On 28 December 2013, Mr Gassan Al Kammessy was walking with his young daughter in Westfield Shopping Centre, Liverpool. He was injured when he slipped and fell on a wet patch on the floor in a public area of the Centre. The accident was captured on CCTV footage, and occurred at 10:44 am.
Nine minutes before Mr Kammessy fell, at 10:35 am a cleaner employed by Atlantic Cleaning and Security Pty Ltd, the cleaning contractor, inspected the area and there was no wet patch on the floor. A second cleaner passed by at 10:43 am and it is alleged did not notice the wet patch on the floor.
Initial proceedings
Mr Al Kammessy commenced proceedings in the District Court of New South Wales against the occupier of the centre as well as Atlantic Cleaning and Security Pty Ltd, in negligence and claimed damages.
His Honour Maiden SC DCJ found that the second cleaner did not look to his left to the area where Mr Al Kammessy fell, which amounted to a casual act of negligence, that the wet patch caused Mr Al Kammessy to slip and fall, and that the second cleaner’s negligence caused Mr Al Kammessy’s injuries.
His Honour found in favour of Mr Al Kammessy and awarded damages in the total sum of $476,000.
On appeal
The cleaning contractor appealed. The main issue on the appeal was whether the primary Judge erred in finding that the second cleaner, had he acted with reasonable care, should have detected the wet patch and cleaned the area before Mr Al Kammessy reached it.
On the basis of the finding that the wet patch was present at 10.45 am, the cleaner failed to detect the hazard that led to Mr Al Kammessy’s fall. However, the court noted that the duty owed by the cleaner to Mr Kammessy and other patrons was to exercise reasonable care to identify and remove potential hazards to their safety. It was not to guarantee that all hazards would be removed. And it is not permissible to conclude with the benefit of hindsight that by reason of the cleaner’s failure to detect a particular hazard that he and the occupier breached the duty of care they owed to Mr Al Kammessy. [129]
The court found that the primary Judge erred in finding that the cleaner’s “casual act of negligence” was responsible for Mr Al Kammessy’s fall and for the injuries he sustained.
Accordingly, the court upheld the appeal: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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