ALLCORP CLEANING SERVICES PTY LTD v FAIRWEATHER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and STEIN JJA 29 June 1998, 29 June 1998 [1998] NSWCA 12 NEGLIGENCE — PERSONAL INJURY — PERSON SLIPS ON THE FLOOR OF FOODCOURT OF SHOPPING MALL — ADEQUACY OF CLEANING SYSTEM Mason P Mrs Fairweather was injured when she slipped on a potato chip and fell in an area in the Ashfield Shopping Mall. It was a busy Saturday lunch time in a section of the mall where there were about eighty fixed tables and about two hundred people using the area. The tables were located in the central area between a number of food outlets. The floor was of a terrazzo type. The occupier of the Mall was Queensland Investment Corporation, the second respondent. However a contract had been let between that occupier and Allcorp Cleaning Services Pty Ltd, the appellant. Under that contract, various cleaning tasks had to be performed in various parts of the shopping mall. The terrazzo and marble floor area in question had to be maintained clean "continuously". The evidence was that an apparently adequate system had been set in place for the cleaning of the particular area. I do not understand the plaintiff to have challenged the system as such in her case at trial. There was a cleaner who was required to attend exclusively to the terrazzo area. The evidence was that had he done so, he would have been covering each part of the area approximately every fifteen minutes. Mr and Mrs Fairweather purchased some food and sat down to eat it at one of the tables. On her evidence she was there for about fifteen to thirty minutes, on her husband's evidence about fifteen minutes, before they got up and moved away. They moved away in a roughly circular line, but before they had left the area where the various tables and chairs were located, Mrs Fairweather slipped and fell. When she was picked up, the portion of potato chip was found on her shoe. The second respondent was the defendant below and at trial admitted liability. Damages of $80,000 were agreed. The appellant had been joined as a third party. It disputed the liability which the defendant had conceded and also contended that if the defendant were liable, it was not appropriate for the entirety of that liability to be passed on to it by way of contribution under the Law Reform (Miscellaneous Provisions) Act 1946. The principal matter in issue at the trial was the question whether the system had broken down on the particular occasion. Neither the defendant nor the third party called the cleaner who was on duty on that occasion. His absence was explained by reason of the fact that he had not been seen for some time, he was no longer employed, and there was information that he had returned to his homeland Thailand. It is not entirely clear whether that explanation was accepted or acceptable but I am prepared to proceed on the basis that it was. It is relevant to observe however that no statement taken from him was put in evidence, if any such statement had in fact been taken. 2 UNREPORTED JUDGMENTS The nub of the appellant's case at trial and on appeal was that it had a good system and the probabilities were that the system would have avoided the loss and negated the alleged negligence. The case advanced by the plaintiff at trial was that the system had broken down, that for some unexplained reason, the cleaner whose duty it was to be present cleaning "continuously" in the terrazzo area was not there. The way the plaintiff sought to prove this was by leading evidence from three persons who were there both before and after the fall who said that they did not see any cleaners. There was evidence that cleaners wore distinctive uniforms. Mr and Mrs Fairweather were sitting opposite each other at one of these fixed tables. The likelihood is that they were sitting facing up and down the long section of the relevant floor, the plan of which appears at p72 of the appeal book. Neither of them saw any cleaner in the period, as I say variously estimated between fifteen and thirty minutes before they got up, nor did they see any cleaner in the time after Mrs Fairweather had fallen. It is obvious that their attention would not have been entirely focused on the presence or absence of a cleaner, particularly after the fall. They conceded that they were talking and eating and that they might not have seen any cleaner even if he were there. The third person whose evidence was relied upon was Mr Wise who was also sitting at one of the tables. His evidence was confused in some respects. He was not there for the same length of time as the plaintiff and her husband, at least on his estimate. He was uncertain as to where he sat but nevertheless he gave evidence that for about five to ten minutes he saw no cleaner. He also conceded that he may not have seen one even if they were there because he was reading the newspaper and otherwise attending to his own affairs. A fourth witness whose evidence cast some light upon this was Mr Bell, security officer employed at the time. One of his tasks was to circle around the area looking for objects that needed to be cleaned up. It was not his role to pass in and out of the tables (that was the cleaner's function) and he had other security functions. But, as I say, one of his tasks was to keep an eye open for matters that needed to be cleaned up. He gave evidence that he arrived at the scene of the incident shortly after the fall and that he did not notice any cleaners at the time. If there had been a cleaner and the system had been working, then there would have been a cleaner somewhere in the area. Again it is suggested that the fact that he did not notice cleaners just means that his attention was focused upon the accident and that is certainly a possible answer to his evidence. The trial judge addressed this critical issue at p90 and p91 of the appeal book. He was aware of the challenge to the evidence of the plaintiff and her witnesses on this issue and aware of the concessions that they had made. Nevertheless he concluded that there was, in the trial judge's words, a clear inference on the evidence that there was no cleaner in this area for a substantial period of time. There was no cleaner there on the evidence for a period of anything up to three-quarters of an hour, that is before and after the accident. Counsel for the appellant submitted that there was no evidence to support this inference. I cannot accept that submission. He also submitted that the inference should not have been drawn, given the concessions and the obvious fact that the four persons whom I have referred to could well have been distracted and not seen a cleaner if he were there. This is a case where the appellant has the task of persuading the Court of Appeal that the trial judge erred in drawing the inference that he did from the primary materials which at the end of the day were not essentially in dispute. I URJ —ALLCORP CLEANING SERVICES PTY LTD v FAIRWEATHER (Mason P) 3 do not consider that the trial judge erred in drawing that inference, given the evidence which I have recounted and the combination of it. It seems to me that it was open and error in drawing the inference cannot be demonstrated. The question then comes whether to prove on the probabilities that the cleaning system broke down sustains the verdict and particularly the finding of