Imperfect does not always equate to negligent: the Court of Appeal further refines the parameters of 'reasonable' inspections
Originally Published by Lia Sparks on Thursday, August 23, 2018 11:39:39 AM
A customer slipped on a wet patch in the common area of a shopping centre. A cleaner had performed a rotation past the location of the accident, approximately 90 seconds prior to the accident. Should the cleaner be found to have committed a casual act of negligence for failing to identify and remedy the hazard? The Court of Appeal answered this question in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176.
Author: Lia Sparks
Judgment Date: 15 August 2018
Citation: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Jurisdiction: NSW Court of Appeal
The plaintiff was walking with his daughter in Westfield Shopping Centre, Liverpool, when he slipped and fell on a patch of water in the public area of the Centre, sustaining injury. The plaintiff commenced proceedings in the District Court of New South Wales against the Scentre Shopping Centre Management Ltd, later also joining the cleaners, Atlantic Cleaning and Security Pty Ltd (Atlantic). Ultimately, Atlantic's insurer, Argo Managing Agency Ltd (Argo) was substituted for Atlantic.
The plaintiff settled his claim with Scentre prior to the hearing.
The matter progressed against Argo in the District Court of New South Wales before Maiden DCJ ('the primary judge').
With the aid of CCTV footage, it was established that the plaintiff fell at 10.44.29am. It was also established that two cleaners passed the vicinity of the fall prior to the accident, 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 generally accepted by the primary judge and the parties. The central liability argument against Atlantic was that the second cleaner had engaged in a casual act of negligence in failing to detect the water at the accident site in the minute prior to the plaintiff's fall.
The primary judge ultimately found in favour of the plaintiff, accepting that it was probable the water was present on the floor at the time the second cleaner passed the accident site, and that the second cleaner had failed to exercise reasonable care to prevent the risk of injury materialising by failing to detect the water. In particular, the primary judge found that the second cleaner had failed to look to his left, and had he done so, he ought to have seen the water.
The New South Wales Court of Appeal1 allowed Argo’s appeal.
The Court jointly found that, consistent with the High Court’s decision of Strong v Woolworths Ltd2 it was open to the primary judge to apply probability theory to find that the water on the floor of the Centre was likely to have been present when the second cleaner passed, as all things being equal it was more likely that the wet patch was created during the eight minutes between the first and second cleaners’ rotations than during the approximately 90 seconds between the second cleaner’s rotation and the accident.
The Court was however split as to the balance of the judgment.
Sackville AJA, who delivered the majority decision with McColl JA agreeing (White JA dissenting), found that the primary judge erred in finding that there was a casual act of negligence on the part of the second cleaner, which caused the plaintiff’s accident. His Honour observed that the duty owed by Atlantic and its employed cleaner was to exercise reasonable care in the course of its duties to identify and remove hazards. There was no guarantee that all hazards would be removed. Specifically, his Honour found that:
White JA, dissenting, found that the plaintiff’s evidence was that there was a large quantity of water on the floor, and given Argo did not call evidence to contradict that, it followed that the Court must accept the water was over more than just a small area. Once that was accepted, White JA opined that it must be found that the cleaner, acting reasonably, should have seen and dealt with it.
This decision builds upon other recent decisions in the NSW Court of Appeal and High Court of Australia which are assisting defendants to defend systems-based negligence claims. In particular, this decision affirms the decision of Woolworths Ltd v McQuillan3 - where it was found that an occupier’s duty of care was limited to that of a reasonable system for inspection and safety, rather than a perfect system – and extends this line of reasoning beyond occupiers and to the actual service providers such as cleaners who provide the systems that occupiers can rely upon.
The decision also affirms the application of the Strong v Woolworths Ltd4 probability theory, which allows the Court to infer the likely time of a spill in the absence of definitive evidence, based on likelihood of it occurring between a known chronology of events.
Finally, it provides interesting commentary on the limitations of CCTV footage and photographic evidence, and confirms the dangers of relying solely on such images or footage where other evidence, for instance witness evidence, can be called to contradict assumptions or inferences drawn from the footage or images alone.
1 Sackville AJA, McColl JA and White JA.
2 (2012) 246 CLR 182; [2012] HCA 5.
3 [2017] NSWCA 202.
4 (2012) 246 CLR 182; [2012] HCA 5.
Judgment Date: 15 August 2018
Citation: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
Jurisdiction: NSW Court of Appeal
Principles
- Service providers such as cleaners have a duty to exercise reasonable care in the course of performing their duties. That duty does not go beyond an obligation to take reasonable precautions to avoid foreseeable risks.
- The service provider’s system and its employees’ performance of that system is required to be reasonable, not perfect.
- The fact that an employee may miss something in the course of his or her duties does not of itself constitute a defect of duty or casual act of negligence, so long as it can be established that the employee was exercising a reasonable level of care in the performance of their duties.
