Workplace Injury Rehabilitation and Compensation Act 2013, s 369; Wrongs Act 1958, Part X, ss 48, 49, 51 and 52.

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, referred to; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182, discussed.

1. Brett McGinnes was employed by Geelong Grammar School ('the school') as a property manager. On 16 March 2016, Mr McGinnes was injured in the course of his employment when he slipped in the main dining hall ('the Dining Hall') at the school, and fell heavily ('the incident'). As a result of the incident, Mr McGinnes suffered an injury to his cervical spine which has required surgical interventions.
2. Spotless Facility Services Pty Ltd ('Spotless') held two relevant contracts with the school at the time of the incident, being a contract to provide catering services ('the catering contract') and a contract to provide cleaning services ('the cleaning contract') at the school's premises - including the Dining Hall.
3. Following the incident, Mr McGinnes made a WorkSafe claim against the school, which was accepted, and he commenced to receive compensation pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act'). Mr McGinnes, in a common law proceeding, also claimed damages from two defendants: the school and Spotless. In his claim for compensation and claim for damages, Mr McGinnes alleged that he slipped in the Dining Hall on spilt liquid, which he believed to be soup.
4. In a separate proceeding, the Victorian WorkCover Authority ('the VWA' or 'the Authority') claimed an indemnity against Spotless pursuant to s 369(1) of the Act on the basis that the injury sustained by Mr McGinnes occurred in circumstances which created a legal liability in Spotless to pay damages to Mr McGinnes. Section 369(1) of the Act relevantly provided:

Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority ... was caused under circumstances creating a liability in a third party to pay damages in respect of the injury or death ... the Authority ... is entitled to be indemnified by the third party in accordance with this section.

1. Section 369(3) of the Act provided the method for calculating the amount of indemnity where a legal liability to pay damages by a third party is established. It provides:

The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of -

(a) the amount of compensation paid or payable under this Act in respect of the injury or death; and

(b) the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula -

where -

1. is the amount of damages (disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non-pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;

2. is the amount recovered or recoverable by the Authority or self-insurer under section 367 from the Transport Accident Commission otherwise than under a settlement;

3. is the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party;

4. is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death.

1. Mr McGinnes's common law proceeding was settled. At the trial of the VWA proceeding, the parties agreed that the amount of compensation which had been paid for the purposes of s 369(3)(a) was $809,509.62. They also agreed, for the purpose of the formula in s 369(3)(b), that Factor A was $2 million, Factor B was not relevant, and Factor C was $150,000. It remained for the judge to then determine whether Spotless had a legal liability to pay damages as required by s 369(1) and, if so, the percentage that was Factor X.
2. Following a two day trial of the VWA proceeding in March 2024, on 29 May 2024, pursuant to reasons delivered on 14 May 2024,[1] the judge gave judgment in favour of the VWA and ordered Spotless to pay to the VWA $839,840.16 in respect of compensation paid to 25 May 2024. The judge also ordered Spotless to provide a further indemnity to the VWA, pursuant to s 369 of the Act, in the amount of $270,159.84. Orders in these terms were made because the judge concluded that the VWA had satisfied her that, on the balance of probabilities, the negligence of Spotless was a cause of Mr McGinnes's injury, loss and damage,[2] and that Factor X should be 60%.[3]
3. Spotless now seeks leave to appeal (and, if leave is granted, to appeal) from the orders of the judge on the following proposed grounds of appeal:
   1. The trial judge erred in her finding that the applicant did not have in place a reasonable response to the risk of spillages, and that a reasonable inspection regime would necessarily involve movement to observe all areas.
   2. The trial judge erred in interpreting that the requirement in the contract for 'continuous spot cleaning ... as required' embraced an element of inspection by the applicant.
   3. The trial judge erred in finding that the breach of duty by the applicant was a cause of the worker's injury in circumstances where:

(a) No specific findings had been made by the trial judge as to what a reasonable system of inspection ought to have entailed;

(b) The trial judge erred in relying on Phillips JA in Kocis v SE Dickens Pty Ltd (t/as Coles New World Supermarket) at 419 to find causation;

(c) The finding was contrary to the evidence from which an inference ought to have been drawn that the spill had only occurred shortly prior to the incident.

1. The trial judge failed to provide proper or adequate reasons for her Honour's judgment as the reasons:

(a) Did not identify what a reasonable inspection regime would entail, beyond 'movement to observe all areas';

(b) Did not explain how it could be found that causation was established on the balance of probabilities in the absence of any specific identification of the system of inspection which ought to have been in place.

1. The trial judge erred in apportioning 60% to the applicant in respect of Factor X.[4]

1. At trial, the VWA called two witnesses: Mr McGinnes; and John Quick, the maintenance supervisor at the school. Spotless called two of its employees: Helen Clarke, the site manager for Spotless at the school, who had oversight of the catering contract; and Kevin O'Connor, the cleaning services manager for Spotless at the school.
2. Additionally, documentary evidence was tendered by both parties. This included the cleaning contract and the catering contract, diagrams and photographs, selected answers to interrogatories in Mr McGinnes' damages claim, claim forms, incident reports and correspondence relating to the resealing of the Dining Hall floor.

1. Various photographs and diagrams of the Dining Hall were tendered at trial. The evidence was that, at the time of the incident, the Dining Hall seated approximately 400 people over 50 tables plus a High Table. The Dining Hall was a long room running north to south with a main entrance on the north end, and another entrance on the south end of the east wall. On the west side, at about the midpoint, was a room described as a servery which had two entrances from the Dining Hall. Service of hot food occurred in this room, and to the west of it was a dishwasher room. There was then a kitchen area to the west of the dishwasher room. In the Dining Hall, at about its midpoint, was a cold servery or salad bar area, and across from this (to the eastern side of the Dining Hall) was the High Table with its own servery area. Dining tables were placed in rows running north to south with corridors for movement between them.[5]

The cleaning contract and the catering contract

1. The catering contract and the cleaning contract each contained a 'Statement of Service Requirements', which set out the school's service requirements of Spotless.
2. The cleaning contract service requirements specified that Spotless:

[was] responsible to ensure:

Cleanliness throughout the site as specified

Continuous spot cleaning and minor maintenance as required

...

