Written by Peter CarterFebruary 24, 2019
What are the hazards on shopping mall floors that cleaners are expected to regularly detect and remove to keep customers safe?
And how often should they be searched for and removed?
Consider the case of Gassan Al Kammessy, who slipped and fell on what was agreed to be a pool of water that spilled onto the terrazzo floor of a public area in the Westfield Liverpool (Sydney) shopping complex.
Gassan -wearing thongs and carrying two shopping bags – was walking with his young daughter in the centre just a few days after Christmas in 2013 when a slip on the unseen hazard sent him falling heavily.
He didn’t make a note of the dimensions of the wet surface but there had been enough of the liquid to get his shorts, T-shirt and legs wet as a result.
The fall caused a serious back injury for which he decided to sue the centre manager and the cleaning contractor.
The proceedings against the centre manager were resolved in August 2016.
The case against the cleaning contractor that came before the NSW Supreme Court alleged its employee had been at the spot where the accident occurred just 90 seconds earlier but had failed to detect the spill.
The surveillance system in place called for cleaning rotations in the shopping mall public areas every 20 minutes.
In aid of the system, the contractor’s staff carried a GPS linked wand that allowed supervisors to keep track of the precise location of cleaners in the centre and the frequency and times of attendances at particular locations on the shopping centre floor.
Not surprisingly, the system was found by all four judges who were to consider the facts of the case, to be adequate.
A review of the particular incident revealed that at 10:35 am a supervisor had inspected the location and not detected any spill. At about 10:43 am a staff cleaner rotated through the same location.
CCTV footage recorded the precise time that Al Kammessy slipped and fell at 10:44:29 am, ie 90 seconds after the cleaner’s wand reported him adjacent to the very same spot.
The spill couldn’t be detected in the video, neither could the water itself.
The court concluded, using “probability theory” – that the water had spilled in the 8 minute period between the supervisor’s departure and the cleaner’s arrival – because it was much less likely that the spill had occurred in the subsequent 90 seconds.
It was a natural consequence of that determination, ruled Judge Peter Maiden, that the staff cleaner had missed cleaning it up at 10:43 am.
He awarded Gassan $477k to be paid by the contractor’s insurer.
The insurer appealed.
What was in dispute was extent of the pool of water and whether the cleaner ought reasonably have detected it.
Appeal judge Justice Ronald Sackville expressed misgivings about reliance on distant CCTV footage where no expert evidence was called to assist in its interpretation. Because of “parallax effect”, he reasoned, it was difficult to understand the precise location of the fall. Neither did the vision make it clear precisely how close the cleaners came to the accident site.
Nevertheless he was prepared to accept the conclusions of the trial judge that the water had been present when the cleaner was in close proximity just 90 seconds before the fall and that Gassan had slipped on it.
Gassan’s case came undone for other reasons.
The trial judge’s reasoning – according to Judge Sackville – in arriving at a conclusion that the water spill was 1 m², was “disjointed”.
None of the 16 other patrons who traversed the vicinity of the spill – except perhaps one who looked like she performed a sidestep – appeared to have detected any potential floor hazard.
Would then the hazard have been noticeable on reasonable inspection?
Judge Sackville with whom Justice Ruth McColl agreed, noted in this context that the legal duty of the cleaning company to patrons was not absolute.
Required only to exercise reasonable care, the pair reasoned that the failure to detect the ponded water moments before Gassan slipped, was not of itself sufficient to prove negligence.
The pool of water might have been difficult to see, for example because of the nature of the terrazzo floor itself and in the absence of evidence that a reasonable diligent cleaner should have detected it, they were not prepared to hold that the cleaner’s miss was negligent.
Justice Richard White on the other hand thought the cleaning contractor had the evidentiary deficit. It had in his view, failed – in the face of Gassan’s evidence that the puddle had been big enough to wet the plaintiff’s shorts, T-shirt and legs – to establish that the spill was undetectable despite reasonable surveillance.
In his view, the cleaner should have looked round the floor, seen the water and dealt with it. On that basis, he ruled in dissent that the defendant was responsible for Gassan’s injury.
Of note in this case, are the fortuitous circumstances which allowed Gassan to even contend fault on the cleaners’ part where his slip occurred just 10 minutes after the first of the pair came onto the scene at 10:35am. Ordinarily such claim would have been defeated by the 20 minute inspection rotation, which is customarily considered to be reasonable.
It was only that the second cleaner “happened to re-enter the corridor and pass near the accident site at about 10.43 that provided a basis for the respondent’s claim,” remarked Judge Sackville.
“Such are the vagaries of the law governing claims for personal injury damages based on negligence,” he wrote.
Argo Managing Agency Ltd v Al Kammessy  NSWCA 176, McColl JA, White JA and Sackville AJA, 15/08/2018 Read case