WESTFIELD SHOPPING MANAGEMENT PTY LTD v MASTERCARE PROPERTY SERVICES PTY LTD [1998] NSWCA 261

WESTFIELD SHOPPING MANAGEMENT PTY LTD v MASTERCARE PROPERTY SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and FITZGERALD AJA 8 October 1998, 8 October 1998

[1998] NSWCA 261

PERSONAL injury — apportionment between joint tortfeasors who are also contractors — ambit of indemnity clause.

Fitzgerald AJA The parties to this appeal were both held liable in the District Court to a woman ("the plaintiff') who slipped on liquid on the floor of a pedestrian concourse at the Westfield Shopping Town at Liverpool, fell, and was injured.

The appellant was the owner of the shopping complex and the respondent had the contract to provide cleaning services in the material area at the relevant time.

The sole question for determination on this appeal is whether the respondent is obliged to indemnify the appellant under cl12 of their written cleaning contract which was dated 24 June 1994. That in turn depends upon whether the appellant's liability to the plaintiff was suffered or incurred in connection with personal injury to the plaintiff which arose "from or out of" the respondent's negligent "performance of" the cleaning contract.

The trial judge found in favour of the respondent on that issue. In dealing with the plaintiff's claim the trial judge held that it was unnecessary for the floor to be under supervision at every moment of time but that a proper system required an inspection of the premises by way of monitoring the floor at intervals of not more than 15 minutes.

His Honour also found that for most of the time two cleaners employed by the respondent were patrolling the material section of floor but that only one was on duty in the period immediately preceding the incident in which the plaintiff slipped and fell.

The respondent was held liable because it knew or ought to have know that the second cleaner on the material section of the floor did not operate in the relevant period and should have supervised her to ensure that there were two cleaners operating on that section of the floor during that time or arranged for additional cleaning staff to come on to ensure that there were then two cleaners working in the material area. Had that occurred his Honour considered that the spilled liquid would have been removed prior to the plaintiff slipping and falling.