Wright v KB Nut Holdings Pty Ltd - [2013] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v KB Nut Holdings Pty Ltd [2013] QCA 66

PARTIES:

ROBYN JOY WRIGHT
(appellant)
v
KB NUT HOLDINGS PTY LTD as trustee for the KERRIE-ANN STEVENSON FAMILY TRUST (ACN 127 054 872) trading as ‘BONAPARTES SERVICED APARTMENTS’
(respondent)

FILE NO/S:

Appeal No 7435 of 2012
DC No 3367 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2013

JUDGES:

Muir JA and Margaret Wilson and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     The appeal be allowed.

2.     The judgment given on 23 July 2012 be set aside and that in lieu thereof it be ordered that the respondent pay the appellant $494,759.38 together with interest thereon from 23 July 2012 at the rate of 10 per cent per annum.

3.     The parties file and exchange written submissions on costs within 7 days of the date hereof unless they have reached agreement within that time as to the appropriate costs order and have informed the Registry of it.

CATCHWORDS:

TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – WHERE ENTRY PURSUANT TO CONTRACT – where the appellant and the respondent entered into a contract under which the respondent agreed to let the appellant and her family reside in serviced apartments for reward – where the appellant tendered DVD evidence of the filthy state of the apartment – where the internal stairs were dirty and sticky and had a build up of dust, hair and fluff where the risers joined the treads – where the appellant suffered a needle stick injury which caused her psychiatric impairment while cleaning the stairs – where the appellant claimed damages for breach of contract, negligence and for breach of a contractual term implied pursuant to s 74(1) of the Trade Practices Act 1974 (Cth) – where the primary judge held that the appellant’s cleaning of the stairs was foreseeable – where the primary judge found that it was probable that the standard cleaning procedure had been followed – where the primary judge found that, as the needle was not protruding, the standard cleaning procedure would not have led to any observation of the needle – where the primary judge held that the risk of harm to the appellant was not foreseeable or, in the alternative, that a reasonable person in the respondent’s position would not have taken any more precautions and there was a low probability of harm – where the primary judge gave judgment in favour of the respondent – where the respondent was under a duty to ensure that the apartment was as safe for the purposes of residing in as reasonable care and skill on the part of anyone can make it – where the respondent argued that the ‘but for test’ imported by s 11 of the Civil Liability…

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: [2013] QCA 66
Decision Date: 2 April 2013

CaseChat Overview and Summary

The appeal in Wright v KB Nut Holdings Pty Ltd involved the appellant, who leased serviced apartments from the respondent, suffering a needle stick injury during the cleaning of the premises. The appellant sought damages for breach of contract, negligence, and for breach of a term implied by the Trade Practices Act 1974 (Cth). The primary judge held that the respondent was not negligent, finding that the risk of harm was not foreseeable, or that a reasonable person would not have taken additional precautions, and that the probability of harm was low. The appeal was centred on the primary judge’s findings concerning the foreseeability of the risk and the adequacy of the respondent’s precautions.

The key legal issue in the appeal was whether the primary judge erred in finding that the risk of harm to the appellant was not foreseeable, or that a reasonable person in the respondent’s position would not have taken any more precautions, given the filthy state of the premises. The Court had to consider the primary judge’s acceptance of the appellant’s evidence concerning the state of the apartment, which was corroborated by her husband’s testimony and DVD evidence, and the lack of recollection among the cleaners. The appeal questioned whether the primary judge’s findings were consistent with the evidence and whether there was a palpable misuse of the advantage of a trial judge.

The Court held that the appeal should be allowed as the primary judge’s findings were inconsistent with the evidence. The appellant's evidence about the build-up of detritus on the stairs was not sufficiently considered, leading to an incorrect conclusion about the foreseeability of the risk and the adequacy of the respondent’s precautions. The Court found that the primary judge’s acceptance of the appellant’s evidence about the filthy state of the apartment was irreconcilable with the finding that the standard cleaning procedure was likely followed. Consequently, the Court set aside the judgment and ordered the respondent to pay the appellant damages along with interest. The parties were directed to file and exchange written submissions on costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The judgment given on 23 July 2012 be set aside and that in lieu thereof it be ordered that the respondent pay the appellant $494,759.38 together with interest thereon from 23 July 2012 at the rate of 10 per cent per annum.

3. The parties file and exchange written submissions on costs within 7 days of the date hereof unless they have reached agreement within that time as to the appropriate costs order and have informed the Registry of it.

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:	Wright v KB Nut Holdings Pty Ltd [2013] QCA 66
PARTIES:	ROBYN JOY WRIGHT (appellant) v KB NUT HOLDINGS PTY LTD as trustee for the KERRIE-ANN STEVENSON FAMILY TRUST (ACN 127 054 872) trading as ‘BONAPARTES SERVICED APARTMENTS’ (respondent)
FILE NO/S:	Appeal No 7435 of 2012 DC No 3367 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2013
JUDGES:	Muir JA and Margaret Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The judgment given on 23 July 2012 be set aside and that in lieu thereof it be ordered that the respondent pay the appellant $494,759.38 together with interest thereon from 23 July 2012 at the rate of 10 per cent per annum. 3. The parties file and exchange written submissions on costs within 7 days of the date hereof unless they have reached agreement within that time as to the appropriate costs order and have informed the Registry of it.
CATCHWORDS:	TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – WHERE ENTRY PURSUANT TO CONTRACT – where the appellant and the respondent entered into a contract under which the respondent agreed to let the appellant and her family reside in serviced apartments for reward – where the appellant tendered DVD evidence of the filthy state of the apartment – where the internal stairs were dirty and sticky and had a build up of dust, hair and fluff where the risers joined the treads – where the appellant suffered a needle stick injury which caused her psychiatric impairment while cleaning the stairs – where the appellant claimed damages for breach of contract, negligence and for breach of a contractual term implied pursuant to s 74(1) of the Trade Practices Act 1974 (Cth) – where the primary judge held that the appellant’s cleaning of the stairs was foreseeable – where the primary judge found that it was probable that the standard cleaning procedure had been followed – where the primary judge found that, as the needle was not protruding, the standard cleaning procedure would not have led to any observation of the needle – where the primary judge held that the risk of harm to the appellant was not foreseeable or, in the alternative, that a reasonable person in the respondent’s position would not have taken any more precautions and there was a low probability of harm – where the primary judge gave judgment in favour of the respondent – where the respondent was under a duty to ensure that the apartment was as safe for the purposes of residing in as reasonable care and skill on the part of anyone can make it – where the respondent argued that the ‘but for test’ imported by s 11 of the Civil Liability…