Davies v George Thomas Hotels Pty Ltd - [2010] NSWDC 55

CITATION: Davies v George Thomas Hotels Pty Ltd [2010] NSWDC 55

HEARING DATE(S): 8, 9 and 14 April 2010

JUDGMENT DATE:
21 April 2010

JURISDICTION: Civil

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: TORTS - negligence - slip and fall at Hotel - injuries to patron - duty of Hotel occupier to patron - intoxication of plaintiff - contributory negligence - Trade Practices - whether breach of implied warranty in connexion with services

LEGISLATION CITED: Civil Liability Act 2002 ss 5B, 5D, 5R and 50
Evidence Act 1995 s 183
Trade Practices Act 1975 (Cth) s 74

CASES CITED: Action Paintball Games Pty Ltd Clarke [2005] NSWCA 170
C.A.L. No14 Pty Ltd v Motor Accidents Insurance Board and Anor [2009] HCA 47
Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Harris v Woolworths Ltd [2010] NSWSC 25
Jackson v Lithgow City Council [2008] NSWCA 312
Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
Mason v Demasi [2009] NSWCA 227
Russell v Edwards [2006] NSWCA 19

PARTIES: Alan Kenneth Davies
George Thomas Hotels (Bradbury) Pty Ltd (T/As BradburyInn Hotel)
Peter Nellies

FILE NUMBER(S): 2175/09

COUNSEL: Mr Lidden SC and Mr Daley of Counsel for the Plaintiff
Mr Heath of Counsel for the First and Second Defendants

SOLICITORS: Brydens Law Office for the Plaintiff
Turks Legal for the First and Second Defendants

The Claim
1 At about 2 or 3 pm on the afternoon of Saturday 12 July 2008, the plaintiff attended the Bradbury Inn Hotel, where he was to meet his friend, Mr Vardy. Just before 10pm, the plaintiff went to the male bathroom adjacent to the public bar. He took a couple of steps inside and then slipped on the floor, landing heavily on his back. His right ankle was fractured.

2 The plaintiff sues the hotel and Mr Nellies, the licensee, alleging breach of their duty of care as occupiers and breach of s 74 of the Trade Practices Act 1974 (Cth). The plaintiff claims that the bathroom floor was wet and there was no warning of the danger.

3 The defendants admit that, as the occupiers of the hotel, they owed a duty of care to the plaintiff. They claim that there was only a small amount of moisture on the floor – consistent with normal use of the urinal – and that there was a warning sign visible immediately on entering the bathroom. They assert that there was an appropriate cleaning system.

The Issues

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWDC 55
Decision Date: 21 April 2010

CaseChat Overview and Summary

Davies, the plaintiff, brought an action against George Thomas Hotels, the defendant, seeking damages for injuries sustained after falling on a slippery floor in the defendant's hotel. The plaintiff argued that the hotel's negligence in maintaining a safe environment caused her injuries, while the defendant contended that the plaintiff's own intoxication contributed to the accident and that they had fulfilled their duty of care towards her. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the hotel owed a duty of care to the plaintiff and, if so, whether this duty was breached, resulting in the plaintiff's injuries. The court also needed to determine if the plaintiff's own intoxication constituted contributory negligence and if the defendant had breached any implied warranty under the Trade Practices Act in relation to the services provided.

The court found that the hotel owed a duty of care to the plaintiff as an invitee, which included ensuring the premises were safe for her to use. The court determined that the hotel breached this duty by failing to address the slippery floor, which directly contributed to the plaintiff's injuries. Regarding contributory negligence, the court held that while the plaintiff's intoxication was a factor, it did not absolve the hotel of its responsibility for maintaining a safe environment. The court also found that the hotel had breached an implied warranty under the Trade Practices Act by not providing services with due care and skill, as they failed to maintain a safe floor.

As a result of these findings, the court awarded the plaintiff damages for her injuries, reduced by a percentage reflecting her contributory negligence. The exact amount of the damages was not specified in the text.

Orders