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. The parties' cleaning contract defined the work required to be performed by the respondent by reference to an annexed specification which had been lost prior to trial and the trial judge was not satisfied by the appellant's evidence that the appellant's claim against the respondent was within the ambit of the indemnity provided for by cl12 of their contract, ie; as earlier as stated, arose from or out of the respondent's negligent performance of the cleaning contract. His Honour said, "I cannot be satisfied on the balance of probabilities that the work being done by the respondents and its omission arose out of the performance of the contract." 2 UNREPORTED JUDGMENTS The appellant submitted that the trial judge should have been satisfied by its evidence (and that might well be correct). At the very least, the appellant's evidence might have shifted an evidential onus to the respondent, although some care is required in defining what the appellant needed to establish. The parties' dispute was complicated by its focus on what work their cleaning contract expressly required the respondent to do and in particular whether the contract expressly required the respondent to do what his Honour held that it was required to do by its common law duty to the plaintiff. That was not the ultimate issue although the appellant's case would have been strengthened by a finding in its favour on the point. The essential foundation of the plaintiff's judgment against the respondent was that the respondent, was responsible for cleaning the material section of the floor at the relevant time. Whether or not it was expressly obliged by the contract to have two cleaners working on the material section of the floor at the relevant time an implied term that it would perform the work without negligence would readily be implied and, indeed, it is perhaps implicit in cl12 itself, and such a term would appear to carry with it an obligation to provide the necessary number of cleaners according to the trial judge's findings. However, in my opinion all that can be put to one side. As stated above, it was integral to the plaintiff's judgment against the respondent that the respondent was responsible for cleaning the material section of the floor at the relevant time. That responsibility cannot have had any source other than the cleaning contract. There is an irresistible conclusion that, as a matter of fact, the respondent was performing its contract with the appellant when it negligently omitted to do what its duty to the plaintiff required irrespective of whether that was also expressly or impliedly required of the respondent by its contract with the appellant. Accordingly, in my opinion the appeal should be allowed with costs. Mason P IJ agree. Meagher JA I agree. Mason P The formal orders are that the appeal is allowed and the parties are directed to file with the Registrar by 4pm tomorrow appropriate dispositive orders and there is liberty to apply. The appeal is allowed an the parties are directed to file with the Registrar by 4pm on 9 October 1998 appropriate dispositive orders and there is liberty to apply. Counsel for the appellant: I G Harrison SC Solicitors for the appellant: McCulloch & Buggy Counsel for the respondent: A Ogborne Solicitors for the respondent: Bruce & Stewart