Australia: Shopping Centre Cleaning Case – Is My Cleaning System Reasonable?
Curwoods Case Note

Shopping Centre Cleaning Case – Is My Cleaning System Reasonable? Judgment date: 23 August 2010

Arabi v Glad Cleaning Service Pty Limited (2010) NSWCA 208

New South Wales Court of Appeal¹

In Brief

• 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 question of whether a proper system of cleaning and inspection is in place must be considered in light of s 5B(1)(c) and s 5B(2) of the Civil Liability Act 2002 (the Act) amongst other relevant things. In this regard, the plaintiff carries the burden of proving that a defendant failed to take such precautions against a risk of harm to the plaintiff as in the circumstances a reasonable person in the position of the defendant would have taken.
• An insight as to the nature of evidence required to determine whether there has been a breach of duty of care in a slipping case is provided by the Court of Appeal.
• Whilst it was unnecessary to determine the issue in this case, the Court of Appeal reiterated that even if a plaintiff establishes a breach of duty of care he or she must still prove the breach caused his or her injuries by reference to s 5E of the Act.

Background

On 31 May 2006, Mr Arabi (plaintiff) slipped and fell on a pedestrian ramp at the Bankstown Centro Shopping Centre, sustaining injuries to his right knee. The Centre consisted of three levels, the accident occurring on a ramp between the middle and upper levels. It was the plaintiff's evidence that he was walking up the ramp, talking on his mobile phone when he approached the landing and his right leg slipped and he fell forward landing on his knees.

The plaintiff required two right knee arthroscopies as a result of the injury. The plaintiff indicated that he did not see any liquid on the ramp prior to his fall. However, after the accident he noticed a sticky substance of an orange or brown colour about one metre square on the ramp where he slipped. He stated that the spillage had footprints and wheel marks through it. The plaintiff said that if he had looked where he was about to put his feet he would have seen the substance. The plaintiff did not identify the precise time his accident occurred merely stating he went to the Centre at 12 noon and then went to the Commonwealth Bank before proceeding to the ramp. He did not say how long he was at the bank. The plaintiff reported the accident to the Centre the next day and an Incident Report completed by Mr Mourgarbel, security officer, identified the time of accident as 12 noon.

The records of cleaning inspections of the area showed that a loop of this area had been completed at 11.45am, 12.15pm, 12.35pm, 12.55pm, 1.10pm and 1.30pm. Records also showed that the cleaners performed a total of 26 loops of that area throughout the day.

The plaintiff commenced proceedings in the District Court of New South Wales against both the occupier of the shopping centre (CPT) and the company responsible for the cleaning at the Centre, Glad Cleaning Service Pty Limited (Glad), (jointly the defendants). This matter was heard at first instance by the late Goldring DCJ. His Honour considered that the real issue in terms of breach of duty was whether the system of cleaning was reasonable.

Evidence was given by the cleaner on duty at the time that there were no food shops on the upper level other than one coffee shop, and there were only two food outlets on the middle level, being an ice cream parlour and a popcorn shop. Goldring DCJ accepted the cleaner's evidence that in these areas, continuous cleaning with only short intervals between inspections was not as important as in areas with food outlets. His Honour found that the system of cleaning in operation in that area of cleaning approximately every 15 or 20 minutes was reasonable. As such he found that no breach of duty of care had been demonstrated.

Goldring DCJ indicated that had the plaintiff succeeded, he would have been awarded the sum of $74,184, being $60,000 for loss of future earning capacity, out-of-pocket expenses of $4,184 and future out-of-pocket expenses of $10,000, to be reduced by 35% due to contributory negligence. Despite the two operative procedures his Honour did not believe the plaintiff's non-economic loss exceeded the 15% of a most extreme case threshold required for the awarding of damages under this head of damage.

Court of Appeal Decision

The plaintiff appealed this decision, citing a failure on the part of Goldring DCJ to provide sufficient reasons for his finding that the system of cleaning was reasonable and therefore involved no breach of the duty owed to the plaintiff. The plaintiff submitted that the evidence given by the cleaner suggesting that the cleaning contract required inspections every 10 to 15 minutes, rather than at 20 minute intervals which seemed to be the norm between 11.45am and 1.30pm, and that this should have been taken into consideration, as well as the plaintiff's evidence that the spillage had footmarks and trolley tracks through it and therefore looked as though it had "been there for sometime".

Sackville AJA delivered the unanimous decision of the Court. His Honour stated that while Goldring DCJ identified that the relevant issue was whether the system of cleaning in place was reasonable, the critical issue was whether the plaintiff had proven that the defendants had failed to take such precautions against a risk of harm to the plaintiff as, in the circumstances, a reasonable person in the position of the defendants would have taken, as required under s 5B(1)(c) of the Act.

Sackville AJA also stated that when considering whether the precautions taken by the defendants were reasonable Goldring DCJ was bound to consider the matters raised in s 5B(2) of the Act, which are as follows:

Sackville AJA considered that Goldring DCJ's reasons for his findings were not clear enough to expose his thought processes. However, he said that in this case, as neither party challenged the findings of primary fact, and as the question of whether the defendants breached their duty of care to the plaintiff turned on these findings and uncontentious evidence, the Court of Appeal was in a position to determine the question of breach of duty of care. The situation would be different if the findings depended on issues of credit.

