Cleaning Contract’).
All four witnesses also agreed Spotless was responsible for the daily cleaning of the Dining Hall floor.
Clarke gave evidence that students would queue at the Dining Hall entrance and await permission from a school staff member to enter in order to control numbers.[12] McGinnes gave evidence that the entrance for students was the south-eastern door, which was where he was heading to exit at the time of the incident.[13] Clarke said that inside the Dining Hall another school staff member was positioned at the door between the exit of the hot servery area and Dining Hall.[14]
[12]T 63.3–16.
[13]T 30.11-15.
[14]T 63.14-16.
McGinnes said the Dining Hall floor would be polished a few times each year. He said the floor was more slippery after polishing and also when the weather was inclement and wet feet tracked moisture across the floor. He said that there were mats around the cold servery area but no other anti-slip solution he was aware of on the floors. He agreed that the fall occurred not in the cold servery area but nearby in the traffic area where people were walking.[15]
[15]T 33.5-6.
Quick was the maintenance manager and reported to McGinnes. Quick said Spotless catering or cleaning staff were responsible for inspecting the Dining Hall floor for spills and were responsible for cleaning up spills.[16] He identified a long term cleaner, David, whose responsibility it was to maintain the floors in the Dining Hall and adjoining spaces.[17] He said that during lunch service David ‘would be on duty in the dish washer room assisting there with students particularly…to load up the dishwasher, rotating – it is a big rotisserie thing, so he would be assisting there as a cleaner nearby’.[18]
[16]T 48.21-23.
[17]T 48.30–49.5.
[18]T 50.1–6.
In cross-examination Quick was asked about the school’s answers to the worker’s Interrogatories.[19] In those answers the school said it had a system for inspecting the floor and that system was for intermittent visual inspection by staff assigned to supervise during mealtimes who would notify spills or other cleaning needed to Spotless.[20] Quick said that he avoided the Dining Hall during lunch times but the answer given made sense to him.[21]
[19]Geelong Grammar School, Answers to Plaintiff’s Interrogatories dated 7 June 2023 in Brett McGinnes v Geelong Grammar School & Anor S CI 2022 01943, [6], which forms part of tendered exhibit 1.
[20]Ibid [6].
[21]T 54.15–19.
Clarke said as part of her role she would inspect the Dining Hall set up before the commencement of the lunch service each day. She said the floors would be cleaned after breakfast and after that time staff would spot clean if needed.[22] She said that during the lunch service the process for cleaning spills was that a teacher or student would alert Spotless staff who would then go to the dishwashing area and a member of the team would come out and clear the spill.[23] A small spill on observation would be immediately wiped by either a Spotless staff member, a teacher or a student with serviettes. For larger spills Spotless would have a staff member stand over the area until a wet floor sign was put in place and would stay until the area was mopped and dried.[24] She was asked about cleaning spills during food service and she agreed that Spotless was required to do so when notified.[25] She was asked about an obligation on Spotless to continuously spot clean. She said she believed Spotless did do so whenever alerted to a spill.
[22] T 76.
[23]T 65.9-13.
[24]T 64.
[25]T 71.
Clarke gave evidence about catering staff levels in the Dining Hall areas during lunch service. She said that there were two staff members in the dishwasher area, one catering supervisor and six or seven catering assistants in the hot servery area and twelve chefs in the kitchen. A chef or other catering staff member would come to refill the salad bar. There would also be a staff member stationed at the High Table and its associated servery area.[26] Clarke added that while Spotless staff would be alert to spills that they observed there was nobody who had a specific role to identify spillages.[27]
[26]T 64.12–24.
[27]T 81.30–31.
O’Connor managed the Spotless cleaning team at the school, which comprised about 25 cleaners. He said one full time cleaner was supplied to the catering team whose main responsibilities were to maintain the floors of both dining halls and servery areas daily and then take on other duties as directed by the catering team. He described that cleaner’s duties as including the use of a machine to wash and scrub the floor and vacuum up the water after every breakfast and lunch service. He said between those duties that cleaner would be directed by catering staff and usually work in the dishwashing area.[28]
[28]T 98.13–99.1.
Both O’Connor and Clarke identified this cleaner as the same David that Quick identified in his evidence. Clarke said David would help in the dishwasher area during the lunch service, supervising the loading and unloading of the dishwasher by students, and after lunch service he would clean the Dining Hall floors.[29]
[29]T 62.16-21; 64.15–17.
