• Kevin Gibbons

Argo Management Agency v. Al Kammessy

[2018] NSWCA 176 (15 August 2018)


Liability of Shopping Centre Cleaner


Contract cleaners (and shopping centre operators) are not guarantors that all risk hazards will be removed before they are encountered by a shopping centre patron.


The obligation is to exercise reasonable care and while a contract cleaner may be in breach of a cleaning agreement by not carrying out circulations as per the time limits in the contract, the contract cleaner may not be liable to a third party solely due to its failure to achieve circulations as per the cleaning contract.


Facts

Al Kammessy slipped on a wet portion of the floor outside Woolworths at Westfield Liverpool.


The wetness was clear liquid.


His evidence was that his clothes, legs and hands were wet as a result of the fall.


While the fall was captured on CCTV, the fall was in the background, not the foreground, limiting the usefulness of the CCTV as evidence of whether the cleaner looked around carefully. The CCTV did not capture the wetness on the floor before or after the fall.


A contract cleaner had done two circulations in the period 9 minutes prior to the accident, neither of which alerted the relevant cleaner to the existence of wetness on the floor.


At trial, Al Kamessy accepted that the first cleaner had acted entirely reasonably in her activities in the vicinity of the location of the fall. One suspects that concession was made because it was more likely that the wetness was not present at that time. The effect of the concession meant that if the wetness was there Al Kammessy did not consider the cleaner was negligent in not noticing it.


Nothing on the CCTV assisted in showing if there was a reason for the wetness.


It was accepted at trial and on appeal that the most reliable inference was that the wetness came into existence between the two circulations by the cleaner, meaning that the wetness was present when the second cleaner walked by approximately 24 seconds prior to the accident.


The Trial Judge concluded (and this was the epicentre of the appeal) that the area of wetness prior to the fall was approximately one metre in one direction (i.e. a large area not able to be missed by a cleaner acting reasonably).


It was that finding which allowed the Trial Judge to find the second cleaner had not acted reasonably in not detecting it.


While the shopping centre operator was sued, it settled the claim against it on terms which were not disclosed.


We assume that the terms were probably modest, having regard to the engagement of the contract cleaner for the purpose of discharging the owner’s responsibility to keep the floor safe for patrons.


Appeal

The appeal Court was unanimous in finding that the Trial Judge erred in concluding that the area of wetness prior to the accident was in the order of one metre in one direction.


The appeal Court was split on the extent of the wetness and whether the omission by the second cleaner to discover it, was a product of negligence.


By process of reasoning based on probabilities the appeal Judges concluded that the wetness was present when the second cleaner went by a short period prior to the accident.


The amount at stake was $476,736, plus costs.


While the trial Judge attached no relevance in his reasoning, to the extent of wetness which Al Kamessy described, the appeal Judge in the minority, considered that that evidence led him to conclude that the wetness must have been sufficiently extensive for a cleaner acting reasonably, to have discovered it.


The majority disagreed.


The majority in the Court of Appeal, considered that the totality of the evidence, including the absence of reaction by patrons, by reference to the CCTV, meant that the patch of wetness, was no more than a very small area.


There was some unchallenged expert evidence that a very small area of wetness, of a substance like water, would be very difficult to detect by a cleaner, specifically charged with the obligation of finding such things.


Had there been some evidence that a careful cleaner may have detected a very small area of clear wetness on a terrazzo floor, the cleaner’s appeal would probably have failed.


There was an express indication by the appeal Judges that a cleaner, and by inference, an owner were not guarantors of pedestrian safety. Their obligation was to act reasonably.


Take Out

Like all cases, they are to be judged based on their own facts, evidence and findings, touching upon whether a shopping centre owner, or cleaner, is vulnerable to liability.


Appeals are also to be considered on their individual merits, having regard to the evidence at trial, the way the case was put at trial and, the judicial findings being reviewed.


However, while the statement that the contract cleaner, and by inference, the centre owner, are not the guarantors of safety risks, it is heartening to see that repeated at the appellate level.


At a forensic level, it does seem that inadequate early attention may have been given to ascertaining, by the claimant, the likely extent of the wetness on which they slipped when that feature was likely to be an important forensic feature at the trial.


It reinforces the appropriateness of not only early investigations, but early investigations which are informed at a forensic level.

7 views0 comments

Recent Posts

See All

Swashplate v Liberty Mutual

FCA (16 January 2020) Loss of cover for Aviation Transport Risk Sometime between May-July 2018 and somewhere between Picayune, Mississippi USA and Queensland 2 helicopters were damaged in transit. Eac

Landpower Australia v Penske Power Systems

[2019] NSWCA 161 Proportionate Liability, Contractual Liability, Assumed liability under contract This case explored for the first time in an appellate Court, the operation of the proportionate liabil