1. Additionally, minimum cleaning standards were specified in the cleaning contract. These included specific cleaning specifications for the Dining Hall, and a second dining hall which was on the premises,[6] as follows:

DINING HALLS

Daily

Floors swept and spot mopped Machine buff

Passage swept and mopped

End of Term

Floors stripped and polished as required

Yearly

Major high clean of walls, ceiling & light fittings

1. The catering contract service requirements relevantly included:

Cleaning

[Spotless] will be responsible under this contract for cleaning the entire kitchen complex including:

• Kitchen,

• Wet and dry storage areas,

• Waste areas,

• Serveries,

• Dining and Darling Halls,

• Contractor staff areas,

• Dishwasher areas,

• All corridors and access areas.

1. As the judge observed,[7] the only evidence of the circumstances of the incident was given by Mr McGinnes. Mr McGinnes said that, at approximately 1:00 pm, he entered the Dining Hall from the north entrance to get a banana from the cold servery. He passed the cold servery on the side nearest to the High Table. There were no bananas, so he continued towards the south-east exit of the building. The Dining Hall was busy at this time, and he described having to wait for a path to clear because students were standing in the pathway with their trays, preparing to go to the dishwasher area. Referring to a diagram which showed the path he took and the location of the incident, his evidence was that he fell in the area just past the cold servery, before reaching the tables positioned to its south, in line with the central aisle which ran north/south between the tables.
2. As a result of having his right leg amputated following a childhood illness, Mr McGinnes uses crutches. He was using crutches when he walked into the Dining Hall and at the time of the incident. Having not been able to obtain a banana, he was intending to leave the Dining Hall through the south-east exit.
3. In describing the incident, Mr McGinnes said that his left foot 'skated forward and literally went from underneath [him]' and he landed on his left side. He said there was some 'spilt liquid' which he believed was soup. He said that he initially hurt his wrist and left ankle and, when he hit the ground, he felt a 'sort of shudder' go through his body.
4. Mr McGinnes said that he was looking where he was going, but he did not see any spill before the incident. When asked what the spill looked like and what it consisted of, he said:

I mainly knew from like the smell on my pants, it was sort of a brothy with fine food particles which I believe was soup.

1. Mr McGinnes described the spill as being on the left leg of his pants, around his shin and calf, and being 'probably three inches wide by about six inches or something'. He said he 'couldn't really see the colour of the liquid, it was just really just the smell of it on my pants'.
2. Mr McGinnes said that the Dining Hall opened for lunch at 'about 11:45 for the catering staff to eat first'. They would be followed by his facilities team and the administration staff from the main office from about 12 o'clock onwards. He said the students would 'start filtering in' at 'one o'clock, quarter to one, one o'clock through to, I suppose, two-ish'. When asked about whether the incident occurred at a quiet time, a moderate kind of busy time or peak time, he said, 'Probably peak time'. He believed that lunch finished at about 2:00 pm.
3. Mr McGinnes also gave evidence that, after he returned to work, he saw a Spotless team member, Sharon, 'out around the salad bar keeping an eye out for spills'. He said that he believed Sharon was 'the lunch service manager'.
4. In cross-examination, Mr McGinnes was asked and answered the following questions:

I think you told the judge peak time?---Yes.

I think you told the judge you were waiting for a path to clear of students?

---Yes.

Can I just ask you to expand on that, where were the students that you were waiting for them to clear a path?---They were standing in that pathway with their trays preparing to exit to the dishwasher room. So I was just waiting for them to move out of the road.

So the picture we have is of a very busy dining hall, is that right?---Yeah, at times, yeah.

But at the time of your accident it was busy?---Yes.

There were students who were eating?---Sitting eating, yes.

Students who were arriving?---Yes.

Getting their meal?---Yes.

Students who were leaving?---Yes.

Having eaten?---M'mm.

Students who had arrived and had collected their hot food from the servery?

---Yes.

1. In re-examination, Mr McGinnes said that Spotless was responsible for looking after the floor surface of the Dining Hall and cleaning any spills on it.

1. Mr Quick gave evidence that he was the 'responsive maintenance supervisor' employed by the school. He supervised a team of tradespeople who reported to him, and he reported to Mr McGinnes. He said it was Spotless who employed the catering and cleaning staff at the school.
2. Mr Quick's evidence was that lunch started in the Dining Hall at approximately 11:30 am. His 'crew' and the 'office staff' would have their lunch in shifts: the first shift being between 11:45 am and 12:15 pm; and the second shift being between 12:15 pm and 12:45 pm. However, he then said that the crew that reported to him and the ground staff would have lunch from 12:00 pm until 12:30 pm. He said the students would come in for lunch 'from 12:30 usually onwards, a bit later than us, or 12:50 even'; and that lunch would finish in the Dining Hall at approximately two o'clock.
3. Mr Quick's evidence was that Spotless was responsible for inspecting the Dining Hall floor for spills - either Spotless catering staff or Spotless cleaning staff. He gave evidence about a Spotless employee named David whose core duties were to 'maintain the floors in the dining halls[8] and adjoining corridors and spaces, dishwasher room et cetera'. He said that, if there was a spill, it was either the Spotless catering staff or Spotless cleaning staff who would be alerted.
4. When asked more specifically about David's duties in the Dining Hall during lunchtime, Mr Quick said:

David would be on duty in the dishwasher room assisting there with students particularly, you know, to load up the dishwasher, rotating - it is a big rotisserie thing, so he would be assisting there as a cleaner nearby.

