Occupiers of retail commercial premises have a duty to take all measures that are reasonably practicable to eliminate, reduce or warn against risk of injury arising out of the static nature of the premises.
It has long been accepted that the duty to keep premises safe may be delegated by the occupier to a third party.
Whether or not an occupier has discharged its duty of care by delegating to a third party to keep the premises safe was explored in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 19 where the New South Wales Court of Appeal held that the issue can be determined by whether the occupier used reasonable care and skill in:
- The selection of the third party;
- Arranging the terms of engagement of the third party; and
- Monitoring the conduct of the third party to confirm that they are taking appropriate steps.
HWL Ebsworth Lawyers were recently involved in conducting the successful defence on behalf of the occupier of a large retail commercial premises in Stringer v Westfield Shopping Centre Management Co Pty Ltd [2017] SADC 35 and the Appeal before the Full Court of the South Australian Supreme Court in Stringer v Westfield Shopping Centre Management Co Pty Ltd [2017] SAFCSC 138. The case involved a claim for damages for personal injuries against the shopping centre following an incident in which the Plaintiff slipped and fell on some liquid at the Centre, sustaining severe injuries. An on-duty cleaner, employed by the independent cleaning contractor of the occupier, had been changing a bin bag a minute prior to the incident occurring, seemingly depositing some liquid to the floor surface at that time.
Stringer involved a number of interesting issues that are relevant to all occupiers of commercial premises. The issues at first instance and on Appeal included:
- Whether the occupier’s duty of care had been discharged by engaging an independent cleaning contractor;
- Whether the occupier ought be held vicariously liable for the conduct of the cleaner;
- Whether the occupier had breached its duty of care under the relevant Occupational, Health, Safety & Welfare legislation relative to maintaining a safe premises; and
- Whether the delay in delivering the District Court Judgment had any impact upon the findings at first instance.
As to the first issue the Court found that the occupier had discharged its duty in its selection of the independent cleaning contractor and that the occupier’s regular meetings with the cleaning contractor and its spot checks evidenced the proper monitoring of the cleaning system by the occupier. It is also important that the Court commented that ‘An occasional and minor failure to comply [with the terms of the cleaning contract] is not evidence of a systemic failure…Nor does the absence of records on whether the contractual “KPIs” were met prove negligence in monitoring’. The cause of the subject incident was found, by the Court, to be the negligent conduct of the cleaner in depositing the liquid to the floor surface.
As to the second issue, the Court considered the relationship between the occupier and the cleaning contractor and looked to the terms of the Cleaning Services Contract which enabled the occupier to exercise a large degree of control over the cleaners i.e. by requiring them to wear a specific uniform with the occupier’s branding and enabling the occupier to summarily dismiss employees of the cleaning contractors. However the Court found that the arrangement did not enable the occupier to exert the level of control required to classify the relationship as one imposing vicarious liability on the part of the occupier for the acts or omissions of the cleaning contractor. Additionally the Court found that there was no inherent and high risk of harm or any special dependence or vulnerability of the Plaintiff such that the occupier ought be held vicariously liable for the cleaning contractor.
As to the third issue, the Court considered whether or not the occupier breached its duty to the Plaintiff to undertake all measures to ensure, as far as was reasonably practicable, that the premises was safe. The Court found that in light of the cleaner’s negligent act there was nothing the occupier could have done as a matter of “reasonable practicality” to prevent the act of the cleaner in depositing the liquid to the floor surface.
As to the issue of the delay in delivering the judgment at first instance, being a period of two years from the date of the Trial, the Court of Appeal considered the delay “unfortunate” but not resulting in any error of the judgment.
The recent decision in Stringer is a reminder to all occupiers of commercial premises that whilst an occupier’s duty to keep premises safe may be delegated to a third party, discharging that duty requires the exercise of reasonable care and skill, by the occupier, in the selection and monitoring of the cleaning contractor.
This article was written by Richard Smith, Partner and Amanda Salleh, Senior Associate.