Wright v. KB Nut Holdings Pty Ltd  QCA 66
Recently the Queensland Court of Appeal (consisting of Muir JA, Margaret Wilson and Douglas JJ) was asked to consider an Appeal by a claimant who failed in her action at first instance against the Respondent owners of the Bonapartes Serviced Apartments, Springhill. The question on Appeal was whether there was a breach of duty of care that satisfied the “but for test” and the commonsense concept of causation discussed by Deane J in March v. Stramare (E & MH) Pty Ltd.
The circumstances of the claim
The Appellant and her family had flown from Adelaide to Brisbane to stay at the Bonapartes Serviced Apartments. On arrival at 5.00 pm on 18 April 2009 they found the apartments to be in an unsatisfactory state of repair and cleanliness. On 19 April 2009 they visited Australia Zoo and called the owner complaining about the state of the apartment. On their return they observed that the owner had entered the apartment and made some attempt to clean. The following morning the Appellant met with the owner to complain further. She was told by the Respondent that they had terminated the contract of the current cleaners.
The Appellant then informed the owner that she was not prepared to stay in the apartment in its current state and would clean it herself. Whilst cleaning the stairs of the apartment, the Appellant suffered a needle-stick injury from a used needle penetrating her right index finger. The Appellant’s injuries included a psychiatric reaction to the event and the Primary Judge assessed her damages as a consequence of those injuries at $494,759.38. The Primary decision of His Honour Judge Dorney QC is reported at Wright v. KB Nut Holdings Pty Ltd (No. 1)  QDC 202.
The cost determinations are discussed at  QDC 215 and 216.
The Court of Appeal observed that the Trial Judge had available to him the testimonies of the Appellant and her husband and a DVD taken of the state of the apartment. It was apparent that the evidence of these persons showed that the apartment was not in a state of cleanliness.
The evidence of the cleaner engaged by the Respondent was noted to be vague and the evidence of the Respondent’s representative lacked credibility.
The Appellant and other witnesses said that they had not noticed the needle on the stairs during the period which they had occupied the apartment.
His Honour Justice Muir JA found that based on the weight of evidence presented, the cleaners engaged by the Respondents did not follow the standard procedure of cleaning that premises. It was held that there was an implied contractual duty of care between the Appellant and the Respondent that the apartment was safe for the purpose of residing. That duty of care owed to the contractual entrants was consistent with the authority of Watsons v. George1.
Justice Muir JA determined that the cleaners engaged by the Respondents had not undertaken a cleaning of the premises in the conventional way. The evidence from the Appellant, her husband and the DVD was inconsistent with the cleaners’ evidence. This was supported by the Primary Judge’s findings of the credibility of the Appellant and her husband and the reservation about the evidence of the Respondent.
His Honour Justice Muir found that Section 11 of the Civil Liability Act 2003 (Qld) applied. His Honour determined that “unless the Defendant’s actual conduct is shown to be a necessary condition of the Plaintiff’s injury the Plaintiff’s claim will not succeed… A Plaintiff must show on the balance of probabilities that the action or conduct of the Defendant was a necessary condition of the occurrence of the harm in respect of which the Plaintiff claims damages.”
His Honour went on to say that the practical or commonsense concept of causation discussed by Deane J in March v. Stramare (E & MH) Pty Ltd was satisfied on the facts of this case. Justice Muir JA held that the Respondent’s conduct did not merely increase the risk of harm but the failure to render the apartment “as safe as the exercise of reasonable care and skill on the part of anyone [might] make [it], left it in a filthy condition.” It was the direct result of that condition that the needle was obscured by the Appellant’s vision when cleaning the step on which it was positioned.
His Honour said there was no good reason to conclude that a contract cleaner would not have followed the procedure similar to one as described and picked up the presence of a needle and removed it and leave the apartment in a clean, tidy and habitable condition.
His Honour further stated that there was a foreseeable risk of injury to the Appellant to which the Respondent knew or ought to have known. The Appellant risked being cut by, impaled on or falling as a result of any unremoved objects. It was also foreseeable that a person injured physically might, in consequence, suffer psychiatric impairment.
It is apparent that the Respondent was aware that the premises were not clean given their actions in cleaning the premises after the first complaint. When the Appellant notified the Respondent that the premises was still not to her satisfaction, and that she was going to clean herself, it clearly showed that there were ongoing issues which had not been addressed. The subsequent injuries sustained by the Appellant were a foreseeable risk.
The result to the Appellant is significant in that no doubt orders will be made for indemnity costs of the trail given her Formal Offer was for $200,000.00 plus costs and then subsequently $300,000.00 plus costs.
The acceptance by the Trial Judge of the Appellant’s credibility and the DVD evidence showing the state of the premises clearly showed that the cleaner had not properly cleaned the premises as required.
The decision of the Court of Appeal was a correct, clean sweep of the matter.