McGinnes gave evidence that when he returned to the school after a period of absence because of his injuries, he observed a different system of work. He observed a Spotless team member named Sharon around the salad bar keeping an eye out for spills. Her role was to supervise the salad servery area and if there were spillages she would clean them.[30] Clarke recalled Sharon. She said Sharon supervised the staff serving in the hot servery and she would also go into the Dining Hall and monitor the cold servery area. Clarke agreed Sharon spent time in the Dining Hall during the lunch service and was most likely the person first alerted to a spill in the Dining Hall. Under cross-examination Clarke stated that it was not Sharon’s, or any other Spotless employee’s specific role to look out for spills, but rather all Spotless staff members ‘looked for spills when [they were] in the Dining Hall’.[31]
[30]T 27.1–15.
[31]T 82.29–31.
Clarke gave evidence that she learnt of McGinnes’s fall two days after it occurred. Spotless procedures required her to investigate and identify two corrective actions. She said she looked into the possibility of an anti-slip guard on the floor. She made inquiries with a company whose process involved sanding back the floor. That was a step that required the school’s approval and so she forwarded the quote to the school. That action was not taken. She was not asked directly what the second corrective action was, but thought that Spotless’s process of having an employee stand near a spill to alert others that it needed to be cleaned up ‘might have been [brought in] after Brett’s accident as a corrective action’.[32]
[32]T 74.21–26.
Both Quick and O’Connor gave evidence that they were not aware of any corrective actions taken after the incident.[33]
[33]T 102.16–21; 57.6–19.
The catering contract and the cleaning contract in force between Spotless and the school at the time of McGinnes’s fall were both in evidence. Each contract contained a ‘Statement of Service Requirements’ setting out the school’s service requirements.
The cleaning contract service requirements set out that the contractor:
Is responsible to ensure:
Cleanliness throughout the site as specified
Continuous spot cleaning and minor maintenance as required
…
Minimum cleaning standards were specified. Cleaning specifications for the Dining Halls were:
DINING HALLS
Daily
Floors swept and spot mopped Machine buff
Passage swept and mopped
End of Term
Floors stripped and polished as required
Yearly
Major high clean of walls, ceiling & light fittings
The catering contract Statement of Service Requirements included:
Cleaning
The Contractor will be responsible under this contract for cleaning the entire kitchen complex including:
·Kitchen,
·Wet and dry storage areas,
·Waste areas,
·Serveries,
·Dining and Darling Halls,
·Contractor staff areas,
·Dishwasher areas
·All corridors and access areas.
In addition to this evidence about the daily system in place in the Dining Hall, there was evidence as to the process involved in stripping and resealing the timber floor during the term breaks. This was organised by Spotless in co-ordination with Quick and carried out by a subcontractor for the purpose of preserving the floor and its presentation. The evidence was that the process of resurfacing was next due to occur shortly after McGinnes’s fall.[34]
[34]T 45.21–22.
There was contradictory evidence about the colour and finish of the floor. McGinnes believed that the floor surface at the time of his fall was a lighter colour than that demonstrated by more recent photographs. No other witness thought the floor colour and finish had changed since March 2016 and ultimately the plaintiff conceded that McGinnes’s recollection in this regard was not correct.
Submissions
The plaintiff submits that while Spotless had a system of cleaning following the breakfast and lunch service it did not have an adequate system of inspection for the detection and cleaning of food spills during meal services. It submits that the floor was last cleaned after breakfast[35] at approximately 8:30am or 9:00am, but at the very least there had been no cleaning since the lunch service began at about 11:30am until the time of the incident at 1:00pm. The contractual requirement that Spotless carry out continuous spot cleaning informed the content of its common law duty of care owed to those using the Dining Hall. Spotless had no system providing for continuous spot cleaning during meal services. The plaintiff submits that in order to adequately discharge its duty of care, Spotless ought to have had someone present in the Dining Hall during the service period who was designated to look for possible spills. Incidental observance by Spotless staff while in the Dining Hall was not sufficient where the prospect of spillage and therefore the presence of slip hazards was high during meal services.
[35]Spotless, Answers to Plaintiff’s Interrogatories dated 7 June 2023 in Brett McGinnes v Geelong Grammar School & Anor S CI 2022 01943, [9(d)] which forms part of tendered exhibit 1.
