Shopping centre escapes liability for injury to shopper23 November 2017 | Commercial Premises
Full Court affirms supermarket occupier delegated duty of care to contract cleaner and not liable for slip injuries.
- Whether Westfield properly delegated its duty of care.
- Whether Westfield was vicariously liable for the negligence of a contract cleaner.
On 14 November 2009, Mrs Stringer (the first Appellant) and her husband, Mr Stringer (the second Appellant), were shopping at Westfield West Lakes (Westfield). Whilst walking in a common area, the first Appellant slipped and fell, fracturing her right ankle and injuring her right arm and her chin.
The Appellants issued proceedings against Westfield as the occupier, claiming that the first Appellant had slipped on some liquid near a bin, which Westfield had failed to ensure was cleaned.
Westfield asserted that it had delegated cleaning of the premises to Reflections Cleaning Pty Ltd (Reflections). Some time after the incident, Reflections ceased to trade and was placed into liquidation. No application was made by any party to join Reflections or its insurer as a party to the proceedings.
The issues included whether Westfield had discharged its duty of care by engaging Reflections and whether Westfield was vicariously liable for the actions of Reflections and/or its employee.
The 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 delegable. 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.
The Issues on Appeal
Five grounds were argued on appeal. The first was that the Appellants had suffered procedural unfairness as a result of the trial judge rejecting evidence regarding the liquid and finding that it was deposited by Reflections changing the bin. Secondly, that Westfield had not properly delegated its duty of care by engaging Reflections. Thirdly, that Westfield was vicariously liable for Reflections. It was also argued that Westfield was liable under Section 23 of the Occupational Health Safety and Welfare Act 1986 (SA) (the OHSW Act). Finally, it was argued that the trial judge delivered inadequate reasons given the two year delay between the trial and the judgment.
The Decision on Appeal
All five grounds of appeal were rejected and the appeal dismissed.
It was found that the trial judge was correct in finding the spill was caused by the cleaner who stopped to change a nearby bin liner, spilt some liquid around their trolley then failed to mop it up. This demonstrated that the act of negligence was a “one-off” and not indicative of systematic negligence.
On the issue of whether Westfield had reasonably and effectively delegated the duty of care, the Full Court held that the trial judge was correct to conclude that Westfield had delegated its duty of care, and any breach of the duty as occupier was not, in the circumstances, causative of the accident, because any negligent failure to have selected an alternative cleaning contractor or imposed different contractual obligations had no bearing on the contract cleaner’s failure to mop up a spillage immediately.
The Full Court agreed that Westfield was not vicariously liable for the actions of the employee of the cleaning contractor. The contract between Westfield and Reflections specifically renounced an employer/employee relationship and a number of other factors weighed against a finding that Reflections was acting as an entity standing in the shoes of Westfield.
Without expressly deciding whether s23 of the OHSW Act gave rise to a civil duty of care, the Full Court held that there had been no breach of any such duty because there was nothing Westfield could have done to prevent the cleaner’s act of carelessness in spilling the liquid when emptying the bin liner.
Finally, although the delay between the trial and the judgment was lengthy and therefore unfortunate, it did not give rise to any error.
Implications for you
The Full Court’s decision is a useful reminder of the factors a court will consider when assessing whether an occupier’s duty of care has been delegated to another. The decision also helpfully explains the distinction between the legal onus of proof and the evidentiary onus in such a situation, and clarifies that if an occupier leads evidence suggesting its duty of care has been delegated, it is necessary for the plaintiff to lead evidence rebutting such delegation.