1. In cross-examination, Mr Quick said that David would be very busy when the students were finishing their lunch. He was then asked and answered the following questions:

So that would be just before two o'clock?---Probably from 1:45, two o'clock, yeah - no hang on, sorry, 12:45 I'd say onwards.

So when you say he'd be very busy, you mean he'd be very busy in the dishwasher room?---In the dishwasher room, yes.

Helping the students load their dishes?---Yes.

1. In cross-examination, Mr Quick agreed that Spotless was responsible for cleaning the floors at the school's premises.
2. Mr Quick was also cross-examined about the school's answers to some interrogatories administered by Mr McGinnes in his damages claim. In those answers, the school said that it had a system for inspecting the floor. The system was for intermittent visual inspection by staff assigned to supervise during meal times, who would notify spills or other cleaning needed to Spotless. Mr Quick said that he avoided the Dining Hall during lunch times, but the answers given by the school made sense to him.

1. Ms Clarke gave evidence that she was the site manager for Spotless, who looked after catering at the school. She said that Mr O'Connor was the cleaning manager who took control of the day-to-day operations of cleaning at the school, and that Spotless catering had one dedicated cleaner (David) who would come and help in the dishwashing area during the day. She said that David would also clean the floors after breakfast and lunch.
2. Asked how many mouths there were to feed at lunchtime in the Dining Hall, Ms Clarke said, 'Approximately about 900'. Students would queue at the door at lunchtime, but they would not be allowed in until a member of the school staff was present. At times, when the queue was large, they would stop students from coming in, 'just to control the flow'. When students were in the Dining Hall, there would also be a teacher at the door to the servery.
3. As to catering staff, Ms Clarke said that typically for lunch they would have at least two staff and David in the dishwashing area; a catering supervisor, and approximately six to seven catering assistants in the servery area; approximately 12 chefs 'at the back'; a chef 'coming from the kitchen area through the servery to the cold servery to refill the salad bar items'; and a staff member looking after the high table and the bain-marie behind it.
4. Ms Clarke gave evidence that, from time to time, there were spillages. When they occurred, a teacher or a student would alert one of Spotless's staff, 'one of our staff would then go into the dishwashing area where a member of our team would come out to clear the spill'. Small spills would be cleaned up either by a Spotless employee, a teacher or a student by wiping it up with serviettes. Bigger spills would be dealt with by 'hav[ing] a staff member stand over the area and another staff member would come with a wet floor sign and we would stay there until the [spillage] was mopped and dried'.
5. Asked whether the students sometimes spilt things on the floor near the salad bar, Ms Clarke said, 'Always'. She said that there was a higher percentage of spillages around the serveries than in other places in the Dining Hall.
6. In cross-examination, Ms Clarke agreed that Spotless was responsible for cleaning the Dining Hall floor; and that, when notified, Spotless was required to clean up any spills during food service.
7. Ms Clarke described the Dining Hall as being 'the size of Flinders Street Station'. She said lunch for the school students started at 11:30 am or 11:45 am. However, she said that they would start lunch 'earlier at 11:30 for maintenance or the cleaning team [who] would have their lunch on site as well'. She agreed that 'peak time' was around 1:00 pm, and that it was not unusual to have something like 400 or more students in the Dining Hall at that time.
8. Ms Clarke gave evidence that Spotless staff were responsible for preparing the food for lunch and serving the hot component of the lunch in the servery. The cold serveries in the Dining Hall were self-service. The soup was self-service, as was the coffee and water.
9. Ms Clarke said that, prior to the commencement of lunch, the floor of the Dining Hall would be cleaned at about nine o'clock. There was no cleaning between nine o'clock and 11:30 am.
10. Ms Clarke said that David's duties were to mop and sweep after each meal service. When that duty was done, he would work in the dishwashing area. However, if there was a spill and Spotless was alerted to it, then David would come out and clean it.
11. Ms Clarke said on a number of occasions during her cross-examination, 'We all look for spills when we're in the Dining Hall'. She said:

We were always on duty when in the dining room for spills (sic), any spills that happened we were alerted straightaway by a teacher or a student and we attended to that straightaway.

1. Mr O'Connor gave evidence that, at the relevant time, he was the cleaning services manager for Spotless at the school. In 2016, he was supervising approximately 25 cleaners, made up of full-time personnel, part-time and casual staff. Spotless had the contract with the school to provide cleaning services throughout the school's premises. Mr O'Connor reported to Spotless's site manager, Ms Clarke.
2. Mr O'Connor gave evidence that the cleaning division supplied the catering team with a full-time cleaner (David). David's main responsibilities were 'to make sure both Dining Halls and the servery floors ... were well maintained'. Mr O'Connor said that David would also take on other duties, such as working in the dishwasher room or any other area where a Spotless catering employee might direct him.
3. Mr O'Connor gave evidence that the school was strict in its cleaning requirements, but that it never raised any concern about spot cleaning in the Dining Hall.
4. In cross-examination, Mr O'Connor agreed that Spotless was in charge of the cleaning in the Dining Hall and responsible for cleaning spills. He said that the floor of the Dining Hall would be cleaned after breakfast, 'somewhere around 8, 8:30'.
5. Asked when students would come to the Dining Hall for lunch, Mr O'Connor gave a number of different answers: namely, 'somewhere about 12, half past 12', '12:30-ish or thereabouts. 12:30, 1:45', and that staff would be 'out of the road' at 12:30 pm, which would then allow students to come through.
6. Mr O'Connor was asked to specify the different ways that spills would be identified during meal service. He said:

They would be identified by various means, by the cleaner, by the catering staff themselves, if the girls going out to put more salad in the salad bar ... noticed a spill they would isolate that area straightaway. Also ... school staff would report if they noticed a spill and students should also notify catering staff if they actually caused a spill or they know of a spill so that through due diligence that area can be isolated, people stand there to stop people from walking in that area until such time as the second person arrives with a mop or a bucket to make sure that's cleaned and dried.