The plaintiff pointed to McGinnes’ evidence that after his fall a Spotless staff member, Sharon, was stationed near the cold servery area during meal service and was actively detecting spills around that area. The plaintiff submits that cold servery area was known to be a high risk area for spills and for water pooling from the refrigeration, as demonstrated by the placement of non-slip mats around the servery. The plaintiff says the mats and presence of Sharon demonstrate Spotless readily identified the need for staff to be present to attend to spot cleaning during times of high likelihood, if not certainty, that spillage or pooling of water would occur.
The plaintiff submits that Spotless needed to have a system of inspection itself and not rely on a reactive system of responding to reported spills. This was so notwithstanding the fact that the school also had a system of intermittent visual inspection. The plaintiff submits that the absence of any system for identification of spills means Spotless breached its duty of care owed to the worker. As to whether that breach was a cause of the injury, the plaintiff accepts that there is no evidence as to how long the soup had been on the floor and that consequently the matter falls to be determined from drawing inferences from the available facts, including an inference as to how long the spill was likely to have been present. On this, the plaintiff relies on Strong v Woolworths Ltd (‘Strong v Woolworths’).[36] It submits that the absence of evidence as to any cleaning by Spotless after 11:30am that morning is sufficient to infer that a proactive system of inspection for the purpose of detection would probably have identified the spill before the worker slipped.
[36]Strong v Woolworths Ltd (2012) 246 CLR 182 (‘Strong v Woolworths’).
The plaintiff accepts that the school also had a duty to detect spillages and act, either by picking up the spilt food by serviette or by notifying a Spotless staff member to clean the area. It submits that although the school had a non-delegable duty to McGinnes as his employer, and to students as a school authority, the negligence of Spotless made the greater contribution to the injury because Spotless dealt specifically with the Dining Hall and because Spotless undertook the vast majority of tasks associated with catering and cleaning. The plaintiff submits that Factor X therefore ought be a percentage greater than 50%.
Although the opening and the evidence addressed a claim that the surface of the floor itself was slippery and that reasonable care required the application of an anti-slip finish, this claim was not pressed in final submissions. Similarly a contention arising from the lay evidence that matting ought to have been placed along the traffic corridors was not pressed.
The defendant accepts that it owed a duty to McGinnes as the cleaning and catering contractor. The defendant characterises this duty as a duty to act as an experienced caterer and/or cleaner informed by the contractual tasks that it is undertaking. Spotless’s duty to third parties is informed by these relevant matters because a duty to take reasonable care would not impose an obligation outside the bounds of the contract between Spotless and the school. The defendant submits the contractual obligation to undertake ‘continuous spot cleaning’ should not elide with instantaneous spot cleaning. Nor should the contractual qualification ‘as required’ be overlooked.
Although not a case calling for construction of the contract between the school and Spotless, the defendant submits that the duty should be informed by not imposing an obligation that leads to an unreasonable result. The contractual terms in the cleaning contract required performance to the satisfaction of the school[37] and in accordance with professional standards expected of those experienced in such activities.[38] The defendant highlights that there is no evidence of a lack of reasonable satisfaction on the part of the school with Spotless’s performance, nor expert evidence as to any deficiencies in the level of professionalism shown by Spotless.
[37]Cleaning Contract cl 2.1.1.
[38]Cleaning Contract cl 2.1.3.
The defendant therefore submits that the cleaning contract required Spotless to have the resources to respond in a reasonably short timeframe when notified, as it did in this case, but not to monitor or maintain an inspection regime.[39] Spotless pointed to the school’s system for inspection during meal services as disclosed by the school’s answers to interrogatories – being intermittent inspection by supervising staff. By contrast, Spotless was required to be responsive to reports or to its own staff observations. Its system was that, where Spotless staff were present in the Dining Hall, they were to keep a lookout.
[39]T 128.9-16.
The defendant submits that, in the absence of any evidence, the only inference that can be drawn was that the spill was present for a very short time. The evidence does not permit the inference that there was a defect in the school’s system of inspection and reporting to Spotless, nor a defect in Spotless’s system of responding to its own or others’ reported observations. The defendant submits that the reasoning in Strong v Woolworths on causation does not apply in this case because there was direct evidence about the time period in which soup was served and because an inference could be drawn from the size of the wet patch on the worker’s trouser leg that the spillage remained pooled on the floor for only a short time. The defendant submits that I could not draw an inference that the spill had been present for sufficient time that a proper inspection system would have identified the spill and removed it prior to the fall.
