Bailey v Lend Lease Funds Management (t/as Woden Plaza) [2013] ACTSC 56

Facts

At approximately 5.15pm on Monday 4 October 2004, a public holiday, the plaintiff went to the Woden Plaza in the ACT to buy some items at Woolworths. The plaintiff noticed spilt liquid on the floor in the common area near the Woolworths entrance and attempted to avoid the liquid. Unfortunately the plaintiff did not notice the “larger splatter” to her left. She then stepped in it and slipped and fell injuring her left knee and lower back.

Two contracts were relevant in this matter. Firstly, there was a property management contract between Lend Lease Property Management (Australia) Pty Ltd and GPT Management Ltd (now Lend Lease Funds Management Ltd trading as Woden Plaza).

The second contract was between Lend Lease Property and a third party, Spotless, for extensive services including cleaning and presentation of the Plaza.

The defendant was the owner of the Woden Plaza and Lend Lease Property was to manage the plaza for a fee. The owner had almost no active role in the running of the plaza as Lend Lease Property had control over the plaza’s management and day-to-day operations.

The plaintiff brought the claim against the defendant as the owner of the plaza however failed to assert in her statement of claim that the defendant was the occupier as well. However at the beginning of the hearing leave was granted to amend the statement of claim to assert that the defendant and Lend Lease Property were related companies, each owned by Lend Lease Corporation Ltd. It was then pleaded that the defendant as owner owed a duty of care to entrants to ensure that competent independent contractors were engaged.

In October 2008 the defendant joined the third party, Spotless, a company contracted to provide the cleaning services at the plaza.

Due to the expiry of the limitation period Lend Lease Property and the third party were not able to be joined as defendants.

Findings

Master Harper was satisfied Lend Lease Property was the occupier of the Plaza and considered the two contracts were reasonable and satisfactory.

It was stated “it is almost inevitable in a shopping centre that there will be spillages of liquid caused by customers of shops over whom the occupier has little or no control. When such a spillage occurs there will be a period of time before it is detected by staff and made safe. There have been many cases in which fifteen-minute loops for inspection by cleaners have been accepted as satisfactory. Whether such a system is satisfactory is of course a question of fact and not of law, but it is an issue on which the plaintiff bears the onus.”

Master Harper noted the plaintiff called no evidence to suggest the fifteen-minute loops required under the contract were anything other than reasonable and satisfactory.

If Lend Lease Property had been sued as occupier it would have been necessary to consider whether they had used reasonable skill and care in selecting the third party. Given the detailed and thorough contract it was held that Lend Lease Property had successfully delegated its duty of care to protect the plaintiff from spillages to the third party.

It was held there was no evidence of negligence on behalf of the defendant itself and, as such, the claim against the defendant failed. Consequently, the claim against the third party also failed.

If the third party had been added as a Defendant then it would have been necessary for the plaintiff to establish the third party had been negligent. On the evidence at trial the plaintiff would not have succeeded against the third party as no evidence was called to establish any negligence on the part of the third party.

In terms of quantum, the Defendant argued the plaintiff’s back pain was of little concern to the plaintiff as she had attended on her general practitioner eight times in two years and did not mention her low back problems. Master Harper however was satisfied the reason for the plaintiff not mentioning her back pain to her general practitioner was that the plaintiff took the view that there was nothing her general practitioner could do for her.

Master Harper preferred the plaintiff’s medical evidence over the defendant’s medical evidence. He considered the defendant’s evidence, that the fall caused the plaintiff to suffer from back pain for only three to six months and after this point it was caused solely by the pre-existing asymptomatic degenerative condition, to be unsustainable. Whereas the plaintiff’s medical evidence indicated the plaintiff had sustained degenerative changes at the L4-5 level as a result of her fall and was likely to remain the subject of persistent low back pain. The plaintiff suffered a permanent loss of the efficient use of her back and was permanently limited with heavy physical activity, particularly, prolonged or repetitive forward bending and heavy lifting. It was considered the plaintiff may require surgery to the lumbar spine in the future.

If the plaintiff had been successful an award of $75,000.00 for general damages, $4,000.00 for past and future medical expenses, $10,000.00 for past and future care, $2,500.00 for past economic loss and $5,000.00 for future economic loss (which was not pressed by the plaintiff) plus interest for a total amount of $104,000.00.

Judgment was for the defendant with costs and judgment for the third party with costs.

Implications

As with many other cases, fifteen minute rotations were held to be a reasonable rotation time for cleaning of the plaza.

Further, a shopping centre’s duty of care can be fully delegated to another company, usually the occupier, if it can be shown the occupier has full control over the management, administration and operation of the centre. As such, plaintiffs must ensure they bring the proceedings against both the owner and occupier.