1. The judge identified the issues that required resolution as being:

(a) Was there negligence or breach of statutory duty by Spotless?

(b) If so, to what extent did Spotless's act, default or negligence cause or contribute to [Mr McGinnes's] injury?[9]

1. After summarising the evidence,[10] the judge turned to the parties' submissions. The judge noted the VWA's submissions as follows:

(1) While Spotless had a system of cleaning following breakfast, it did not have an adequate system of inspection for the detection and cleaning of food spills during meal services. Spotless had no system providing for continuous spot cleaning during meal services. It ought to have had someone present in the Dining Hall during the service period who was designated to look for possible spills. Specifically, it needed to have a system of inspection itself, and not rely on a 'reactive system of responding to reported spills'.

(2) While there was no evidence as to how long the soup had been on the floor of the Dining Hall at the time of the incident, in the absence of any evidence of any cleaning by Spotless after 11:30 am, it could be inferred that a proactive system of inspection would probably have identified the spill before Mr McGinnes slipped.

(3) Having regard to the school's responsibility for Mr McGinnes's injuries, Factor X 'ought to be a percentage greater than 50%'.[11]

1. The judge observed that Spotless accepted that it owed a duty of care to Mr McGinnes as the cleaning and catering contractor. The judge noted Spotless's characterisation of that duty as 'a duty to act as an experienced caterer and/or cleaner informed by the contractual tasks that it [was] undertaking'.[12] The judge then summarised Spotless's submissions as follows:

(1) The contractual obligation to undertake 'continuous spot cleaning' should not be equated with 'instantaneous spot cleaning'; nor should the contractual qualification 'as required' be overlooked.

(2) The cleaning contract required Spotless to have the resources to respond in a reasonably short timeframe when notified, as it did in this case, but not to monitor or maintain an inspection regime.

(3) No inference could be drawn that the spill had been present for a sufficient time on the floor of the Dining Hall, so that it could be concluded 'a proper inspection system would have identified the spill and removed it prior to the fall'.

(4) If a legal liability to pay damages was established against Spotless, then the liability 'would be very small compared to the contribution of the school's negligence to Mr McGinnes's injury'.[13]

1. The judge commenced her analysis by noting that it was accepted by both parties that Spotless owed Mr McGinnes a duty of care; and that the risk of injury from food spillage during meal service was a foreseeable risk.[14]
2. The judge held that the contractual requirement to spot clean 'as required', 'embrace[d] an element of inspection by Spotless'.[15] The judge then made the following observations and findings:

It is entirely foreseeable that a dining hall in which large numbers of diners are engaged in self-service and transporting trays of food and drink to and from tables presents a high risk of spillage. A caterer who is also responsible for cleaning the area has a duty to have a system in place to address that likely risk. Insofar as the contract informs the content of the duty of care, it is relevant that the catering contract itself provided for a full time cleaner in the areas under the operation of the catering contract.

...

Given the numbers of people walking around the Dining Hall carrying trays of food, a reasonable person with both catering and cleaning responsibilities would have some system of inspection in place for spillages in the high traffic areas throughout the lunch service. I accept that a reasonable system of inspection did not require continuous observation or immediate spot cleaning. The size of the area to be inspected - covering not only the Dining Hall but a second dining hall used by the junior and middle school as well as the kitchen, dishwasher and servery areas -, as well as the number of people - upward of 400 at any time - would make this a standard of perfection.[16]

1. In relation to Spotless's submission that it had an appropriate system which involved staff keeping a lookout for slipping hazards, the judge said:

I have some doubt that, in areas where spillages or other slip hazards are high, incidental observation by cleaning and catering staff while attending to other tasks could be described as a system. It could equally be characterised as an absence of a system as was conceded by Woolworths in the case of Strong v Woolworths. Given the small number of Spotless staff in the Dining Hall during meal service there was little opportunity for even incidental inspection. Either way, whether there was no system or the system in place was not an adequate response to the risk, Spotless was in breach of its duty of care.[17]

1. The judge then completed her analysis of breach, finding that Spotless was negligent, in the following terms:

Although the plaintiff suggested that a static post near the cold servery would be a reasonable response I do not accept that this is so. The cold servery area had a high risk of spillage for a combination of reasons and the presence of mats in that area was an additional step that met this increased risk. There is no basis on which to infer that the nearness of the cold servery was of any particular relevance to the presence of the spilt soup. The spill was located in the high traffic corridor along which people moved between serveries and tables. These high traffic areas need some system of inspection by Spotless. Accepting that the size of the area to be inspected, whether the total area being used for the service or just the Dining Hall itself, could not be continuously observed from one static position, a reasonable inspection regime would necessarily involve movement to observe all areas and so not involve continuous observation.[18]

1. Having found for the VWA on the issue of negligence, the judge then turned to the question of whether Spotless's negligence was a cause of Mr McGinnes's injury. In the course of this analysis, the judge made detailed reference to this Court's decision in Kocis v SE Dickens Pty Ltd[19] and the High Court's decision in Strong v Woolworths Ltd.[20] The judge rejected a submission made by Spotless that she should infer from particular parts of the evidence that the spill had only been present for a short time when the incident occurred, saying that that question depended 'on a number of variables not addressed [in the] evidence which would make it little more than speculation'.[21]
2. A little later in the Reasons, the judge noted the observation of Phillips JA in Kocis, that the question of causation, a question of fact, 'is addressed to the actual act or omission of a defendant that amounts to negligence; whether that be the lack of a system, the inadequacy of the system or the failure to follow a reasonable system at a particular time',[22] before then setting out the following passage from his Honour's judgment:

[I]f a defendant has no system at all in place for periodic inspection or cleaning ... it is surely not difficult to see how a jury could find not only that the defendant was negligent but that the negligence was causally linked to the plaintiff's injury. And where the defendant has a system for periodic inspection and cleaning in place but for some reason or other it was not in operation on the day in question, it would seem to follow that the longer the period since the last actual cleaning of the floor or the last actual inspection for spillages, the easier it will be for the jury to conclude that on the balance of probabilities the defendant's negligence was indeed a cause of the plaintiff's injury. In either case, the plaintiff's case may be the stronger according to the number of periodic inspections that in the opinion of the jury should have occurred ... but the timing of the last regular inspection for spillage ... will not bear directly upon the issue of causation, at least where the negligence consists of more than one such neglect and failure. ... If the negligence lies in the defendant's failure to inspect and clean over a number of hours or perhaps even days, the question is whether that neglect - and not something less than that - was more probably than not a cause of the plaintiff's injury.[23]

1. Immediately after setting out this passage from the judgment of Phillips JA in Kocis, her Honour said:

The worker's fall occurred 90 minutes into a two and a half hour lunch service, at a time when three-fifths of the total service time had elapsed without any periodic inspection at all. Given the high likelihood of spills occurring during that time frame it is probable that the failure to have any system of inspection throughout this 90 minute time period was a cause of the worker's injury. The causal potency might be increased by evidence as to the frequency of inspection during that time required by a reasonable person in the position of a catering and cleaning contractor, but the absence of any systemic inspection for more than half the entire period of lunch service can readily demonstrate a conclusion that Spotless's negligence is a probable cause of the worker's injury.

This reasoning is sound even though an actual finding of when the soup was spilt cannot be made. The majority in Strong v Woolworths referred to the observations of Hayne JA, as he then was, who said:

• In my view it is of the first importance to bear steadily in mind that a plaintiff must prove his or her case on the balance of probabilities and that it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. Thus, a jury may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not probability) that the substance was spilled only a moment before the plaintiff slipped on it. The question of causation is to be resolved by consideration of the probabilities.

I do not accept the submission that Strong v Woolworths is distinguishable. Although it concerned the duty owed by an occupier supermarket, its approach as to reasoning on causation in relation to duties owed by those in relation to slipping hazards is applicable to the present facts.

The plaintiff has satisfied me that on the balance of probabilities the negligence of Spotless was a cause of [Mr McGinnes's] injury loss and damage.[24]

1. Having found for the VWA on the question of causation, the judge then turned to the Factor X issue.
2. The judge observed that the school owed a non-delegable duty of care to Mr McGinnes, saying that, given the non-delegable nature of its duty of care, she did not accept the school's submission that its liability was small by comparison to that of Spotless.[25] The judge described the breach of duty by Spotless as 'systemic', involving 'a failure to have in place a system that responded to the foreseeable risk of spillage in the Dining Hall and a reliance primarily on third party reports'.[26] The judge said that, in the circumstances, she would identify Factor X as 60%.[27]

1. Broadly speaking, Spotless's five proposed grounds of appeal dealt with the issues of breach, causation and apportionment.
2. Under proposed grounds 1 and 2, Spotless contended that the judge erred in finding that its system for detecting and cleaning up spillages in the Dining Hall was inadequate; that a reasonable inspection system would have necessarily involved movement to observe all areas of the Dining Hall; and that the provision for 'continuous spot cleaning ... as required' in the cleaning contract embraced an element of inspection by Spotless. In the alternative, Spotless contended under proposed ground 4(a) that the judge's reasons were inadequate on the issue of breach because they did not identify what a reasonable inspection regime would entail, beyond 'movement to observe all areas'.[28]
3. Under proposed ground 3, Spotless contended that the judge erred in finding that the breach of duty found by her Honour was a cause of Mr McGinnes's injury, in circumstances where: (1) no specific findings had been made by the judge as to what a reasonable system of inspection ought to have entailed; and (2) such a finding was in any event contrary to the evidence from which an inference ought to have been drawn that the spill had only occurred shortly prior to the incident. In the alternative, under proposed ground 4(b), Spotless contended that the judge's reasons on causation were inadequate because they 'did not explain how it could be found that causation was established on the balance of probabilities in the absence of any specific identification of the system of inspection which ought to have been in place'.
4. Under proposed ground 5, Spotless contended that the apportionment of 60% against it was excessive in circumstances where:
   • Spotless was neither the employer of Mr McGinnes, nor the occupier of the Dining Hall and, unlike the school, Spotless's duty of care to Mr McGinnes was not a non-delegable one;
   • staff members of the school were physically present in the Dining Hall, in circumstances where the responsibility for the detection of spillages was not solely (or even primarily) Spotless's;
   • the school was closely involved in overseeing the cleaning and dictating to Spotless its requirements in respect of cleaning;
   • while it was open to the school to include in the cleaning contract an express requirement that Spotless have a mobile system of inspection for spillages, it had not done so; and
   • there was no evidence that the school had ever raised any concerns with Spotless or made any request of it to change its system for the detection and cleaning of spillages in the Dining Hall.