The defendant submits that if a legal liability to pay damages was established then the liability would be very small compared to the contribution of the school’s negligence to the injury.
Consideration
It was accepted by both parties that Spotless owed the worker a duty of care. It was also accepted that the risk of injury from food spillage during meal service was a foreseeable risk. There were different formulations as to what was required in order to respond to that risk. It is convenient to look first at the duty owed by the school. As the employer of the worker, the school had a non-delegable duty to ensure that reasonable care was taken by others, including Spotless. The school did turn its mind to its own need to inspect the floor for spillage for the safety of staff and students. It instructed the school staff present in the Dining Hall for the purpose of supervising students to also perform intermittent visual inspections and notify Spotless staff of any spillages that required cleaning. This was not contentious.
In the context of the school undertaking these inspections Spotless contended that its duty of care, informed by the contractual arrangements with the school, did not require it to conduct systematic inspections of the Dining Hall floor for spillage during lunch service. However, this submission sat uncomfortably with the firm evidence, of Clarke in particular, that all Spotless staff were expected to be alert to spillages and to respond when they themselves saw a spill.[40]
[40]For example, T 75.22-27.
The contractual requirement to spot clean ‘as required’ does in my view embrace an element of inspection by Spotless. Whilst I agree that the cleaning and catering contractor was not required to be everywhere at all times, contractual silence as to inspection does not remove the need to have a system for the identification of particular hazards arising from the work under the contract. While notification by the school staff and students may on occasion be appropriate to enliven a need to spot clean, other circumstances would require the cleaning and/or catering contractor themselves to be alert to a need to inspect for, identify and spot clean slipping hazards, including spillages. The distinction can be illustrated by the difference between a need to spot clean something in an area where one would not ordinarily expect to find it such as a library or office, and a need to spot clean in high traffic areas including a dining room with self-serve arrangements for diners. In the former, notification by users of the area to Spotless might be required, in the latter a system to inspect for spillages likely to occur such as over the course of meal services would be required. The caterer operating the meal service, with a dedicated full time cleaner for that space, does have an obligation to take proactive steps to identify spills and other slipping hazards such as wet floors during times of high traffic. In the context of slipping cases in supermarkets, the same distinction is made by Phillips JA when he said:
Of course, the standard of care required in any given case will always depend upon the particular circumstances and…what particular measures will discharge that obligation will depend in part upon the frequency with which such spillages may reasonably be expected to occur.[41]
[41]Kocis v SE Dickens Pty Ltd (t/as Coles New World Supermarket) [1998] 3 VR 408, 413 (‘Kocis v SE Dickens’).
Neither the express terms of the contract, nor a reasonable response to the risk of slipping, confined Spotless to a reactive role to clean only when advised of the need to spot clean by a school staff member or student or when a Spotless staff member incidentally identified such a need during lunch service. It is entirely foreseeable that a dining hall in which large numbers of diners are engaged in self-service and transporting trays of food and drink to and from tables presents a high risk of spillage. A caterer who is also responsible for cleaning the area has a duty to have a system in place to address that likely risk. Insofar as the contract informs the content of the duty of care, it is relevant that the catering contract itself provided for a full time cleaner in the areas under the operation of the catering contract. Whilst the reasonableness of the system may be informed by the fact that the school also has an obligation to have a system of inspecting, reporting and at times cleaning slip hazards, that does not mean that Spotless did not itself owe a duty to have some system of inspection to identify spillages requiring cleaning. The resources required of Spotless to have such a system are informed by the concurrent duty of the school being discharged through the intermittent inspection undertaken by supervising teachers.
The evidence was that the catering staff had a dedicated full-time cleaning staff member David, in addition to more than 20 catering staff on hand during the lunch services. The majority of catering staff were either in the hot servery area or the kitchen during the lunch service and there seemed to be only one catering staff member in the Dining Hall itself, stationed near the High Table. Other than that, a catering staff member who was otherwise occupied in the hot servery area or a member of the kitchen staff would intermittently inspect the cold servery area located in the Dining Hall and replenish it as needed. Given the numbers of people walking around the Dining Hall carrying trays of food, a reasonable person with both catering and cleaning responsibilities would have some system of inspection in place for spillages in the high traffic areas throughout the lunch service. I accept that a reasonable system of inspection did not require continuous observation or immediate spot cleaning. The size of the area to be inspected – covering not only the Dining Hall but a second dining hall used by the junior and middle school as well as the kitchen, dishwasher and servery areas –, as well as the number of people – upward of 400 at any time – would make this a standard of perfection. Insofar as the inspection occurred in an incidental fashion, it seemed confined to the area around the cold servery and perhaps the High Table.
