Suitable flooring and an adequate cleaning system, what else can an occupier do?

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Last updated: 22 Jun, 2021
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Originally Published by Peter Ford and Demi McGowan on Tuesday, December 1, 2020 9:35:49 AM


In the recent case of Carnemolla v Arcadia Funds Management [2020] NSWCA 308, the NSW Court of Appeal considered the duty of a shopping centre manager to maintain a dry floor surface. 

 

Author: Demi McGowan

Judgment date: 27 November 2020

Citation: Carnemolla v Arcadia Funds Management [2020] NSWCA 308

Jurisdiction: NSW Court of Appeal

 

Principles

  • An occupier of commercial premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to a lawful entrant who is using reasonable care for his or her own safety.

  • The duty of an occupier of a commercial premises is to take reasonable steps to ensure that the floor surface is dry and not slippery which necessitates an adequate system for identifying and cleaning up of spillages.

  • The plaintiff bears the onus of proving that a floor surface such as terrazzo is unsuitable and should be replaced. This requires an assessment of s 5C(a) of the Civil Liability Act 2002 (CLA).

Background

The plaintiff claimed damages for injuries sustained when she slipped and fell on terrazzo tiles outside a public bathroom at Neeta City Shopping Centre, Fairfield on 29 September 2016. The plaintiff, by her mother as tutor, commenced proceedings in the District Court of NSW against Arcadia Funds Management Ltd (the defendant) as the manager and occupier of the Shopping Centre. At the time of the plaintiff's accident, the defendant engaged Asset Cleaning Services Pty Ltd (Asset) to provide cleaning services. Asset was not a party to the proceedings.The primary judge found no liability on the part of the defendant and concluded that the plaintiff did not fall on water, or alternatively, did not discharge her burden to establish that she did. The plaintiff's claim was dismissed with costs reserved.The plaintiff appealed the primary judge's findings on liability and the refusal of the primary judge to consider future attendant care services. The plaintiff argued that she experienced difficulties in giving evidence due to her intellectual disability and psychological impairment.

Decision

The Court of Appeal upheld the primary judge's decision and found that the primary judge was entitled to reject the plaintiff's claim that there was water on the floor and in the alternative, if there was water, it was not a result of a breach on the part of the defendant.

In dismissing the Appeal, the Court reasoned that in the absence of direct evidence from the plaintiff or her mother that the plaintiff slipped on water and that a contemporaneous incident report made no reference to water being present following an inspection within two minutes of the plaintiff's accident, the primary judge was justified in concluding that there was insufficient evidence of the cause of the plaintiff's accident. The Court also considered this in light of the plaintiff's evidence of the mechanism of her fall being inconsistent with a slip and that there were no previous incidents in the area.

The Court clarified that the duty of the defendant as occupier was to take reasonable steps to ensure that the floor was dry and not slippery which necessitated a system for identifying and cleaning up of spills. There was no criticism of the cleaning system by the plaintiff and further it was admitted to be adequate. In this respect, the Court gave particular regard to a Notice to Admit issued by the defendant prior to the trial seeking admissions in respect of the adequacy of the cleaning system and the timing of the plaintiff's fall in respect of the last inspection.

The plaintiff's liability expert, Mr Ian Burn agreed that the terrazzo floor surface on which the plaintiff slipped was appropriate if the surface was kept dry and was universally used in shopping centres in NSW. Should the plaintiff have attempted to advance an argument that the terrazzo flooring was not suitable in a common area, the Court concluded that the evidence of the costs and burden of replacing the terrazzo floor would be required, of which there was none.

Why this case is important

  • This case reaffirms that when determining questions of breach, the Court must have reference to s 5B of the CLA and the plaintiff carries the onus.

  • We are reminded what is required by an occupier of a shopping centre is not a duty to keep the floor dry at all times but rather, to take reasonable steps to minimise the risk of harm by ensuring an adequate cleaning system is in place. The frequency of inspections required will depend on the inherent likelihood of spillages to occur.

  • If an argument of the suitability of the floor is advanced, the plaintiff bears the onus of providing evidence of the burden of taking these precautions in line with the decision of Mercouris v Westfield Shopping Centre Management Co Pty Ltd (2000) NSWCA 79.