1. In essence, the VWA supported the judge's reasoning on breach, causation and the apportionment. Moreover, it submitted that there was no inadequacy in the Reasons on the issues of breach and causation.
2. On the issue of breach, the VWA submitted that there was no error in the judge finding that Spotless had not implemented a reasonable response to the risk of injury caused by spillages. It submitted that, on the evidence, no other finding was open. It also submitted that there was no error in the judge finding that a reasonable inspection regime involved movement to all areas. Additionally, the VWA submitted that there was no error in the judge concluding that the requirement in the catering contract to continuously 'spot clean' was capable of embracing the notion of identifying the 'spots' which required cleaning. The judge did not conclude that the contractual term required inspection. Her Honour's conclusion in respect of the catering contract was a 'step to finding that the contract did not preclude, or foreclose, a standard of care that did'.
3. On the issue of causation, the VWA contended that there was no error in the judge declining to infer that the spill upon which Mr McGinnes slipped occurred shortly prior to the incident. In support of the judge's reasoning, the VWA submitted that the judge was correct when she said that such an inference rested on unsupported assumptions and impermissible speculation.[29]
4. On the issue of the apportionment, the VWA submitted that the apportionment of responsibility between negligent parties is an evaluative and discretionary one, which is not lightly interfered with by an appellate court. An error of the kind referred to in House v The King[30] is required before an appellate court will disturb such a finding. The VWA submitted that no such error had been established in the present case, and that the judge's approach to the apportionment was 'cogent, anchored in the factual record, and plainly open'.

1. Section 369(1) of the Act requires the VWA to establish that Mr McGinnes's injuries were 'caused under circumstances creating a liability in [Spotless] to pay damages'. While no reference was made by the parties or the judge at trial to the question of whether the provisions of Part X of the Wrongs Act 1958 had any application in determining that question, there is authority in the Trial Division that provisions in Part X (including s 48 which deals with negligence, and ss 51 and 52 which deal with causation) are to be applied in a proceeding of the present kind (such as s138 of the Accident Compensation Act 1985 - the predecessor of s 369 of the Act) when determining whether an injury was caused under circumstances creating a liability in a third party to pay damages.[31]
2. Having regard to these authorities, the parties were content for this Court to approach the correctness of the judge's conclusions on the issues of breach of duty and causation by applying the provisions of Part X of the Wrongs Act, and particularly ss 48, 49 ,51 and 52.
3. In essence, it appeared to be the position of the parties that, in the circumstances of this case, the ultimate result (that is, the determination of the issues of breach of duty and causation) would be the same whether one adopted a traditional common law approach or whether one applied the relevant statutory provisions contained in Part X of the Wrongs Act. We note, however, that in Adeels Palace Pty Ltd v Moubarak,[32] a case dealing with a cognate provision, s 5D(1) of the Civil Liability Act 2002 (NSW), the High Court said:

It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.[33]

Did the judge err on the issue of breach of duty?

1. Consistent with the observations just made, the exercise of determining whether the judge erred on the issue of breach of duty is to be carried out by the application of ss 48 and 49 of the Wrongs Act.
2. Having said that, Spotless's submissions that the judge erred in concluding the issue of breach of duty against it and/or in failing to provide adequate reasons on that issue are devoid of merit.
3. First, the relevant risk of significant injury was patent: a person in the Dining Room during the luncheon service slipping on a spillage on the floor. There was no error in the judge concluding that a reasonable response to the not insignificant risk of injury caused by such a spillage was a system which 'would necessarily involve movement to observe all areas'.[34] As the judge acknowledged, such a system '[would] not involve continuous observation'.[35] And, as the judge had already observed, it was 'entirely foreseeable that a dining hall in which large numbers of diners are engaged in self-service and transporting trays of food and drink to and from tables presents a high risk of spillage'.[36] Moreover, that high risk of spillage gave rise to a not insignificant risk of serious harm to users of the Dining Hall.[37]
4. Spotless's suggested reasonable response (i.e. that of the status quo) to the relevant risk of significant injury was totally unreasonable. On one view, it effectively required an accident (or near miss) to occur before attending to its cause.
5. Secondly, there was no error in the judge concluding that the provision in the cleaning contract which made Spotless 'responsible to ensure ... continuous spot cleaning ... as required' embraced an element of inspection by Spotless.[38] Again, as the judge put it, neither the express terms of the catering contract, nor a reasonable response to the risk of slipping on spillages in the Dining Hall, confined Spotless to a reactive role to clean only when advised of the need to spot clean by a school staff member or student, or when a Spotless staff member incidentally identified such a need during meal service.[39]
6. Thirdly, Spotless's complaint that the Reasons did not identify what a reasonable inspection regime would entail, beyond saying 'movement to observe all areas' is not made out. True it is that the judge did not identify in terms the specifics of the hypothetical reasonable system. However, the judge was not required to specify with mathematical precision the timing of movements or the pathway over which a Spotless employee was required to pass in order for an inspection system to be a reasonable response to the foreseeable risk of injury that spillages in the Dining Hall presented. It was sufficient for her Honour to state that a reasonable response was an inspection regime (implicitly performed by one person in the Dining Hall during meal times) which 'would necessarily involve movement to observe all areas and so not involve continuous observation'.[40]
7. No such system was provided by Spotless, and accordingly Spotless's breach of duty was established (with it then becoming necessary for the judge to consider whether that breach of duty was a cause of Mr McGinnes's injuries). The judge's path of reasoning is plain on the face of the Reasons.
8. It follows that proposed grounds 1, 2 and 4(a) must be rejected.

1. Notwithstanding the failure by the parties at trial to refer to Part X of the Wrongs Act, the issue of causation fell to be determined by her Honour (and falls to be determined by us) in accordance with ss 51(1) and 52 of the Wrongs Act.[41] Those sections relevantly provide:

51 General principles

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

...