The defendant submits that its staff were engaged in keeping a lookout for slip hazards. As Clarke said ‘safety is everybody’s responsibility’.[42] That is true as far as it goes because everyone has a duty to take reasonable care for their own safety. However that does not answer the question of what is required to take reasonable care for the safety of others. I have some doubt that, in areas where spillages or other slip hazards are high, incidental observation by cleaning and catering staff while attending to other tasks could be described as a system. It could equally be characterised as an absence of a system as was conceded by Woolworths in the case of Strong v Woolworths. Given the small number of Spotless staff in the Dining Hall during meal service there was little opportunity for even incidental inspection. Either way, whether there was no system or the system in place was not an adequate response to the risk, Spotless was in breach of its duty of care.
[42]T 75.29.
Although the plaintiff suggested that a static post near the cold servery would be a reasonable response I do not accept that this is so. The cold servery area had a high risk of spillage for a combination of reasons and the presence of mats in that area was an additional step that met this increased risk. There is no basis on which to infer that the nearness of the cold servery was of any particular relevance to the presence of the spilt soup. The spill was located in the high traffic corridor along which people moved between serveries and tables. These high traffic areas need some system of inspection by Spotless. Accepting that the size of the area to be inspected, whether the total area being used for the service or just the Dining Hall itself, could not be continuously observed from one static position, a reasonable inspection regime would necessarily involve movement to observe all areas and so not involve continuous observation.
The question remaining is whether that negligence was a cause of the worker’s injury.
Strong v Woolworths concerned what was described as:
The familiar difficulty in “slipping cases” of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff’s injury when it is not known when the slippery substance was deposited.[43]
[43]Strong v Woolworths (n 36) 187.
Woolworths was sued as occupier of the area where Ms Strong fell and she succeeded against Woolworths at trial. Woolworths did not challenge the finding that it did not have any system in place for the periodic cleaning of the area. It appealed on the question of whether the plaintiff had established that its negligence was a cause of the injury. The NSW Court of Appeal had held that it was not open to infer that the chip had been on the ground long enough to be detected and removed by an adequate cleaning system. The question then went to the High Court of Australia.
Strong v Woolworths has some similar factual characteristics to the present case. Ms Strong, like the worker here, used crutches because of a childhood leg amputation. She slipped on a chip left on the floor. The chip and the grease mark were observed at the time of her fall. As in this case, there was no direct evidence as to the length of time the chip had been present. The fall in Strong v Woolworths occurred at approximately 12:30pm, accepted as being during the lunchtime period near the food court of the shopping centre.
However, there are also some important differences. Woolworths was an occupier, Spotless a contractor operating at the premises of the school. There was a ‘people greeter’ employed by Woolworths who was required to ‘keep an eye out for spillages’ within the area of Woolworth’s occupation, however Woolworths accepted that it did not but should have had a system for periodic inspection in place on the day of the incident. The cleaning contract for the shopping centre between the centre owner and the cleaning contractor did not extend to the area occupied by Woolworths where the plaintiff fell, but it stipulated that the adjacent food court area was to be cleaned every 15 or 20 minutes by the cleaning contractor.[44] The Court of Appeal had concluded that reasonable care did not require the continuous presence of a person looking out for slippery substances and approached the question of what a reasonable system did require by reference to the 15 or 20 minute periodic inspection and cleaning required under the contract for the adjacent area. That finding was not challenged. Here the plaintiff has not led evidence of a reasonable periodic inspection regime and Spotless makes no such concession.
[44]A discrepancy between the contract documents and the evidence of the cleaner on the day.
The relevant issue in Strong v Woolworths in this context is whether a reasonable system of inspection and cleaning was, on the balance of probabilities, a cause of injury. On that question, the High Court found the plaintiff did not need to point to some evidence permitting an inference to be drawn concerning when the chip was deposited. In discharging the onus to prove that the failure to have a system was a cause of the fall, it was incumbent on a plaintiff:
to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited.
