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The Pitfall of Speculation

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In the recent case of Karlevski v Vicinity Centres PM Pty Ltd & Anor [2023] VCC 482, the County Court of Victoria dispelled the notion that a Plaintiff seeking to rely purely on speculation was sufficient.

Proclaim act on behalf of both defendants, Vicinity Centres PM Pty Ltd and Consolidated Property Services in relation to defending Public Liability claims.

Wotton & Kearney defended the claim at the County Court on behalf of Vicinity and Kennedys on behalf of Consolidated.

The Plaintiff, slipped on water at Northland Shopping Centre and brought action against Vicinity as the Centre Owner/Manager and Consolidated as the contracted cleaning company. The incident was captured on CCTV footage and it was not disputed that the Plaintiff did in fact slip on water. However, the footage was inconclusive in confirming where the water came from or how long it had been on the floor. The Plaintiff inferred that the water likely came from a roof leak, however this argument was contested by both Defendants who presented that there was insufficient evidence to support this theory and the inference was merely a speculation rather than conclusive evidence.

His Honour ruled in favour of the Defendants and noted that none of the circumstances presented by the Plaintiff supported a reasonable inference that the roof leak was probable. His Honour contended that “The issue is whether an appropriate path of inferential reasoning supports a conclusion that there was  sufficient rain to cause the roof to leak. As I shall explain, in my view to draw such a conclusion would involve impermissible speculation”.

In consideration of this recent case, it is imperative to note that as Owners/Occupiers and contracted professionals with responsibilities, it is still vital to maintain adequate record keeping, regular maintenance regimes and proactive risk mitigation measures. Whilst regular inspections and maintenance may well be undertaken, should a matter progress to Court, adequate record keeping is imperative in establishing the foundations of a good defence.

Whilst Plaintiff’s will not always lose cases without conclusive evidence, Defendants can take some reprieve in knowing that the inference of speculation does not discharge the Plaintiffs burden of proof in establishing causative circumstances.

A key takeaway that will seek to aid Defendants in similar instances was noted by his Honour, “this is an example of speculation as opposed to a conclusion based on evidence”.

Effective ground up claims management is essential in formulating a defensive basis for any claim. As one day, what may have been perceived as a simple “slip and fall”, could progress into costly litigation.


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