The Court of Appeal overturns the Victorian Supreme Court’s decision in Victorian WorkCover Authority v Spotless Facility Services Pty Ltd [2024] VSC 237, finding the VWA had not established that the absence of a system of periodic inspection was causative of the worker’s loss and damage.
In issue
- The case involved an appeal from a decision of the Victorian Supreme Court. At trial, the applicant, Spotless Facility Services Pty Ltd, the contract cleaner, was found liable to the respondent, the Victorian WorkCover Authority, for the worker’s injuries. The trial judge determined Factor X to be 60%. The applicant appealed both the finding of liability and the apportionment of Factor X.
The background
The injured worker was employed as the property manager of Geelong Grammar School (GGS). The worker suffered a significant injury to his cervical spine when he slipped on soup in the school’s dining hall during meal service.
The applicant was engaged by GGS pursuant to two contracts, a contract to provide catering services and a contract to provide cleaning services at the school, including in the dining hall. Each contract contained a ‘Statement of Service Requirements’ which set out GGS’ service requirements. Minimum standards were specified for the dining hall, which required a 'Floors swept and spot mopped Machine buff' and 'Passage swept and mopped' daily. The cleaning contract contained a general service requirement that the applicant was 'responsible to ensure: Cleanliness throughout the site as specified… Continuous spot cleaning and minor maintenance as required'. There was no other specific reference to cleaning of or inspections of the floor of the dining hall during meal service.
The worker issued proceedings against the applicant and GGS in respect of his injuries. The worker’s common law proceeding resolved prior to trial.
The respondent claimed from the applicant indemnity pursuant to section 369(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
At trial, the parties agreed that the amount of compensation paid for the purpose of section 369(3)(a) was $809,509.62. They also agreed that Factor A was $2 million, Factor B was not relevant, and Factor C (being the amount the applicant had paid to resolve the worker’s claim) was $150,000.
The only question for the trial judge was whether the applicant had a legal liability to pay damages pursuant to the Act, and if so, what Factor X was.
The decision at trial
The trial judge gave judgment in favour of the respondent on the basis that the negligence of the applicant was a cause of the worker’s injury, loss and damage. Factor X was found to be 60%. The trial judge ordered that the applicant pay $839,840.16 in respect of compensation paid to date and provide an indemnity for a further $270,159.84. Costs and interest were also ordered in favour of the respondent.
With respect to the scope of the duty found to be owed by the applicant to the worker, the trial judge held that the contractual requirement to spot clean ‘as required’ 'embrace[d] an element of inspection by [the applicant]'. The trial judge further commented that a reasonable inspection regime 'would necessarily involve movement to observe all areas and so not involve continuous observation'.
With respect to causation, the trial judge did not make any specific finding about the time the soup had been present on the floor but found the absence of any systematic inspection for 'more than half the entire period of lunch service' can 'readily demonstrate a conclusion that [the applicant’s] negligence is a probable cause of the worker’s injury'.
The Court of Appeal’s decision
The applicant appealed on the basis the trial judge had erred on five grounds, covering the issues of breach, causation and the apportionment of Factor X.
The Court of Appeal allowed the appeal in respect of one ground of appeal only, being that the trial judge had erred in finding that the breach of duty by the applicant was a cause of the worker’s injury. The Court of Appeal set aside the trial judge’s orders and ordered that there be judgment for the applicant.
With respect to causation, the Court of Appeal held that the authorities required the respondent to establish approximately when, as a matter of probability based on the evidence, the spillage of soup had occurred.
The trial judge had referred to and relied on the decisions of Kocis v SE Dickens Pty Ltd1 and Strong v Woolworths Ltd2 when accepting that the respondent had satisfied her in establishing, on the balance of probabilities, that the applicant’s failure to have a reasonable system of inspection in place was a cause of the worker’s loss and damage.
The Court of Appeal, however, rejected the trial judges’ reasoning, finding that on the evidence, there was a significantly higher probability of the soup being spilt between 12:45 pm (when the Dining Hall began to become busy and crowded with students) and 1:00 pm when the incident occurred, than during the hour and a quarter prior. The Court of Appeal distinguished the present case from the facts in Strong v Woolworths Ltd where the High Court had found the probability of the chip being dropped was uniform over a four and a half hour period.
On the basis of this finding, the Court of Appeal held that the 'insurmountable difficulty' for the respondent’s case was that the evidence did not show, on the balance of probabilities, that a system of roving inspections would have detected and removed the spill prior to the incident occurring.
Implications for you
The Court of Appeal’s decision is essentially an application of the applicable test for causation to the evidence led at trial – and a reminder that the burden of proving the elements of causation rests with the plaintiff.
What is perhaps more notable for both occupiers and contract cleaners is the Court of Appeal’s endorsement of the trial judge’s interpretation of the contractual requirements. The Court of Appeal concluded that the trial judge had not erred in concluding that the requirement for the applicant to ‘ensure ... continuous spot cleaning ... as required’ embraced an element of inspection by the applicant. This is notwithstanding the detailed cleaning contract not specifically requiring the applicant to undertake periodic inspections during the meal service, and in light of the answers to interrogatories sworn by GGS in the worker’s claim and tendered in evidence at the trial that inspection of the dining hall floor during meal service was to be undertaken by GGS staff, who were to notify the applicant of any spills requiring attention3. This decision is a cautionary note that the Victorian Courts are prepared to incorporate into the duty of care of a contract cleaner a requirement for periodic inspection, even where the parties entering the contract have not made provision for such inspections.
Barry Nilsson acted for Spotless Facility Services at both trial and in the appeal.
Spotless Facility Services Pty Ltd v Victorian WorkCover Authority [2025] VSCA 50 (28 March 2025)
1 [1998] 3 VR 408 (Ormiston, Phillips and Hayne JJA)
2 [2012] HCA 5; (2012) 246 CLR 182 (French CJ, Gummow, Heydon, Crennan and Bell JJ)
3 [2024] VSC 237, referred to at [42]
