Cleaner victorious despite missing the spill Cleaner victorious despite missing the spill

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Cleaner victorious despite missing the spill

14 September 2018 | Insurance Issues

Despite concluding that a shopping centre cleaner had failed to identify a spill in a mall area, the NSW Court of Appeal overturned the trial judge’s finding that the cleaner had been negligent.

In issue

  • Did the cleaner commit an act of negligence by failing to identify and remove a clear spill on a shopping centre floor?   

The background

On 28 December 2013, the plaintiff was walking with his daughter in the Westfield shopping centre at Liverpool (the centre), when he slipped on a patch of water on the floor in the mall area and sustained injuries. He commenced District Court proceedings against the centre (which were resolved by consent prior to trial), and Atlantic Cleaning and Security Pty Ltd (Atlantic), the cleaning contractor at the centre. As Atlantic went into liquidation, its insurer, Argo Managing Agency Ltd (Argo), was substituted for Atlantic.

The decision at trial

The plaintiff gave evidence that he was walking through the common area of the centre when he slipped on water on the floor and fell. He did not see the water.

CCTV footage established that the plaintiff fell at 10.44am. It further showed that two cleaners had inspected the area prior to the incident; the first at 10.35am and the second at 10.43am. The evidence of the first cleaner was that there was no water on the floor at the time of her rotation, and this was accepted by the court. The plaintiff argued that the second cleaner committed an act of negligence by failing to detect and clean up the water moments before the fall.   

Whilst the trial judge accepted that Atlantic had an adequate system of cleaning in place, his Honour held that the cleaner had committed an act of negligence by failing to detect the water. His Honour found the cleaner was remiss in his duties for failing to look to his left whilst conducting his inspection and, as a result, failed to identify the wet patch. The trial judge found that the spillage extended at least a metre in one direction and should have been noticed and removed. His Honour concluded that the wet patch had caused the plaintiff to slip. Therefore the cleaner’s negligence caused the plaintiff’s injuries. Argo appealed.

The issues on appeal

The primary issues on appeal were whether the water was present on the floor at the time of the second cleaner’s inspection and, if so, whether the trial judge was correct in concluding that the cleaner should have detected the water had he been exercising reasonable care. 

The decision at appeal

Argo was successful on appeal.

Despite careful scrutiny of the CCTV footage, there was no evidence as to when the incident occurred.  Therefore, consistent with the approach taken in Kocis v SE Dickens Pty Ltd, the Court of Appeal had recourse to probability analysis to conclude that the spill occurred during the 10 minutes prior to the cleaner inspecting the area rather than the 90 seconds that elapsed between the passing of the cleaner and the incident. 

In dealing with a breach, the Court of Appeal confirmed that commercial cleaners owe a duty to exercise reasonable care to detect and remove potential hazards (such as wet patches on terrazzo flooring). The relevant standard is that of a cleaner discharging his or her duties with reasonable diligence and care.

The majority of the Court of Appeal held that the cleaner’s failure to detect the water did not support a finding that he had failed to exercise reasonable diligence and care.  In reaching this conclusion, the court took into account the difficulty associated with observing a clear spill on terrazzo flooring along with the fact that the cleaner was obliged to perform a variety of duties in addition to inspecting the floor. Importantly, the majority held that the cleaner’s duty did not extend to guaranteeing that all hazards would be removed from the floor. 

The plaintiff endeavoured to make mileage out of the CCTV footage that showed the cleaner looking ahead as he passed the spill rather than moving his head to the left and right in order to inspect the floor either side of his trolley. In response to the submission that this constituted evidence that the cleaner failed to carry out a proper inspection of the floor, the Court of Appeal disagreed and held that it could not be inferred simply from the cleaner’s failure to move his head regularly from side to side that he did not keep a reasonable look out for hazards on both sides of the trolley as he moved forward.

The court went on caution parties about the dangers of relying heavily on CCTV footage in circumstances where the footage was not clear and could actually be misleading about the factual circumstances of the incident. In this case, the CCTV camera was some distance from the incident and was not sufficiently clear on its own to enable the court to make a finding of breach.

Implications for you

The decision follows on from decisions like Woolworths Limited v McQuillan which emphasise that commercial cleaners are to be held to a standard of reasonable care rather than perfection. As highlighted in the present case, reasonable care does not guarantee that all hazards will be removed. Consequently, the failure of a cleaner to detect and remove a particular hazard is not necessarily evidence of negligence. In determining negligence, the court will consider a variety of factors including, most relevantly, the size and colour of the spill.

The case also highlights the risks associated with relying heavily on CCTV footage. In the absence of expert evidence interpreting the footage, the Court of Appeal said that the footage was of limited use in determining breach. If parties wish to maximise the utility of CCTV footage, consideration should be given to engaging experts to enhance and interpret the video footage. 

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Nick Robson

Nick Robson

Special Counsel

Dean Cupac

Dean Cupac

Associate