Slipping shopper sues shopping centre cleaning regime endorsed

Carnemolla by her tutor Carnemolla v Arcadia Funds Management Limited [2020] NSWDC 108

It's a sad fact of life that people slip and fall in shopping centres and then sue. However, it's not inevitable that every slipping shopper will succeed.

Two recent decisions by the NSW District and Supreme Courts have underscored the importance of property managers keeping contemporaneous and accurate maintenance and cleaning records. Such records can make the difference between success and failure in "slip and fall" litigation.

THE INCIDENT

On 29 September 2016, Lisa Carnemolla (the plaintiff) slipped and fell in a corridor leading away from the female toilets at Neeta City Shopping Centre (the shopping centre).

Arcadia Funds Management Ltd (Arcadia) was the property manager of the shopping centre at the time of the incident and had engaged Asset Cleaning Services Pty Ltd (Asset) to undertake cleaning duties at the shopping centre.

After the plaintiff fell, Asset's cleaning staff were called to assist her. The plaintiff informed the cleaners that she had slipped on water on the floor, and an ambulance was called. An ambulance arrived two hours after the incident, and the plaintiff was taken to hospital where she underwent surgery for a displaced patella.

Shortly after the incident, one of Asset's cleaners who had attended upon the plaintiff completed a liability incident report, using Arcadia's standard incident report form. In the incident report, the cleaner recorded that the plaintiff had said to him that she had slipped in the corridor due to a water spillage. However, the cleaner inspected the area where the plaintiff fell himself and recorded that he could not find any spillage which could have contributed to the fall, and he was also unable to identify any skid marks on the floor nearby. The cleaner also noted that the plaintiff was wearing thongs at the time of the incident.

In the incident report, the cleaner described the area of the fall as "clean and dry". CCTV footage revealed that the area where the plaintiff fell was inspected by a cleaner at 12:10pm, only 12 minutes before the plaintiff fell, and there was no water on the floor, or any factors which might have contributed to the fall, at that time.

As part of its contractual obligations with Arcadia, Asset was required to undertake a 15-minute cleaning "loop" of all common areas of the shopping centre, and a 20-minute cleaning "loop" of all amenities.

The NSW District Court Decision [1]

The plaintiff brought proceedings against Arcadia for damages for personal injury. The matter proceeded to trial in April 2020. It was not in dispute that Arcadia owed a duty of care to the plaintiff. Arcadia owed a duty to all visitors to the shopping centre to ensure that the shopping centre was free from any foreseeable risk of harm that was not insignificant. The court found that the risk of water on the floor at the entrance to the toilets was foreseeable, and the harm that could potentially arise was not insignificant.

The key issue at the trial was whether there was, in fact, any water on the floor that caused the plaintiff to fall. Arcadia unequivocally denied that there was any water on the floor and claimed that the plaintiff had contributed to her fall by failing to take proper care for her own safety, to watch where she was walking, and keep a proper lookout.

As to whether there was any water on the floor, the court considered the contemporaneous incident report. In the report, it was recorded that the plaintiff had told the cleaner that she had slipped on a water spillage. However, the cleaner had also reported that there was "no apparent reason" for the incident.

The plaintiff gave oral evidence at the trial concerning the incident. Her ability to recall the incident with any clarity was limited by her various disabilities and medical issues.

Nevertheless, the plaintiff gave evidence that she "felt something under her feet and fell".

She did not testify that water on the floor had caused her to fall, and she did not elaborate any further as to the cause of the incident.

In cross examination, the plaintiff's mother failed to mention the plaintiff slipping on water.

The site of the incident was tiled with terrazzo tiles. The plaintiff called a "slip and fall" expert, Mr Burns, to give evidence as to the state of the tiles at the incident site. Mr Burns testified that four steps could have been taken to prevent injury to the plaintiff, namely installing a floor type with more friction, implementing a safe system of inspection, installing warning signs, and ensuring there was no spillage from the cleaners on the floor. The last three recommendations were considered by the court to be irrelevant to the circumstances of the plaintiff's claim and, so, were rejected. In relation to the recommendation as to replacing the tiles entirely, the court did not accept that recommendation as there was no evidence as to the necessity for, or the cost of, replacing the flooring.

Mr Burns opined that it was "more probable than not that contamination of the floor would occur", but failed to provide any factual evidence to support that opinion.

The court found that that statement was an unproven expression of opinion, and the expert had failed to establish a relationship between the event and Mr Burns' specialist knowledge.

Mr Burns conceded that terrazzo tiles are appropriate flooring for a public space, provided they are not wet.

The court concluded that there was insufficient evidence to establish that there was water on the floor, which had caused the plaintiff to fall.

In the alternative, it was held that, if there was water on the floor, the plaintiff had not discharged the burden of proving that any water on the floor was the cause of her slip and fall.

The plaintiff had claimed a total of $487,010 from Arcadia. However. the court decided in Arcadia's favour and the plaintiff's claim was dismissed.

THE SUPREME COURT APPEAL [2]

On 8 July 2020, the plaintiff appealed to the Supreme Court.

The court again noted it was an essential element of the plaintiff's case that she must prove that the floor was wet and that was what caused her to slip and fall.

The court ruled that the duty on an occupier of a shopping centre is not to ensure that the floor is dry at all times, but to take "reasonable steps" to fulfil its duty to visitors to ensure that the floor is dry and not slippery. The court was satisfied that there could be no criticism as to the cleaning system - comprising 15 and 20 minute cleaning "loops" - implemented by Arcadia.

The court held, on the basis of the inspection of the site of the incident, the contemporaneous completion of the incident report by the cleaner, and the lack of any other compelling or credible evidence of water on the tiles, that the original decision to dismiss the claim ought be upheld.

While it was not disputed that the plaintiff fell, it was concluded that it was not a result of a breach of duty by Arcadia.

The plaintiff's appeal was dismissed with costs.

CONCLUSION

This decision highlights the importance for property managers and their cleaning contractors to ensure they have adequate systems in place to prevent accidents.

Further, in the event an accident does occur and a visitor to the property is injured, it is vitally important to inspect the scene of the incident, photograph it, and create a contemporaneous and detailed incident report.

Whilst shopping centre managers have a duty to maintain the shopping centre in a fit state for use by the public, that duty is not absolute. "Reasonable care" must be taken for the safety of visitors. The 15 to 20 minute cleaning "loops" in this case were held to be sufficient to constitute the exercise of "reasonable care".

Moreover, an accurate contemporaneous record of the incident will make all the difference between winning and losing a "slip and fall" claim. If the cleaner had not recorded that there was no water spillage in the immediate aftermath of the incident, the version of events propounded by the plaintiff and her expert may well have been accepted.

[¹] Carnemolla by her tutor Carnemolla v Arcadia Funds Management Ltd [2020] NSWDC 108.

[²] Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308.