…
Reasonable care required inspection and removal of slipping hazards at intervals not greater than twenty minutes in the sidewalk sales area, which was adjacent to the food court. The evidence did not permit a finding of when, in the interval between 8 am and 12.30 pm, the chip came to be deposited in that area…The probabilities favoured the conclusion that the chip was deposited in the longer period between 8 am and 12.10 pm and not the shorter period between 12.10 pm and the time of the fall.[45]
[45]Strong v Woolworths (n 36) 197 [34], 198 [38].
The evidence in this case identified two discrete periods each of which is quite different in terms of the risk of spillage. First, in the time after the breakfast service which ends at 8:30am or 9:00am, the Dining Hall is not in use by staff and students and only Spotless staff are engaged in cleaning including cleaning the floors and setting up for the next meal service. Second, the lunch service itself commences with early service for staff members from about 11:30am or 11.45am and for students and staff staggered from 12:00pm.
Clarke’s evidence was that she would visit the Dining Hall every day to check the standard of the food and the presentation of the table. She would also check the serveries. Although she did not specifically say so, I infer from her evidence about staff members being required to be alert to spills while going about their business, that in her inspection each day she would do this. On the basis of this evidence, I conclude that the spilling of a soup hazard is not one with an equal likelihood of occurring throughout the day but one probably occurring during the lunch service.
McGinnes described the liquid as smelling like soup. Other than inferring that it was probably spilt during the lunch service where it was served, that tells me little if anything about when it was spilt. There was no evidence whether it was hot or cold. There were no visual observations of the spill, before or after, that were described. The defendant submitted that the size of the wet patch on McGinnes’s pants was evidence from which I should infer that the spill had been present only a short time because it had been in a busy thoroughfare where in time foot traffic would have dissipated the liquid and there would be smudge marks up and down the floor.[46] I am not prepared to draw that inference. It seems to me to depend on a number of variables not addressed by the evidence which would make it little more than speculation. These include the size of the initial spill itself, an assumption that the trouser leg landed in the exact same spot as the slip of the foot in pooled liquid rather than nearby in some of the spill dispersed by foot traffic, and the absence of any evidence one way or the other about smudge marks.
[46]T 133.17-25.
In those circumstances, the ‘probability reasoning’ in Strong v Woolworths is relevant to the question of causation. The time in question is the 90-minute period from the start of the lunch service which, on the basis of Clarke’s evidence I accept commenced at 11:30am for some staff,[47] until 1:00pm when the fall occurred.
[47]T 73.25.30.
As mentioned, the evidence in this case did not address the frequency of any inspection that should occur by Spotless staff during lunch service. In this way it is unlike the evidence upon which Strongv Woolworths was decided, which determined the probabilities as to causation by reference to a 15 minute periodic inspection regime over a four and a half hour period. However it is not fatal to the plaintiff’s case that it has not identified the frequency with which a reasonable periodic inspection during lunch service ought be carried out.
Phillips JA in Kocis v SE Dickens Pty Ltd[48] observed that the question of causation, a question of fact, is addressed to the actual act or omission of a defendant that amounts to negligence; whether that be the lack of a system, the inadequacy of the system or the failure to follow a reasonable system at a particular time. His Honour said:
…if a defendant has no system at all in place for periodic inspection or cleaning…it is surely not difficult to see how a jury could find not only that the defendant was negligent but that the negligence was causally linked to the plaintiff’s injury. And where the defendant has a system for periodic inspection and cleaning in place but for some reason or other it was not in operation on the day in question, it would seem to follow that the longer the period since the last actual cleaning of the floor or the last actual inspection for spillages, the easier it will be for the jury to conclude that on the balance of probabilities the defendant’s negligence was indeed a cause of the plaintiff’s injury. In either case, the plaintiff’s case may be the stronger according to the number of periodic inspections that in the opinion of the jury should have occurred…but the timing of the last regular inspection for spillage…will not bear directly upon the issue of causation, at least where the negligence consists of more than one such neglect and failure…If the negligence lies in the defendant’s failure to inspect and clean over a number of hours or perhaps even days, the question is whether that neglect – and not something less than that – was more probably than not a cause of the plaintiff’s injury.[49]
[48]Kocis v SE Dickens (n 41).
[49]Ibid 419.
