Smith v Body Corporate for Professional Suites - [2012] QDC 49

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2012] QDC 49

PARTIES:

JODIE SMITH

v

BODY CORPORATE FOR PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487

FILE NO/S:

3873 OF 2004

DIVISION:

Civil

PROCEEDING:

Claim for damages for personal injuries

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5 - 7, 12 March 2012

JUDGE:

Robin QC DCJ

ORDER:

Claim dismissed

CATCHWORDS:

Negligence – claim against occupier of commercial building in central Brisbane – plaintiff employee of a tenant – after hours following staff Christmas party and socialising at a night club plaintiff (intent on entering) came into contact with a glass panel alongside main entry doors while fumbling for the key – glass shattered and she fell through it, suffering severe lacerations – glass panel complied with Australian Standards current when constructed in 1971, not with new standards – defendant allegedly negligent in failing to upgrade to new standard (requiring safety glass in the application) or conduct a safety audit – contention defendant ought to have so proceeded when relevant area of building was refurbished only months before accident to replace glass doors using safety glass – whether plaintiff guilty of contributory negligence because intoxicated and fell into glass panel as opposed to leaning on it for support – damages assessed – whether interest should be awarded for a reduced period on account of delay – whether Griffith v Kerkemeyer damages available for “emotional support”.

COUNSEL:

Mr K. Wilson SC and Dr G. J. Cross for the plaintiff

Mr R. C. Morton for the defendant

SOLICITORS:

Colin Patino & Company for the plaintiff

Moray & Agnew for the defendant

The plaintiff was born on 9 April 1972. On 28 October 2004, not long before the limitation period expired, she commenced this claim for damages for personal injuries suffered by her in an accident that occurred on 21 December 2001 (upon the common property of a community title scheme at 138 Albert Street, Brisbane). The defendant admits having statutory obligations to act reasonably in carrying out its functions under the Body Corporate and Community Management Act 1997 s 87(1), to administer, manage and control the common property and to maintain the common property in good condition for the benefit of the owners of the lots, but asserts that such considerations “are irrelevant to any duty owed by the defendant to the plaintiff and create no right in the plaintiff”. “While it is true that obligations under statutory or other enactments have relevance to determine the existence and scope of a duty, it is necessary to exercise caution in translating [such] obligations … into a duty of care at common law.” (Leighton Contractors Pty Ltd v Fox [2009] HCA 35 at paragraph 49).

The plaintiff suffered severe lacerations to her face, neck, arms and torso when cut by shards of a large glass panel forming a wall of the entrance to the defendant’s building, given that the swinging entrance…

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: [2012] QDC 49
Decision Date: 30 March 2012

CaseChat Overview and Summary

In Smith v Body Corporate for Professional Suites, the plaintiff, an employee of a tenant in a commercial building in central Brisbane, sued the defendant, the body corporate responsible for the building's maintenance, for damages resulting from an accident. After a staff Christmas party and socialising at a nightclub, the plaintiff attempted to enter the building but came into contact with a glass panel adjacent to the main entry doors. The glass shattered, causing her to fall through and suffer severe lacerations. The glass panel, installed in 1971, complied with the Australian Standards in force at the time but did not meet the new standards that came into effect months before the incident. The plaintiff alleged that the defendant was negligent in not upgrading the glass panel to the new standard or conducting a safety audit, especially since the area of the building had been refurbished using safety glass only months before the accident.

The court had to determine whether the defendant was negligent in not upgrading the glass panel to meet the new safety standards and whether the plaintiff's intoxication contributed to the accident. The court also had to consider whether the plaintiff was entitled to damages for emotional support and whether interest should be awarded for a reduced period on account of the delay in bringing the proceedings.

The court found that the plaintiff was contributorily negligent due to her intoxication and her decision to attempt entry into the building without proper support. As a result, her claim was dismissed. The court held that the plaintiff's intoxication and her decision to attempt entry into the building contributed to her injuries. Additionally, the court found that the defendant was not negligent in failing to upgrade the glass panel, as it had complied with the relevant standards at the time of its installation. The court also held that damages for emotional support were not recoverable in this case. Finally, the court determined that interest should be awarded for the reduced period on account of the delay in bringing the proceedings.

Orders

Orders of the court

Claim dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2012] QDC 49
PARTIES:	JODIE SMITH v BODY CORPORATE FOR PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487
FILE NO/S:	3873 OF 2004
DIVISION:	Civil
PROCEEDING:	Claim for damages for personal injuries
ORIGINATING COURT:	Brisbane
DELIVERED ON:	30 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	5 - 7, 12 March 2012
JUDGE:	Robin QC DCJ
ORDER:	Claim dismissed
CATCHWORDS:	Negligence – claim against occupier of commercial building in central Brisbane – plaintiff employee of a tenant – after hours following staff Christmas party and socialising at a night club plaintiff (intent on entering) came into contact with a glass panel alongside main entry doors while fumbling for the key – glass shattered and she fell through it, suffering severe lacerations – glass panel complied with Australian Standards current when constructed in 1971, not with new standards – defendant allegedly negligent in failing to upgrade to new standard (requiring safety glass in the application) or conduct a safety audit – contention defendant ought to have so proceeded when relevant area of building was refurbished only months before accident to replace glass doors using safety glass – whether plaintiff guilty of contributory negligence because intoxicated and fell into glass panel as opposed to leaning on it for support – damages assessed – whether interest should be awarded for a reduced period on account of delay – whether Griffith v Kerkemeyer damages available for “emotional support”.
COUNSEL:	Mr K. Wilson SC and Dr G. J. Cross for the plaintiff Mr R. C. Morton for the defendant
SOLICITORS:	Colin Patino & Company for the plaintiff Moray & Agnew for the defendant