Spackman v Stevens - [2010] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

Spackman v Stevens & Anor [2010] QDC 118

PARTIES:

TRACEY LOUISE SPACKMAN
(plaintiff)
v
BARRY JOHN STEVENS & PATRICIA LORRAINE STEVENS
(first defendants)
and
DAVID JAMES
(second defendant)

FILE NO/S:

Southport 32 of 2008

DIVISION:

Original civil jurisdiction

PROCEEDING:

Claim for damages for personal injury

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

31 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24, 25 February 2010

JUDGE:

Robin QC DCJ

ORDER:

1.          Judgment for plaintiff against both defendants.

2.          Second defendant to indemnify first defendants.

3.          The court will hear from the parties as to the form of orders to be made

CATCHWORDS:

Civil Liability Act 2003, s 2, s 7, s 59, s 62
Civil Liability Regulation 2003, schedule 4
Personal Injuries Proceedings Act 2002
Residential Tenancies Act 1994, s 103, s 192

Emery v Foot [1997] QCA 404
Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267
Gove v Black [2006] WASC 298
Hackshaw v Shaw (1984) 155 CLR 614
Kneuppel v Zarpas [2004] SADC 162
Kriz v King [2006] QCA 351
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Palmer v Finnegan (2010) QSC 86
Short v Barrett [1990] NSWCA 164
Xu v Thurgood [2008] QSC 288

Plaintiff wife of first defendants’ tenant claims damages for negligence against them and second defendant carpenter based on defective condition of timber swimming pool deck – issue whether complaints about the deck and its safety should have alerted defendants to the need to do something about the particular board that failed, causing injury

COUNSEL:

M Pope for plaintiff

K Howe for first defendants

The second defendant appeared on his own behalf

SOLICITORS:

Derek Geddes for plaintiff

DLA Phillips Fox for first defendants

The second defendant appeared on his own behalf

The plaintiff claims damages for personal injuries suffered in an incident that happened on or about 18 January 2005 on the timber pool deck of a residence which her husband rented from the first defendants. The second defendant constructed the deck in about 2001 and became involved in attending to its condition in the weeks or months preceding the incident.

The claim and statement of claim were filed on 18 January 2008, the latter recording the court’s granting leave on that day to commence a proceeding notwithstanding non-compliance with the Civil Liability Act 2003 and the Personal Injuries Proceedings Act 2002. That leave was necessary to protect the plaintiff against “limitations” problems. The brief statement of claim contains the following:

“2.At about 1.30 pm on 18 January 2005 whilst the Plaintiff was on the timber deck, she heard and felt a timber crack under her, it sprang back catching her foot, thereby twisting and wrenching her knee causing her to suffer injury loss and damage.

9.Injury loss and damage was caused by the negligence of the First Defendants, particulars of which are as follows:-
(a)After complaints being made about the safety of the timber decking, failed to properly…

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.

Continue reading Spackman v Stevens

Details

AGLC: Spackman v Stevens [2010] QDC 118
Case: [2010] QDC 118
Decision Date: 31 March 2010

CaseChat Overview and Summary

In the matter of Spackman v Stevens, the plaintiff, who is the wife of the tenants of the first defendants, has brought a claim for damages for negligence against both the first and second defendants. The first defendants are the owners of the property where the plaintiff sustained injuries due to a defective timber swimming pool deck. The second defendant is a carpenter who was involved in the construction of the deck. The plaintiff alleges that the deck's condition was defective and that the defendants were negligent in not taking appropriate action to rectify the issue, leading to the plaintiff's injuries.

The central legal issue the court had to determine was whether the complaints made by the plaintiff about the deck's condition and its safety should have alerted the defendants to the need to take action regarding the particular board that eventually failed, causing injury. The court needed to assess whether the defendants owed a duty of care to the plaintiff and whether they breached that duty by failing to address the identified issues with the deck. Additionally, the court had to consider the extent to which the second defendant's role in constructing the deck contributed to the defect and whether this constituted negligence.

The court found that the first defendants, as property owners, owed a duty of care to the plaintiff as their tenant's wife, given the foreseeable risk of injury from the defective deck. The court determined that the defendants were aware of the complaints about the deck and the potential safety issues, yet they failed to take appropriate action to rectify the situation. The court held that the defendants' inaction constituted a breach of their duty of care, leading to the plaintiff's injuries. Furthermore, the court found the second defendant liable for negligence in constructing the deck in a manner that contributed to the defect. The court ordered that the second defendant indemnify the first defendants for any liability to the plaintiff.

Orders

Orders of the court

1. Judgment for plaintiff against both defendants.

2. Second defendant to indemnify first defendants.

3. The court will hear from the parties as to the form of orders to be made

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Spackman v Stevens & Anor [2010] QDC 118
PARTIES:	TRACEY LOUISE SPACKMAN (plaintiff) v BARRY JOHN STEVENS & PATRICIA LORRAINE STEVENS (first defendants) and DAVID JAMES (second defendant)
FILE NO/S:	Southport 32 of 2008
DIVISION:	Original civil jurisdiction
PROCEEDING:	Claim for damages for personal injury
ORIGINATING COURT:	Southport District Court
DELIVERED ON:	31 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24, 25 February 2010
JUDGE:	Robin QC DCJ
ORDER:	1. Judgment for plaintiff against both defendants. 2. Second defendant to indemnify first defendants. 3. The court will hear from the parties as to the form of orders to be made
CATCHWORDS:	Civil Liability Act 2003, s 2, s 7, s 59, s 62 Civil Liability Regulation 2003, schedule 4 Personal Injuries Proceedings Act 2002 Residential Tenancies Act 1994, s 103, s 192 Emery v Foot [1997] QCA 404 Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 Gove v Black [2006] WASC 298 Hackshaw v Shaw (1984) 155 CLR 614 Kneuppel v Zarpas [2004] SADC 162 Kriz v King [2006] QCA 351 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Palmer v Finnegan (2010) QSC 86 Short v Barrett [1990] NSWCA 164 Xu v Thurgood [2008] QSC 288 Plaintiff wife of first defendants’ tenant claims damages for negligence against them and second defendant carpenter based on defective condition of timber swimming pool deck – issue whether complaints about the deck and its safety should have alerted defendants to the need to do something about the particular board that failed, causing injury
COUNSEL:	M Pope for plaintiff K Howe for first defendants The second defendant appeared on his own behalf
SOLICITORS:	Derek Geddes for plaintiff DLA Phillips Fox for first defendants The second defendant appeared on his own behalf