Leverage has always trained the industry that when dealing with maintenance and repairs there are four fundamental principles:
• To advise;
• To inform;
• To select; and
• To arrange.
We have spoken about this in other editions of our newsletters over the years and won’t repeat all of them all over again.
Tanaya, one of Leverage’s paralegals, brought a case to my attention that I believe relates to what we have been teaching regarding “arrange”. Leverage has always taught that “arrange” means to do so expeditiously.
The phrase that comes to mind is, “letting the chips fall where they may, doesn’t pay.” This is the case of Strong V Woolworths Limited (2012) HCA5.
One of the customers at a Woolworths store had dropped a chip on the floor. A woman walking through the shopping centre trod on the chip and slipped over. Yes, as you may guess, the woman who trod on the chip sued Woolworths. It went all the way to the High Court.
In all litigation, where damages have occurred, you need to prove that there is a link between the accident and the action or lack of action of, in this case, Woolworths. Lawyers refer to this as causation and the courts indicated that there must be a probability that the action or lack of action of the defendant was a direct cause of the accident which ultimately related to the personal injury.
Ms. Strong could not prove that there was sufficient time between the dropping of the chip and the accident. In other words, did Woolworths have sufficient time to clean it up before the accident. The courts held that there was probably insufficient time between the drop and the slip for Woolworths to be held liable. In other words, it was just an accident. Woolworths did nothing which breached their duty of care because they acted expeditiously.
This brings us back to our lesson on “arrange.” If something happens, you are not liable if you do everything within your power to get it fixed. For example, water on the floor, a broken lift, broken bannisters etc. In Robinson v Body Corporate Services (2009), the Supreme Court did not hold the Body Corporate Services liable because they had done everything necessary to protect the Lot Owners and their guests. The failure of Woolworths to act in the circumstances (Ms. Strong) could’ve caused them to be liable, however, they didn’t have sufficient time.
The lesson is, clean up and do something quickly. Do everything that is absolutely necessary to protect your people when something happens. You can’t be held liable if you work as quickly as possible.
Just a thought, when I was a kid we used to sing “here comes the bride, all fat and wide, stepped on a banana skin.” Does that mean the bride would have been able to sue the church?
This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.
To get in touch with Bailey, please email email@example.com.