52 Burden of proof

In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

1. Neither before the judge, nor in this Court, was there any issue about the scope of liability (s 51(1)(b)). The parties conducted this proceeding on the basis that if factual causation (s 51(1)(a)) was made out by the VWA, then it was appropriate for the scope of Spotless's liability to extend to the harm so caused.[42]
2. At the risk of repetition, the critical elements of the judge's reasoning leading to her conclusion that causation was established appear to be as follows:

(1) The incident 'occurred 90 minutes into a two and a half hour lunch service, at a time when three-fifths of the total service time had elapsed without any periodic inspection at all'.[43]

(2) 'Given the high likelihood of spills occurring during that time frame [90 minutes] it is probable that the failure for having a system of inspection throughout this 90 minute time period was a cause of [Mr McGinnes's] injury'.[44]

(3) 'The causal potency might be increased by evidence as to the frequency of inspection during that time required by a reasonable person in the position of a catering and cleaning contractor, but the absence of any systemic inspection for more than half the entire period of lunch service can readily demonstrate a conclusion that Spotless's negligence is a probable cause of [Mr McGinnes's] injury'.[45]

(4) Strong is not distinguishable from the present case. Its 'approach as to reasoning on causation in relation to duties owed by those in relation to slipping hazards is applicable to the present facts'.[46]

1. Sections 51 and 52 of the Wrongs Act required the VWA to establish on the balance of probabilities that the hypothetical reasonable inspection and cleaning regime postulated by the judge, and set out at [77] above, would have resulted in the spillage being observed and removed before 1:00 pm thus preventing Mr McGinnes's fall and injury. This, as the authorities demonstrate, required the VWA to establish approximately when, as a matter of probability based on the evidence (or more likely, based on logical inferences drawn from the evidence), the spillage occurred. Only then could it be determined whether the putative system of inspection would have prevented Mr McGinnes's fall.
2. With respect, and for the following reasons, we disagree with the judge's analysis. First, the fact that the incident occurred 'when three-fifths of the total service time had elapsed'[47] or that there was an 'absence of any systemic inspection for more than half the entire period of [the] lunch service'[48] does not, without more, lead to the conclusion that Spotless's negligence was a probable cause of Mr McGinnes's injury. Indeed, the question of whether the remaining period of lunch service after the incident was only one hour, two hours or some other time does not bear on the question of whether the failure to have an appropriate system of inspection at any time prior to the incident was a cause of Mr McGinnes's injury. Moreover, such reasoning appears to wrongly assume that there was an equal probability of a spillage throughout the period in question whereas, as we explain below, there was a significantly higher probability of soup being spilt during periods when the Dining Hall was crowded and busy than during less busy periods.
3. Secondly, although the 'high likelihood of spills occurring' during the lunch service was plainly relevant to the issue of breach and the reasonableness of any response by Spotless to this not insignificant risk, it says little about whether the failure to have an appropriate system of inspection between 11:30 am and 1:00 pm on the day of the incident was a cause of the incident.
4. While the judge rightly rejected Spotless's submission that she should infer that the spill had been present for only a short time before the incident, on the basis that such a positive assertion was little more than speculation on the evidence in this case,[49] it is to be remembered that Spotless was not required to prove when the spillage occurred. As we have already said, in determining Spotless's liability for negligence, the VWA bore the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.[50]
5. Contrary to the conclusion of the judge, the facts of the present case are relevantly distinguishable from the facts in Strong. Specifically:

(1) The plaintiff in Strong slipped on a chip on a 'sidewalk sales area' outside a department store in a shopping centre. The sidewalk area was under the control of the store operator. Importantly, the relevant timeframe within which the chip could have been spilt onto the sidewalk area was between 8:00 am and 12:30 pm.[51]

(2) In the High Court, the case was conducted on the basis that reasonable care required the inspection and removal of slipping hazards in areas under the control of Woolworths at intervals of not greater than 20 minutes.[52]

(3) The majority of the High Court,[53] in overturning the conclusion of the New South Wales Court of Appeal on causation, said that there was 'no basis for concluding that chips were more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning'.[54] Thus, it followed that the probability of the chip being dropped at any time between 8:00 am and 12:30 pm on the sidewalk sales area was uniform throughout this period of time.

(4) The majority then concluded that the probabilities thus favoured a conclusion that the chip was deposited in the longer period between 8:00 am and 12:10 pm, and not the shorter period between 12:10 pm (the time of the last hypothetical reasonable inspection) and the time of the fall.[55]

1. Whereas, in the present case, the relevant evidence and circumstances were as follows:

(1) The floor of the Dining Hall was cleaned at about 9:00 am, following the completion of breakfast, and the Dining Hall was then not re-opened until the commencement of the lunch service at 11:30 am. In the circumstances, the very high probability is that the soup was spilt onto the floor between 11:30 am and 1:00 pm (and not at any time before 11:30 am).

(2) Between 11:30 am and 12:30 pm, a relatively small number of people were in the Dining Hall for lunch. These included Mr Quick's 'crew', office staff and ground staff. These were all adults, and it can be inferred that if the spillage was in place during that period, it would have been easily observed (given the small numbers in attendance) and more likely to have been removed.

(3) The Dining Hall became busier when the students came in for lunch and began to fill it. The evidence about when this usually happened was, variously: at 'one o'clock, quarter to one, one o'clock through to, I suppose, two-ish';[56] 'from 12:30 usually onwards, a bit later than us [Mr Quick and his crew], or 12:50 even';[57] 'at 11:30 or 11:45';[58] and 'somewhere about 12, half past 12', '12:30-ish or thereabouts. 12:30, 1:45'.[59]

(4) 1:00 pm was 'peak time'.[60] On the day in question, at 1:00 pm, the Dining Hall was so busy at the time of the incident (1:00 pm) that Mr McGinnes had to wait for students to clear in front of him so that he could proceed from the centre of the Dining Hall to the south-east exit.[61]