Background
The plaintiff was walking with his daughter in Westfield Shopping Centre, Liverpool, when he slipped and fell on a patch of water in the public area of the Centre, sustaining injury. The plaintiff commenced proceedings in the District Court of New South Wales against the Scentre Shopping Centre Management Ltd, later also joining the cleaners, Atlantic Cleaning and Security Pty Ltd (Atlantic). Ultimately, Atlantic's insurer, Argo Managing Agency Ltd (Argo) was substituted for Atlantic.
The plaintiff settled his claim with Scentre prior to the hearing.
The matter progressed against Argo in the District Court of New South Wales before Maiden DCJ ('the primary judge').
With the aid of CCTV footage, it was established that the plaintiff fell at 10.44.29am. It was also established that two cleaners passed the vicinity of the fall prior to the accident, 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 generally accepted by the primary judge and the parties. The central liability argument against Atlantic was that the second cleaner had engaged in a casual act of negligence in failing to detect the water at the accident site in the minute prior to the plaintiff's fall.
The primary judge ultimately found in favour of the plaintiff, accepting that it was probable the water was present on the floor at the time the second cleaner passed the accident site, and that the second cleaner had failed to exercise reasonable care to prevent the risk of injury materialising by failing to detect the water. In particular, the primary judge found that the second cleaner had failed to look to his left, and had he done so, he ought to have seen the water.
Decision
The New South Wales Court of Appeal1 allowed Argo’s appeal.
The Court jointly found that, consistent with the High Court’s decision of Strong v Woolworths Ltd2 it was open to the primary judge to apply probability theory to find that the water on the floor of the Centre was likely to have been present when the second cleaner passed, as all things being equal it was more likely that the wet patch was created during the eight minutes between the first and second cleaners’ rotations than during the approximately 90 seconds between the second cleaner’s rotation and the accident.
The Court was however split as to the balance of the judgment.
Sackville AJA, who delivered the majority decision with McColl JA agreeing (White JA dissenting), found that the primary judge erred in finding that there was a casual act of negligence on the part of the second cleaner, which caused the plaintiff’s accident. His Honour observed that the duty owed by Atlantic and its employed cleaner was to exercise reasonable care in the course of its duties to identify and remove hazards. There was no guarantee that all hazards would be removed. Specifically, his Honour found that:
- The evidence was inconclusive as to the size of the wet patch. His Honour found the evidence did not establish that the wet patch extended over more than a small area, but did indicate that it would have been difficult to detect due to the design of the floor.
- The terms of the contract between Scentre and Atlantic inform, but were not determinative of, the scope of Atlantic’s duty of care to persons at the Centre. It was noted that the plaintiff had conceded the system of inspection Atlantic had in place was adequate, and his Honour observed that it was impractical to expect a cleaner, no matter how efficient, to closely inspect every square metre of a large area whilst also performing other cleaning duties.
- The primary judge erred in relying on CCTV footage to infer that the second cleaner “was remiss in his duties”, particularly in the absence of specific findings about the credibility of the evidence called by the second cleaner. The second cleaner gave evidence at trial that he did not need to turn his head to look left or right, much like when driving; that he could use the corner of his eyes, and when he noticed something unusual he would pay particular attention to it. His Honour noted that the primary judge had not cast doubt over the veracity of the second cleaner's evidence and in fact complemented the second cleaner for doing his best to be truthful. His Honour found that CCTV footage could be used to establish that a cleaner has been derelict in his or her duty, but something is needed beyond footage taken at a distance and from behind, where the person concerned appears to be discharging his duties in a reasonably methodical fashion.
White JA, dissenting, found that the plaintiff’s evidence was that there was a large quantity of water on the floor, and given Argo did not call evidence to contradict that, it followed that the Court must accept the water was over more than just a small area. Once that was accepted, White JA opined that it must be found that the cleaner, acting reasonably, should have seen and dealt with it.
Why this case is important
This decision builds upon other recent decisions in the NSW Court of Appeal and High Court of Australia which are assisting defendants to defend systems-based negligence claims. In particular, this decision affirms the decision of Woolworths Ltd v McQuillan3 - where it was found that an occupier’s duty of care was limited to that of a reasonable system for inspection and safety, rather than a perfect system – and extends this line of reasoning beyond occupiers and to the actual service providers such as cleaners who provide the systems that occupiers can rely upon.
The decision also affirms the application of the Strong v Woolworths Ltd4 probability theory, which allows the Court to infer the likely time of a spill in the absence of definitive evidence, based on likelihood of it occurring between a known chronology of events.
Finally, it provides interesting commentary on the limitations of CCTV footage and photographic evidence, and confirms the dangers of relying solely on such images or footage where other evidence, for instance witness evidence, can be called to contradict assumptions or inferences drawn from the footage or images alone.
1 Sackville AJA, McColl JA and White JA.
2 (2012) 246 CLR 182; [2012] HCA 5.
3 [2017] NSWCA 202.
4 (2012) 246 CLR 182; [2012] HCA 5.