P & H Property Service Pty Limited v Branigan; Westfield Shopping Centre Management Co Pty Limited v Branigan  NSWCA195  NSWCA195
Hodgson JA, Bell JA, Rein J
- The central question in a spillage claim is whether there is sufficient evidence to allow a tribunal of fact to conclude on the balance of probabilities that the defendants failure to follow a reasonable system of cleaning caused the plaintiff's damage
- P & H Property Service Pty Limited conducted cleaning services for Westfield Shopping Centre Management Co Pty Limited at a centre in Liverpool.
- On 24 October 2001, the plaintiff, Mr Branigan slipped on a piece of cardboard near the back of Joe's Meats with whom he was employed. The cardboard had been placed over an oil or grease spill on the floor. The plaintiff did not fall to the floor but strained his back as he slipped and sought to steady himself.
- Both Westfield and the cleaner were represented by the same counsel and we presume that an agreement had been made by these parties prior to the hearing.
- The accident occurred around 9.30am. The plaintiff had walked through the area at 7.00am and noticed nothing. It was agreed at the trial and on the appeal that the grease and cardboard, it could be inferred, must have been placed where they were between 7.00am and 9.30am.
- An incident report was completed and there was evidence that there was an inspection by a cleaner's employee 35 minutes before the accident, that is, at about 8.55am. The inspection report, however, did not contain any evidence about what was observed on the inspection or what was done in consequence of anything that may have been observed.
- Neither Westfield nor the cleaners called evidence.
Decision of Judge Goldberg DCJ
- Goldberg DCJ found Westfield and the cleaners liable to the plaintiff and awarded the plaintiff damages in the sum of $588,125. Goldberg DCJ found:
(1) The requirement of daily cleaning was insufficient.
(2) The area was not in fact cleaned daily.
(3) Westfield was on notice of these because of complaints.
- Both the cleaners and Westfield appealed against the trial judge's orders in respect of quantum but only the cleaners challenged the trial judge's decision in respect of liability. At the beginning of the appeal, Westfield sought leave to amend the Westfield notice of appeal to include an appeal on liability. The application to amend was opposed by the plaintiff. The court ultimately determined that leave should be refused.
- The cleaners succeeded on the appeal by a 2 : 1 majority with Hodgson JA dissenting. Westfield remained liable to the plaintiff.
- Rein J formed the view that the judgment against the cleaners should be set aside not on the basis that they had inspected and cleaned the area 35 minutes before the accident but because the cleaners were not contractually bound to do so.
- The contract between Westfield and the cleaners was described by the trial judge as ambiguous. The specifications in the contract required the loading zone to be cleaned once per day and required other areas of the centre to be cleaned every 20 minutes. The area where the Plaintiff was injured was not clearly identified in the cleaning specifications.
- His Honour Rein held:
"P&H had no contractual obligation to clean between 7.00am and 9.30am and its failure to clean prior to 7.00am on the day in question was not causative of the loss to the respondent. Its failure to clean between 7.00am and 9.30am was not a breach of contract. It follows that no breach of contract causally connected with the accident is demonstrated and that P & H is not liable to the plaintiff in respect of his injury."
- Hodgson JA dissented. As regards the contractual obligations of the cleaner in relation to the area where the accident occurred, his Honour held that the cleaners were:
(1) To clean once a day.
(2) To clean spills immediately as required.
(3) To keep docks clean at all times.
- Whilst Hodgson JA agreed with Rein J that the third element did not impose an obligation akin to a guarantee, it did in his opinion, particularly combined with the other elements impose an obligation to conduct reasonable inspections of spills at intervals, thus requiring inspections more than once a day.
- Hodgson JA held that other things being equal, the spill was substantially more likely to have occurred prior to 8.55am than after 8.55am. Hodgson JA infers that on the balance of probabilities, the danger was present at the time of the inspection at 8.55am and that the carrying out of reasonable procedures by the cleaners would have averted the accident.
- This decision by the Court of Appeal emphasises the importance of clarity of wording in cleaning contracts and in cleaning specifications. The main difficulty encountered by the shopping centre manager in this claim was the ambiguity in the cleaning contract as to the definition of the area where the plaintiff sustained his injury and how often, according to the contract it was required to be cleaned.
- This decision also emphasises the importance of the evidence contained within incident reports in slip and fall accidents. The incident report in this matter made no comment about what was observed on inspection or what was done in consequence of anything that may have been observed. The more detail provided in incident reports forms by cleaners, the better equipped the defendant will be in mounting a defence to a claim for personal injuries arising out of a slip and fall.
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