The County Court of Victoria has affirmed that the duty of care owed to plaintiffs in personal injury actions is not a guarantee of safety. Even with reasonable care, bad things sometimes happen to good people.
Kennedys acted for the Second Defendant, Consolidated Property Services Pty Ltd (CPS), and was successful in defending the claim.
In July 2019, the plaintiff slipped on some water and fell in Northland Shopping Centre in Melbourne (Northland) and, as a result, suffered injury to her right knee (the incident). The plaintiff, a 61 year old woman at the time of judgment, brought proceedings in negligence against the manager of the shopping centre, Vicinity Centres PM Pty Ltd (Vicinity), and its contracted cleaner, CPS, in relation to the incident.
There was no dispute as to the plaintiff’s claimed injuries, and that the incident had occurred, particularly as it was captured on CCTV. Additionally, it was accepted that the plaintiff had slipped in water.
However, despite the CCTV footage, there was no direct evidence regarding the source of the water spillage, or when the spillage occurred. These issues remained at large during the running of the trial, with the plaintiff alleging that the source of the spillage was a roof leak, and that the defendants’ respective response to the roof leak was inadequate.
Concurrent to the plaintiff’s primary claim, secondary contribution proceedings were on foot between Vicinity and CPS.
Ultimately, His Honour Judge Purcell dismissed the plaintiff’s claim. Judge Purcell’s decision not only confirmed CPS was not liable for the plaintiff’s injury, but also barred Vicinity from pursuing indemnity costs against CPS pursuant to the secondary contribution proceedings.
Judge Purcell undertook a two-fold analysis of the primary claim when determining its merits.
Judge Purcell confirmed that, in circumstances like the present where there is no direct evidence of the source nor time of the spillage, the plaintiff must show circumstances that can lead to a reasonable and definite inference being drawn as to these facts. Given the plaintiff’s case focussed on the source of the spillage being a roof leak caused by rainfall, Judge Purcell considered that the relevant question was whether an appropriate path of inferential reasoning supported a conclusion, on the balance of probabilities, that there was sufficient rain to cause the roof to leak.
On the evidence, including that there were no recorded roof leaks in the incident location prior to or since the incident, Judge Purcell found that to draw a conclusion that there was sufficient rain to cause a roof leak at the incident location at the given time would involve impermissible speculation. Judge Purcell also considered that there were many ways in which a water spillage could occur – for example, a fire sprinkler could leak, a pipe in the roof could leak, a passer-by could have spilled water. Therefore, the circumstances did no more than give rise to conflicting inferences of equal degrees of probability as to the source of the spillage, which was insufficient.
Judge Purcell best captured the essence of the plaintiff’s burden of proof in establishing negligence in his remark, during trial, that “it’s not a perfect world”. Specifically, His Honour noted even if it was possible to draw inferences regarding the roof leak in the plaintiff’s favour, that of itself does not prove negligence. Judge Purcell confirmed that the plaintiff must also establish that the defendants’ conduct was negligent and caused the plaintiff harm.
Judge Purcell considered that there was no evidence that the cleaning was not performed in accordance with the cleaning agreement, nor that the system provided for in the agreement was not a reasonable system for cleaning and inspection of the incident location. To this end, he was satisfied that the cleaners regularly patrolled the incident location, and that the subject cleaner is seen in the area in the CCTV footage at regular intervals cleaning and mopping as required.
Furthermore, His Honour noted the fact that people were walking through the incident location in the several minutes before the incident tends to suggest that any water on the floor was likely present for a short period of time. Therefore, there was nothing that could reasonably have been done to prevent or warn the plaintiff in time to avoid the incident. His Honour found there was nothing to conclude there was a failure to provide adequate cleaning, or that the system of cleaning and inspection was in any way factually related to the happening of the incident.
Indeed, Judge Purcell noted that the CCTV footage showed the subject cleaner to be appropriately and diligently performing his cleaning duties in the area of the incident and that there was nothing to suggest he was distracted or not properly inspecting the floor as he moved through the fashion mall. His Honour’s impression of the cleaner was someone who took his job seriously and performed it in a manner expected of him by the defendants. His Honour considered that any criticism of the cleaner by the allegation that he failed to detect the water spillage was simply not made out on the evidence.
Ultimately, Judge Purcell considered this to be a clear example of the plaintiff proceeding on the supposition that her injury was caused by someone’s fault, when, on the evidence, it was not.
We are of the view that there are significant takeaways for Cleaning Contractors from Judge Purcell’s judgment, including:
- Employees of Cleaning Contractors, who are not strictly on rotation duties, but rather are walking through an area albeit on other cleaning business - can successfully be relied upon, as carrying out ‘an inspection’ at the relevant area, for the purposes of satisfying the current standard of care necessitating 20 minute rotations in common areas in shopping centres (for example, a cleaner wheeling a bin);
- The path of inferential reasoning is not a simple route for the plaintiff in circumstances where there is no evidence of how or when the spillage occurred - a valid inference must be made as distinct from speculation. Cleaning Contractors should feel comforted by this particularly in instances where CCTV footage preserved by Centre Managers is of an insufficient length of time, and might only capture the few minutes leading up to the alleged incident or in the alternative, where the footage is taken from a distance and is grainy or unclear from which one is unable to discern facts relevant to the spillage;
- In circumstances where it appears that the plaintiff’s claim is likely to fail, it is not unreasonable should Cleaning Contractors decide to take a more robust position towards any offers to contribute by Centre Managers, in which the lion’s share is invariably placed at the feet of the Cleaning Contractor. Indeed, the Centre Manager in the instant case was unable to claim indemnity costs against the Contracted Cleaners; and
- Critical to these types of cases, and what is echoed in the instant case is that the duty owed to a plaintiff at common law or via statute is to take reasonable care. This is not a guarantee of safety, no more than is a standard of indifference. As His Honour put it, “Even with reasonable care, bad things sometimes happen to good people”.
This article was co-authored by Anthea Digiaris, Paralegal.