Hindsight is not always a wonderful thing

Key Points 
  • The recent decision by the Court of Appeal in Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 serves as a reminder that the duty of care owed by a contract cleaner in a shopping centre is not an expectation of “perfection”.
  • The Court reaffirmed that the duty of care owed by a cleaner is to exercise reasonable care to detect and remove potential hazards, not to guarantee that all hazards will be removed.
  • The Court stressed that caution must be taken when seeking to rely on photographic evidence and unclear CCTV footage to determine whether reasonable care has been taken.
Background
On 28 December 2013 at 10:44:29am, Mr Al Kammessy slipped and fell on a wet area (the Incident) at Westfield Shopping Centre, Liverpool (the Centre). He commenced proceedings against the Centre (which were resolved by consent prior to trial) and Atlantic Cleaning and Security Pty Ltd (Atlantic), the cleaning contractor. Atlantic went into liquidation so its insurer, Argo Managing Agency Ltd (Argo), was substituted as the defendant.
 
Mr Al Kammessy’s evidence was that he had avoided a few spots of water prior to reaching the Incident site, but did not see any water on the floor in the area where he fell. The Incident was captured on CCTV footage which showed that at 10:35am, Atlantic’s first cleaner, Ms Chaemkhuthod, inspected the area and found no evidence of a spillage. At 10:43am, a second cleaner, Mr Nguyen passed the area. Mr Nguyen gave evidence that he had inspected the area and had not detected any spillage.
NSW District Court
While the primary Judge found that Atlantic had an adequate system of cleaning in place at the Centre, His Honour also found Mr Nguyen had engaged in a “causal act of negligence” and had been “remiss in his duties”. Relying on the CCTV footage, it was found that Mr Nguyen failed to look to his left whilst conducting his inspection, resulting in his failure to identify the wet area.  The primary Judge found that the spillage extended for at least a metre in one direction and therefore “any person… whose duty was to look to the ground should have observed that fluid”. His Honour concluded that the spillage caused Mr Al Kammessy to slip and therefore the negligence of Mr Nguyen caused Mr Al Kammessy’s injuries.
NSW Court of Appeal
Argo appealed the District Court’s decision. The issue on appeal was whether the primary Judge erred in finding that Mr Nguyen should have detected and cleaned the spillage had he acted with reasonable care.  
 
The Court of Appeal overturned the decision of the District Court, holding that:
 
  1. The primary Judge erred in finding that Mr Nguyen’s “casual act of negligence” was responsible for Mr Al Kammessy’s fall and injuries. The Court found that the duty owed by Atlantic and Mr Nguyen to Mr Al Kammessy and other patrons was to exercise reasonable care to identify and remove potential hazards. It was not to guarantee that all hazards would be removed.
  2. Further, it was not appropriate to use the benefit of hindsight to conclude that by reason of Mr Nguyen’s failure to detect a particular hazard that he and Atlantic breached the duty of care they owed to Mr Al Kammessy.
  3. In the absence of an adverse finding as to Mr Nguyen’s credibility, it was not open to the primary Judge to infer from the CCTV footage, which was unclear, that Mr Nguyen was negligent by failing to move his head left or right to identify hazards, or that he did not conduct the inspection with reasonable care and diligence.
  4. The evidence did not establish that the wet area extended over more than a very small area and there was evidence that the wet area was difficult to detect due to the design of the floor. Notably, the Court held that: “As a practical matter, no cleaner, no matter how efficient, could be expected to inspect closely every square metre of a large area, especially taking into account (the) responsibility for performing other duties such as removing rubbish and attending to clean-ups.”
  5. The Appeal was allowed. The orders made by the primary Judge were set aside and Mr Al Kammessy was ordered to pay Argo’s costs of the appeal.
Take Home Message for shopping centres, contract cleaners and their insurers: The duty of a contract cleaner is to exercise reasonable care to detect and remove potential hazards, not to guarantee that all hazards will be removed.

Take Home Message generally: it is not appropriate to use the benefit of hindsight to conclude that by reason of a failure to detect a particular hazard, a breach of a duty of care is established.

Post by Ashleigh Gambera and Emma Loong 

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