The worker’s fall occurred 90 minutes into a two and a half hour lunch service, at a time when three-fifths of the total service time had elapsed without any periodic inspection at all. Given the high likelihood of spills occurring during that time frame it is probable that the failure to have any system of inspection throughout this 90 minute time period was a cause of the worker’s injury. The causal potency might be increased by evidence as to the frequency of inspection during that time required by a reasonable person in the position of a catering and cleaning contractor, but the absence of any systemic inspection for more than half the entire period of lunch service can readily demonstrate a conclusion that Spotless’s negligence is a probable cause of the worker’s injury.
This reasoning is sound even though an actual finding of when the soup was spilt cannot be made. The majority in Strong v Woolworths referred to the observations of Hayne JA, as he then was, who said:
In my view it is of the first importance to bear steadily in mind that a plaintiff must prove his or her case on the balance of probabilities and that it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. Thus, a jury may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not probability) that the substance was spilled only a moment before the plaintiff slipped on it. The question of causation is to be resolved by consideration of the probabilities.[50]
[50]Ibid 430, cited in Strong v Woolworths (n 36) 197 [34].
I do not accept the submission that Strong v Woolworths is distinguishable. Although it concerned the duty owed by an occupier supermarket, its approach as to reasoning on causation in relation to duties owed by those in relation to slipping hazards is applicable to the present facts.
The plaintiff has satisfied me that on the balance of probabilities the negligence of Spotless was a cause of the worker’s injury loss and damage.
As to Factor X, I have to consider the extent to which the act, default or negligence of both the school and Spotless caused or contributed to the worker’s injury. In making that apportionment, two elements are involved: culpability and the relative importance of the causal acts. Podrebersek v Australian Iron & Steel Pty Ltd says:
a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage… It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[51]
[51](1985) 59 ALJR 492, 494 (citations omitted).
The school owes a non-delegable duty of care to its staff including the worker and to its students. A duty of that nature is personal, it is one where a person:
has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his [or her] property as to assume a particular responsibility for his [or her] or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.[52]
[52]Kondis v State Transport Authority (1984) 154 CLR 672, 687.
It is often described as a duty to ensure that reasonable care is taken which cannot be delegated to others and so is more stringent than a duty to take reasonable care.[53]
[53]Commonwealth v Introvigne (1982) 150 CLR 258, 271, (Mason J, as he then was).
There were a number of school staff members supervising students in the Dining Hall during lunch service. Those people were to look out for spillages, incidental to their presence for supervisory purposes which would principally have been directed at the behaviour of students. According to the school’s answers to interrogatories, the school staff understood that Spotless was responsible for cleaning the floors and they were to notify a Spotless staff member who was responsible for the system of cleaning of any spillages that required cleaning.[54] That answer does not exclude Spotless having a system itself for inspection. The school’s inspection of the Dining Hall floor during lunch service was a step that supplemented the system of cleaning provided by Spotless. This was no doubt informed by the busy and crowded nature of the Dining Hall during meals and the difficult task of identifying spills as quickly as can reasonably occur.
[54]Geelong Grammar School, Answers to Plaintiff’s Interrogatories dated 7 June 2023 in Brett McGinnes v Geelong Grammar School & Anor S CI 2022 01943, [6(c)] which forms part of tendered exhibit 1.
Given the non-delegable nature of the school’s duty of care I do not accept the submission that its liability is small by comparison to that of Spotless. The school’s culpability may be less, however it is also relevant to look at the broader actions of the school and its steps to ensure that Spotless took reasonable care in the tasks required by the school. While there is evidence that the school took a very strict approach to oversight of cleaning with O’Connor giving the example of being required to clean the main staircase with a toothbrush when muddy, there is nothing to suggest that the school turned its mind to ensuring Spotless staff were taking reasonable care to address the risk of injury from spillage during meal services. Quick, as mentioned above, assumed that Spotless was responsible for inspecting.
The breach of duty by Spotless was a systemic breach – a failure to have in place a system that responded to the foreseeable risk of spillage in the Dining Hall and a reliance primarily on third party reports. It was not a particular failure on the day of the worker’s injury of a system that, if followed, would have demonstrated a reasonable response. In the absence of any evidence about the frequency that reasonable care might demand of Spotless in discharging its own obligation to inspect for spills during meal service, the evidence supporting a case for causal potency of any breach by Spotless is not as strong as might otherwise be argued.
In those circumstances, I would identify Factor X as 60% liability of Spotless.
I will hear the parties on the appropriate form of orders and as to costs.
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