Revisiting delegation of duties and vicarious liability by occupiers
Appeal against decision that occupier not vicariously liable for contractor – Confirmation of what is required to discharge a commercial occupier’s duties to third parties
Stringer & Or v Westfield Shopping Centre Management Co (SA) Pty Ltd  SASCFC 138
On 26 October 2017, the Full Court of the Supreme Court of South Australia handed down a decision which relevantly dealt with the circumstances in which a commercial occupier will be considered to have discharged its duty by engaging service providers, such as contract cleaners.
In so doing, the Full Court reaffirmed many of the principles as to determining vicarious liability and delegation of authority, as set out in the High Court decisions of Hollis v Vabu and Leichhardt Municipal Council v Montgomery. It also restates the crucial principles as to determining whether a duty of care has been properly discharged by an occupier.
Mrs Stringer suffered personal injuries after slipping on a spillage as she was shopping at West Lakes Westfield (the Centre), which were owned and managed by Westfield Shopping Centre Management Co (SA) Pty Ltd (Westfield).
Westfield had engaged Reflections Cleaning Company (Reflections) to clean the Centre.
Mrs Stringer sued Westfield for personal injury.
After a period of almost two years between the hearing and the judgment, the trial judge found that:
- a cleaner employed by Reflections had spilled liquid shortly before the incident and had negligently failed to clean the floor or remove the liquid;
- Westfield had properly discharged its duty as occupier of the Centre by engaging Reflections to clean the Centre; and
- as there was no agency relationship, Westfield was also not vicariously liable for the negligent conduct of Reflections or its employees.
An appeal was pursued on various grounds, including that the trial judge had erred by:
- finding that Westfield had properly discharged its duty;
- finding that Westfield was not vicariously liable for Reflections’ negligence; and
- failing to take into account the relevant elements in finding that Westfield did not breach its statutory duties under the Occupational Health and Safety and Welfare Act 1986 (SA).
In dismissing the appeal, the Court affirmed its earlier decision in Ragnelli v David Jones (Adelaide) Pty Ltd that an occupier owes visiting members of the public “a duty to take reasonable care of their safety, and in particular to keep its premises safe”.
The Court found that Westfield had discharged its duty of care by exercising reasonable care in the selection, engagement and monitoring of Reflections as the cleaner of the Centre, including by meeting regularly with Reflections and conducting spot checks of its performance.
Further, it was held that, even if Westfield had not engaged in sufficient levels of contract management, it would still incur no liability for the injuries of Stringer unless its own negligent contract management had materially contributed to the Incident.
The Court also held that Westfield was not vicariously liable for the acts or omissions of Reflections as there was no agency relationship between the two parties.
Although Westfield had set minimum standards for Reflections under the contract, it was still able to establish its own procedure for meeting and maintaining those minimum standards, regardless of the contractor’s employees being contractually obliged to follow the directions of Westfield.
The Court also affirmed its earlier decision of McVicar v S & J White Pty Ltd (t/a Arab Steed Hotel) that an occupier is only required to ensure that a workplace is maintained in a safe condition so far as is reasonably practical for the purposes of section 23 of the Occupational Health and Safety and Welfare Act.
Here, the Court agreed with the trial judge that the liquid spill occurred very shortly before the Incident. In the circumstances, there was nothing Westfield could have done as a matter of reasonable practicability that could have prevented the cleaner’s carelessness, or rectified the results of that carelessness.
The Court reaffirmed the principle that, in order to discharge its duty of care to a third party, an occupier must ensure that any parties to whom they have delegated responsibility have been selected with requisite care and skill.
Similarly, care should be taken over the terms of the engagement of the third party so as to ensure that no relationship is created which can give rise to vicarious liability on the occupier’s part.
Whilst the decision in Stringer did not break new ground, it is a re-assuring reaffirmation that, with proper foresight, commercial occupiers can protect themselves from liability.
Date: 30 October 2017