The plaintiff argued that a system of cleaning and inspection entailing 10 minute rotations should have been in place. Sackville AJA noted however that "no evidence was adduced to establish the steps a reasonable person in the position of the [defendants] – that is, occupiers of a large shopping mall – would have taken to prevent the risk of harm from spillages" in relation to the area the subject of this accident. He indicated that, for example, no evidence of industry standards or practices of other shopping malls was provided, nor evidence that demonstrated a general practice of inspections of at least 10 minutes. Sackville AJA also indicated that there was no expert evidence discussing the nature of the risk present at the Centre, and practices that could have been undertaken to minimise the risk, including costs of any such measures relevant to the criteria in s 5B(2) of the Act.

Specifically, his Honour found that the evidence presented did not establish the precise number and location of food outlets nearby and the risks these presented to the ramp where the plaintiff fell. Sackville AJA noted that evidence such as this is not necessary in all cases, and reaffirmed the decision of Kocis v SE Dickens Pty Limited², in which it was said that every slipping case must depend on its own circumstances. He also said that lack of evidence as to general practices in shopping centres may not be relevant where an occupier does not have a system of inspection in place or a plaintiff can establish that a system was in place but was not in operation at the time of the accident: Brady v Girvan Bros Pty Ltd³; Rose v Abbey Orchard Property Investments Pty Ltd⁴.

That was not the case in the matter before the Court however. The defendants in this matter had in place a system that required inspection approximately every 15 to 20 minutes. It was the cleaner's evidence that there could be slight variations to this time period if other maintenance issues or spills arose for example, meaning that the rotation period was slowed down.

Sackville AJA referred to contractual arrangements in place between an occupier and a cleaner, and commented that these arrangements may support an inference that the contractual requirements represent the appropriate precautions that should be taken by a prudent and reasonable occupier to minimise risk of injury to patrons. In saying this, Sackville AJA referred to the decision of Dean v Stockland Property Management Pty Ltd⁵, in which he said that a cleaning contract was relied on to demonstrate a significant departure from the contractual system warranting a finding of negligence against the occupier or cleaner.

It is noted however, that in the case of Dean v Stockland Property Management Pty Ltd⁶, the Court of Appeal remitted the matter to the District Court for retrial and that while the plaintiff certainly argued that the contract should have been read in this way at first instance, no finding was made on this point.

In the present case, the cleaning contract was not tendered, and the evidence of the cleaner concerning rotation periods was used as evidence as to times in which these rotations were carried out. While there was some inconsistency between whether the requirement was between 10 and 15 minutes or 15 and 20 minutes, Sackville AJA stated of the differences that:

"...any variations were relatively minor and certainly did not involve a termination of, or substantial interruption to, the system of inspection. In the absence of evidence that the variations reflected a departure from the standards to be expected of a reasonable person in the position of the respondents, this court cannot infer that an interval of 25 minutes or even 30 minutes involved a breach of duty to the appellant."

His Honour ultimately found that the plaintiff had not satisfied the burden of proving that the defendants had breached the duty of care they owed to the plaintiff as a customer of the shopping centre.

Sackville AJA chose not to determine whether the plaintiff would have proved on the balance of probabilities that the injury was causally linked to a breach of duty. He did however, state that in determining causation a court must have regard to s 5E of the Act. He also stated that in most slipping cases this is done by showing how long the spillage had been on the ground. After making reference to earlier decisions his Honour found that it was possible to draw inferences on causation when there was no system or the system was not in place on the day.

However, he stated this may be harder to do in cases such as this where there was a system of regular inspection. Without deciding the issue, he commented that he thought it was doubtful whether the plaintiff would have discharged the burden in this matter on this issue.

In regards to quantum, the Court of Appeal stated that had the appeal on liability been successful the matter would have been remitted to the District Court for re-assessment on the basis the trial judge's reasons for quantum were insufficient.

Implications

The case reaffirms that when determining questions of breach the court must have reference to s 5B of the Act and that the plaintiff carries the onus.

In a spillage case once breach of duty has been established it is necessary for a plaintiff to prove that the breach caused his or her injuries. This involves proving that a proper system of cleaning would have avoided his or her injuries.

While not referring to the decision in Mercouris v Westfield Shopping Centre Management Co Pty Ltd⁷ (where 10 to 15 minutes inspections in a low risk area was found to be adequate) it is apparent from that case and other appellate authorities in respect of spillage cases that the system of inspection in low risk areas of shopping centres away from food courts is less stringent than in high risk areas. However, it is a question for the court to decide, dependent on the facts in each case, whether the system of cleaning inspections is reasonable in all the circumstances.

The contractual arrangements between an occupier and cleaner, depending on the circumstances, may support an inference that a departure from the contractual system constitutes a breach of duty, subject to the question of causation being satisfied, to warrant a finding of negligence against the occupier or cleaner.

We expect that as a result of this decision, plaintiff lawyers will revise their evidence in preparation of cases. We would also expect to see an increase in risk assessment expert reports served on behalf of plaintiffs in an attempt to demonstrate that high standards of cleaning should be required in shopping centres.

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