Spackman v Stevens & Anor  QDC 118
The Plaintiffs claimed damages for personal injuries sustained when the timber pool deck of her rental property cracked under her weight. She sued both the owner and the builder of the deck.
Her evidence, which was accepted by the Court, was that she and or her husband:-
- had complained about the deck to the letting agent at the initial inspection;
- had complained about the deck on at least 1 occasion whilst paying the rent;
- had signed a ‘Notice to Remedy Breach’ under section 192 of the Residential Tenancies Act requiring ‘Emergency Repairs to a dangerous situation not completed within a reasonable time ie. pool decking.’
The defendant owner gave evidence that he and his builder had inspected the deck and had found no problems with cracking. The overall impression gleaned by the Court from their evidence was that a number of patch-up jobs on a ‘weathered and deteriorated’ deck had been performed and that the deck was simply not being properly maintained.
His Honour commented at paragraphs 38 and 39 that “what went wrong here was not attributable to some hidden defect but a defect or weakness which … was obvious and something which came foursquare within the scope of the complaints/warnings of the Spackmans. Essentially, they wanted a safe surface to move about on. Deficiencies in the defendants’ inspection in my opinion are established by the supervening accident. [Expert] evidence is persuasive that the purported inspection missed an obvious source of foreseeable damage to users of the deck to whom the defendants had a duty of care… They were in possession of multiple complaints or warnings, and most recently the Notice to Remedy Breach four months after the initial complaint, two months before the accident. The safety of the decking generally was called into question; it was not for the plaintiff to identify specific problem areas on pain of losing any entitlement to complain if some damage was caused by them. It does not appear that [the owner] had any difficulty in obtaining access for himself and [the builder] whenever it might have been convenient, notwithstanding the limitations imposed in the Act upon a landlord’s access. The Spackmans’ complaint, of which [the owner] was made aware, was about the walking surface of the deck; that is what failed in the accident. The case is unlike one in which a defendant is made aware of a complaint or problem regarding the walking surface but an ensuing accident is attributable to a failure elsewhere, in supporting structures or balustrades, for example. Here, the observations/complaints of “cracking” anticipating and covered the very incident that happened.”
What to Take Away
In a close-run matter the Trial Judge was openly critical of the Plaintiff’s legal team in not bringing a claim based on breach of contract and breach of statutory duty in reliance upon the terms of the Residential Tenancies Act. This, according to his Honour, would have made the Plaintiff’s case much more ‘straight forward’. Judge Robin in fact commented at the end of the closing submissions that he was “going to find for the Defendants”, however ultimately changed his mind and said despite the battery of failed decking cases relied on by defence Counsel including Emery v Foot the present circumstances were different. This is probably a decision that is safely confined to its own facts though obviously, the Court was considerably influenced by the fact that specific complaints had been made about the general condition of the deck and what appeared to be done in response were only really patch up repairs.