negligence and causation inherent in that verdict. In Franklins Ltd v Hunter (CA unreported 1 May 1998) this Court referred with approval to recent discussion by Higgins J in Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 and the Victorian Court of Appeal in Kocis v S E Dickens Pty Ltd (1996) ATR 81-382 of the current state of the law concerning cases of this kind. The Court approved Higgins J's second category of circumstances in which plaintiff's had established liability in slipping cases being a category described (at 28) as: "if it appears that no reasonable system for regular monitoring, inspection and cleaning of the floor was in place having regard to expected hazards it may be inferred that it is probable that if such a system had been in place, then the fall would have been avoided." In my view this second category can be applied to a situation where there was a reasonable system for regular monitoring but where it was established that the system broke down. Such a situation is really one where, for the relevant period of time, there was no reasonable system. Given the fact that this was a crowded shopping centre where food spillages would have been reasonably foreseen; given that the risks inherent in this were addressed by the particular system which Ihave referred to; and given that that system on the probabilities broke down to the extent referred to, then the inference that it was probable that if such a system had been in place the fall would have been avoided was a proper inference to draw. For that reason, the finding of negligence against the defendant and third party at trial was properly made. The defendant had conceded negligence but this concession was not accepted by the third party, the appellant before us. It was clearly open to the appellant to challenge the conclusion of negligence but that challenge fails for the reasons I have indicated. Accordingly there was negligence found causative of loss against the appellant and the second respondent. The trial judge then considered the question of apportionment under the 1946 Act. He concluded that the third party, the appellant before us, was, as between the defendant and the third party, the negligent one; and that the accident was totally the fault of the third party. This conclusion was challenged because it was said that the security officer's task included keeping a lookout for spillages and that there was evidence that he had been in the vicinity a short time before Mrs Fairweather fell. I do not think this is enough to displace the finding which was clearly open to the trial Judge. The security officer's tasks were many, and insofar as they included monitoring the state of cleanliness of the floor, his job was to circulate around the outside perimeter. In the present case, the dirty area was in a central section of the relevant part of the Mall. More importantly the arrangements between the defendant and the third party were clearly such that the primary obligation of maintaining the cleanliness of the terrazzo area fell upon the third party appellant. It was the appellant's cleaner who was to maintain continuous monitoring of the floor area between the tables and it was by reason of his failure to do this that the accident occurred. 4 UNREPORTED JUDGMENTS Earlier today, an order was made that the appeal against the first respondent was dismissed and the costs relating to that appeal have been disposed of. I propose that the appeal against the second respondent also be dismissed and that the appellant pay the second respondent's costs. Priestley JA I agree. I wish to add something arising out of a paragraph in the written submissions of the appellant which referred to the Victorian decision of Kocis v S E Dickens Pty Ltd, 1996 Aust Tort Rep 81-382. That was a case in which Phillips JA of the Court of Appeal in Victoria analysed and discussed in considerable detail the reported decisions dealing with cases of the present kind. His reasons were agreed with generally by Ormiston J. Before mentioning further why it is that I am drawing particular attention to what Phillips JA said, I would state briefly why it is that I agree with what the learned President has said. In doing this, I am adapting something I said in Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 quite a long time ago, to the facts of the present case. My view of the appellant's duty in the present case to persons such as the lady who fell in the food hall is that there should have been in place a functioning cleaning system such as that for which the occupier had contracted with the appellant. On the facts as found by the trial judge, if that cleaning system had been functioning as it should have been, it is in my opinion more probable than not that the chip which caused the fall, would have been seen and moved before the accident. In his reasons in Kocis Phillips JA referred with approval to what Mahoney JA had said in Shoey's case and went on to say he thought the kind of view I have just expressed as I had expressed it in Brady was in essence the same as Mahoney JA's view, and that he agreed with that way of approaching cases such as the present. He referred to Shoey and Brady and other similar cases in support of the view that in cases such as the present, it is not always going to be necessary for a plaintiff to establish how long the material on the floor has been present there before the plaintiff can establish liability against the defendant. In Kocis the Court of Appeal in Victoria also approved of what Higgins J had said in Kelly. The authorities are thus multiplying at the level of Courts of Appeal in state jurisdictions in support of the view that in cases such as the present, findings of fact such as the trial judge here made, properly support the finding of liability against the person whose duty it was to keep the floor clean in accordance with the common law duty owed to persons coming to a place which in the circumstances needs a cleaning system to be operating and to be operating efficiently for the safety of legitimate visitors to that place. I agree with the orders proposed by the President. Stein JA I agree with the President and with the additional remarks of Priestley JA but would merely add this. This is a case where there was an adequate system of cleaning in existence but it was not in operation at the time. The inference drawn by his Honour, the trial judge, that there was no cleaner in the food hall for up to three-quarters of an hour was one which was open to him. If the system had been followed, the probabilities would have been that the chip would have been detected and removed. I agree with the orders proposed by the President. Mason P The orders of the Court will be as indicated in my judgment. URJ —ALLCORP CLEANING SERVICES PTY LTD v FAIRWEATHER (Mason P) 5 Appeal against the first respondent dismissed and the costs relating to that appeal disposed of. The appeal against the second respondent also dismissed and the appellant to pay the second respondent's costs. 5 Counsel for the appellant: T J Morahan Solicitors for the appellant: Henry Davis York Counsel for the first respondent: J Lichtenberger 10 Solicitors for the first respondent: Orchiston Ranzetta Finney Counsel for the second respondent: R Letherbarrow Solicitors for the second respondent: Ferguson Holz