Westfield not liable to plaintiff for non-party independent cleaner’s negligence
Delegation of cleaning duties to independent cleaning contractor absolved occupier shopping centre from liability for serious injuries following slip and fall in common area.
- Whether delegation of cleaning duties to independent contractor absolved shopping centre occupier of liability to plaintiff.
On 14 November 2009, Mrs Stringer (the first plaintiff) and her husband, Mr Stringer (the second plaintiff), were shopping at Westfield West Lakes (Westfield). Whilst walking in a common area, the first plaintiff slipped and fell, fracturing her right ankle and injuring her right arm and her chin.
The plaintiffs issued proceedings against Westfield as the occupier, claiming that the first plaintiff had slipped on some liquid which had leaked from an adjacent bin and which Westfield had failed to ensure was cleaned.
Westfield asserted that it had delegated its duties of cleaning of the premises to Reflections Cleaning Pty Ltd (the cleaner), being the cleaner identified on the CCTV footage, and thus it had discharged its duty of care.
The terms of the cleaning contract obliged the cleaner to indemnify and insure Westfield. However, some time after the accident, the cleaner ceased to trade and was placed into liquidation. No application was made by any party to join the cleaner or its insurer as a party to the proceedings.
The issues for the court to determine included whether Westfield owed the first plaintiff a non-delegable duty of care, whether Westfield had discharged its duty of care by engaging the cleaner and whether Westfield was vicariously liable for the actions of the cleaner and/or its employee.
Decision at trial
The court noted that it is now settled law that an occupier is not the insurer of the safety of its patrons even where work is performed at its premises by another. Accordingly, the relevant duty owed by Westfield was found to be a delegable duty.
It was found that Westfield discharged its duty of care by engaging a competent cleaner to fulfil its duty to its patrons. Westfield showed reasonable care (a) in selecting that contractor; (b) by imposing appropriate terms and conditions upon the cleaner in the cleaning contract; and (c) by monitoring the compliance by the cleaner with its obligations under the cleaning contract.
The court found that Westfield had engaged the cleaner as an independent contractor to undertake the cleaning work and could not be held liable for a failure by the independent contractor to control its system of work. Accordingly, Westfield was not vicariously liable for the negligence of the cleaner, nor its employee.
Implications for you
This case highlights the importance of using care in engaging and retaining contractors and in ensuring that the terms of the retainer include appropriate obligations to carry out their duties. In this case, the onerous and detailed conditions in the cleaning contract were critical in satisfying the court that Westfield had discharged its duty of care. Also critical was evidence from Westfield’s Facilities Manager of the system used and steps taken to monitor the performance of the cleaner’s duties.
The court refused to speculate on why the cleaner was not a party to the proceedings and commented that the plaintiffs did not and could not have known who had spilt the liquid which caused the slip and fall. It would be surprising if the plaintiffs’ legal representatives had not attempted to ascertain this with a request for particulars or discovery and interrogatories. As a result of their apparent failure to do so, the plaintiffs were deprived of damages which were assessed by the court at just over $330,000.