1. While the four witnesses who gave evidence at trial gave evidence of varying times at which the Dining Hall commenced to fill with students, the tenor of the evidence was that, initially the Dining Hall was open for lunch for a small number of staff and other employees, before starting to fill with students at or shortly after 12:30 pm, with peak time (when the Dining Hall was crowded and busy) being 1:00 pm.
2. The evidence relevant to causation in the present case was thus very different from the evidence relevant to causation in Strong. On the evidence, there was a significantly higher probability of the soup being spilt onto the Dining Hall floor between 12:45 pm (or thereabouts when the Dining Hall began to become busy and crowded with students) and 1:00 pm when the incident occurred, than during the quieter period of time between 11:30 am and 12:45 pm or thereabouts. Whereas in Strong, the majority of the High Court concluded that the evidence in that case showed an equal probability of the chip being dropped at any time over the relevant period between 8:00 am and 12:30 pm.
3. As we have concluded, the exercise of reasonable care by Spotless required it to have a system for the inspection and cleaning up of spillages in the Dining Hall during meal times, and in particular during those periods when the Dining Hall was crowded and busy. The system required a dedicated Spotless employee to move throughout the Dining Hall during these times, looking for spills and taking appropriate action when they were found. Realistically, and drawing on our assessment of all the evidence as to the size of the Dining Hall and the number of people within it at the relevant times, such a system should have resulted in all of the relevant parts of the Dining Hall being inspected by a dedicated cleaner every 15 minutes or so. During less busy periods, one might envisage each part of the floor being inspected every ten minutes or so. In busier times, when crowds of students were congregating, one might envisage each part of the floor being observed every 20 minutes or so. Having regard to the state of the evidence in this case, these times can only be approximations at best.
4. The insurmountable difficulty for the VWA's case is that, even if there had been such a system in place, it cannot be said that, on the balance of probabilities, the soup on which Mr McGinnes slipped would have been detected by the dedicated mobile cleaner and attended to so that the incident would not have occurred. Given the unlikelihood that the spillage occurred before 12.45 pm, and the increasing probability of the soup having been spilt closer to 1:00 pm than at any time before 12:30 pm, it is not possible to reason in the fashion utilised by the majority in Strong.[62] While it can be reasonably assumed that a hypothetical inspection would have occurred at some indeterminate time between 12.30 pm and 1.00 pm, whether the spillage would have been present at the time of such an inspection is speculative and unable to be sustained by logical inference as it was in Strong.
5. At best for the VWA, it might be said that on the whole of the evidence in this case, it was no more probable than not that had Spotless had in place the system of 'movement to observe all areas' as specified by the judge, the incident would have been averted. That is, however, insufficient to establish causation - s 52 of the Wrongs Act imposing on the VWA the burden of proving, on the balance of probabilities, the fact that, but for the absence of Spotless's negligence, the incident would not have occurred.[63]
6. It follows from the above that leave to appeal must be granted and the appeal allowed on proposed ground 3. In the circumstances, it is not necessary for us to say anything about proposed ground 4(b), in which complaint is made about the judge's reasons on the issue of causation.

1. Having regard to our conclusion on the issue of causation, it is no longer necessary for us to deal with Spotless's complaints about the judge's determination that Factor X should be 60%. For completeness, however, we would observe that, if we had upheld the judge's conclusion on the issue of causation, we would have concluded that her Honour made no error of the kind described in House v The King; and thus we would not have interfered with her Honour's assessment.

1. We will make orders granting leave to appeal on ground 3 only, allowing the appeal, setting aside the judge's orders, and ordering in lieu that there be judgment for Spotless against the VWA.

[1] Victorian WorkCover Authority v Spotless Facility Services Pty Ltd [2024] VSC 237 ('Reasons').

[4] Proposed ground 1A was abandoned during the course of the hearing.

[5] One of the diagrams of the Dining Hall tendered in evidence was reproduced by the judge at Reasons [12]-[13].

[8] Presumably a reference to the Dining Hall and the Darling Hall.

[19] [1998] 3 VR 408 (Ormiston, Phillips and Hayne JJA) ('Kocis').

[20] [2012] HCA 5; (2012) 246 CLR 182 (French CJ, Gummow, Heydon, Crennan and Bell JJ) ('Strong').

[23] Kocis [1998] 3 VR 408, 419.

[24] Reasons, [64]-[67] (footnote omitted).

[30] (1936) 55 CLR 499.

[31] See in particular Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412, [34]-[37] (Beach J); Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd [2015] VSCA 58, [63] (Kaye JA); Victorian WorkCover Authority v Monash University [2016] VSC 178, [40]-[41] (McDonald J) - all cases relating to claims brought by the VWA pursuant to s138 of the Accident Compensation Act.

[32] [2009] HCA 48; (2009) 239 CLR 420 (French CJ, Gummow, Hayne, Heydon and Crennan JJ) ('Adeels').

[33] Adeels [2009] HCA 48; (2009) 239 CLR 420, 440 [44]. See also Strong [2012] HCA 5; (2012) 246 CLR 182, 190-1 [18]-[19].

[37] See s 48(1)(b) and (2)(b) of the Wrongs Act.

[41] No party suggested before the judge, or in this Court, that ss 51(2)-(4) had any relevant application in this case.

[42] Wrongs Act, s 51(1)(b).

[50] See s 52 of the Wrongs Act.

[51] Strong [2012] HCA 5; (2012) 246 CLR 182, 187 [6], 198 [38].

[53] French CJ, Gummow, Crennan and Bell JJ.

[54] Strong [2012] HCA 5; (2012) 246 CLR 182, 197 [37].

[62] For completeness, we note that Heydon J (who was in dissent in Strong) held that causation was not established in that case because of his conclusion that the chip was more likely to have been spilt at lunch time, rather than at some point earlier in the morning: see Strong [2012] HCA 5; (2012) 246 CLR 182, 210-11 [70]-[71].

[63] Strong [2012] HCA 5; (2012) 246 CLR 182, 190 [18]. See also Adeels [2009] HCA 48; (2009) 239 CLR 420, 443 [55].