Australia: Owners and tenants - heading for a fall?
Landlord and Tenant alert

Victorian WorkCover Authority v Jones Lang LaSalle (Vic) Pty Limited [2012] VSC 412

Building managers aren't the only ones responsible for ensuring that building foyers are safe for entrants. A Victorian Supreme Court decision earlier this month highlights that the responsibility is shared with tenants ... but don't panic.

Michelle Williams arrived early for work one morning in October 2002. She entered the Collins Street building where she worked on the third floor, passing a cleaner who was hosing down the hard surfaces outside. Although it was only 7.30am, the sun had risen two hours earlier and Michelle noticed there were at least 15 people in the ground floor foyer.

What she and they failed to notice, however, were the drops of water leading from the building entrance and across the foyer to the cleaner's utility room near the lifts. That was unfortunate because, when Michelle slipped on one of those small puddles, she injured her spine so badly that it entitled her to workers' compensation payments of more than half a million dollars from the Victorian WorkCover Authority (VWA).

In the Victorian Supreme Court, the VWA alleged that the cleaners had been negligent. The building manager, Jones Lang LaSalle (JLL) agreed. The VWA also alleged that JLL was negligent, not because it failed to detect the spilled water that morning but because, according to the VWA, it should have maintained regular supervision of its cleaners. JLL denied this and the Court agreed; the lack of any prior problems with the cleaners justified JLL not supervising them more closely and, in any event, there was no evidence that greater supervision would have avoided the incident.

JLL also alleged that VWA's claim against it should fail for a more novel reason. JLL asserted that VWA should not have compensated Michelle in the first place because she was travelling to work at the time. Victorian workers' compensation legislation disallows journey claims.

The Court rejected this argument. It found that Michelle was indeed injured in the course of her employment because:

• she was injured while using a permitted, even expected, means of gaining access to her work area;
• the reason for her presence in the foyer was her employment; and
• she was proceeding directly to her work area at the time of her accident.

The injury therefore occurred in the course of Michelle's employment and the VWA was right to have made compensation payments to her. That, however, did not change the Court's finding that JLL had not been negligent.

Impact

The day after judgment was delivered, The Australian Financial Review warned its readers: ¹

"... tenants could be caught up in claims after accidents in common areas."

That may be true but in our view this judgment is no cause for panic. There are good reasons to remain calm.

Firstly, building managers will welcome the decision because it confirms that they can fulfil their duty of care without the need for excessive supervision. The Court also rejected the submission that cleaners should only use water to clean premises outside normal working hours.

Secondly, even in States where journey claims are not compensable under workers' compensation, workers may still be entitled to compensation payments if they make it nine-tenths of the way to work.

Thirdly, merely because a person is injured in the course of their employment does not mean that the employer (the tenant in this case) is responsible for the harm or that they are in a position to prevent it. The Court emphasised that this case turned on its own facts but it relied on earlier judicial authorities in finding that: ²

The ownership or control of the spot where the accident occurred was ... immaterial."

Tenants in New South Wales and Queensland will be aware that recently amended work health and safety legislation requires them to: ³

"... ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person."

Although Victoria has not adopted the national law, the existing law there imposes an equivalent obligation. ⁴

This recent decision is consistent with, but does not extend, that duty. Tenants remain responsible for the safety of workers as they enter and leave the workplace. However, it is not necessary that a tenant be in breach of that duty in order for a worker to become entitled to workers' compensation payments.

Nevertheless, building managers and tenants alike should respond promptly to any report of a slip hazard in their building foyer. Unfortunately for Michelle Williams on that fateful morning, there was no such report.

Footnotes

¹ 'Tenant's safety warning', The Australian Financial Review, 13 September 2012, page 41.
² At [74].
³ Section 20 Work Health and Safety Act 2011 (both States).
⁴ Section 26 Occupational Health and Safety Act 2004 (VIC).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.