Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment
Appeal Determined (QCA)

Wright v K B Nut Holdings Pty Ltd[2012] QDC 202Dorney DCJ
Add to List

Wright v K B Nut Holdings Pty Ltd[2012] QDC 202

DISTRICT COURT OF QUEENSLAND

CITATION:	Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as “Bonapartes Serviced Apartments” [2012] QDC 202
PARTIES:	ROBYN JOY WRIGHT (Plaintiff) v K B NUT HOLDINGS PTY LTD (AS TRUSTEE FOR THE KERRIE-ANN STEVENSON FAMILY TRUST) (ACN 127 054 872), TRADING AS “BONAPARTES SERVICED APARTMENTS” (Defendant)
FILE NO/S:	D3367/2011
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	Brisbane
DELIVERED ON:	23 July 2012
DELIVERED AT:	Brisbane
HEARING DATES:	12, 13 and 14 June 2012
JUDGE:	Dorney QC, DCJ
ORDERS:	Judgment for the defendant against the plaintiff. All parties have leave to file, and serve, written submissions on costs by 4:00pm on 30 July 2012, if not otherwise agreed.
CATCHWORDS:	Contract for short term accommodation, formed over internet – how negligence, breach of common law implied warranty and breach of statutorily implied warranty interact – whether duty non-delegable and/or vicarious liability applicable – “needle stick” injury – foreseeability of, and remoteness of, damage concerning psychiatric injury – extent of prospects of improvement following end of litigation Civil Liability Act 2003 (Qld) ss 9, 10, 11 and 12 Civil Liability Regulation 2003 (Qld) Schedules 3, 4, 5 and 6 Competition and Consumer Act 2010 (Cth) Schedule 2, ss 60, 61 Trade Practices Act 1974 (Cth) ss 74, 74(1), 74(2A) Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Coppo & Ors v Banalasta Oil Plantation Ltd & Ors; Borg v Pawski & Ors [2005] QCA 96 Downunder Rock Cafe Pty Ltd v Roberts (1998) Aust Torts Reports 81-481 Gharibian v Propix Pty Ltd [2007] NSWCA 151 Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 Gray v Queensland Housing Commission [2004] QSC 276 Hollier v Sutcliffe [2010] NSWSC 279 Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 201 ALR 70; (2003) 77 ALJR 1934 Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 Jones v Bartlett (2000) 205 CLR 166 Kavanagh v Akhtar (1998) 45 NSWLR 588 Kondis v State Transport Authority (1984) 154 CLR 672 Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279 Leichhardt Municipal Council v Montgomery [2007] HCA 6 Lisle v Bruce [2002] 2 Qd R 168 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 Maclenan v Segar [1917] 2 KB 325 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 New South Wales v Fahy (2007) 232 CLR 486 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Pollard v Wilson [2010] NSWCA 68 Sakoua v Williams (2005) 64 NSWLR 588 Stannus v Graham (1994) Aust Torts Reports 81-293 Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 285 ALR 420; (2012) 86 ALJR 267 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 Tame v New South Wales (2002) 211 CLR 317 Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 Watson v George (1953) 89 CLR 409 Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL:	J P Kimmins for the Plaintiff R W Morgan for the Defendant
SOLICITORS:	Shine Lawyers for the Plaintiff HBM Lawyers for the Defendant

Introduction

[1]
On 20 April 2009 the plaintiff (a female then aged 43) and her family were residing in Apartment 33 in premises known as the Bonapartes Serviced Apartments situated at 23 Agnes Street, Spring Hill, Brisbane in the State of Queensland. The family was there, according to the admissions made in the pleadings, pursuant to a “contract whereby the defendant agreed to let the plaintiff and her family reside in Apartment 33 … for reward” (“Contract”).

[2]
The defendant was, as is also admitted on the pleadings, the “manager” of the Bonapartes Serviced Apartments.

[3]
On that date, while the plaintiff was herself cleaning the internal wooden stairs in Apartment 33, she injured herself in the process of such cleaning when, although wearing rubber gloves at the time, her right index finger was penetrated by a needle that had, at some indeterminate time before, become lodged in the left hand side back crease of the particular step. This “needle stick” injury has led to a consequential psychiatric injury. For both of these injuries the plaintiff claims damages.

[4]
While it was in contest between the parties as to what type of needle it was, I have concluded that it was a hypodermic needle that was no longer attached to either the syringe or the plastic collar that would have all originally formed part of the needle apparatus. I accept that it was about 2 cm in length.

[5]
In terms of liability, both negligence and breach of an implied term of the Contract were relied on, as well as terms implied in that Contract pursuant to either s 74(1) of the Trade Practices Act 1974 (Cth) (“TPA”) or s 60 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and, further, s 61 of Schedule 2 of the Australian Consumer Law. No contributory negligence was pleaded. The issue of damages was strongly contested. In the end, I have held that no liability has been established.

[6]
All submissions were in writing and the final written Submission was received by the Court on 25 June 2012.

Background

[7]
At the beginning of the trial, Mr Morgan, counsel for the defendant, sought leave to amend the defendant’s Further Amended Defence. This was to withdraw the “admissions” of certain allegations in the Further Amended Statement of Claim regarding the content of the implied terms of the Contract and the content of the duty of care.

[8]
Upon Mr Kimmins, counsel for the plaintiff, accepting that there was no factual background with which the plaintiff was conversant (taking into account the admissions already made) which would be put in jeopardy by any foreshadowed withdrawal, I allowed the amendments. They are substantially contained in the new paragraphs 3AA, 3AB and 3BB of the Second Further Amended Defence.

[9]
The actual booking of Apartment 33, asserted by the plaintiff and not put in contest by the defendant, was through the Wotif website. No further evidence was led at the trial of any express terms of the Contract; not even who the legal entity was which, or who, was named on the website as another potential contracting party with the plaintiff.

[10]
As a consequence, I am simply left with the allegations in the pleadings.

[11]
As joined in the pleadings, the defendant’s only admissions on the contractual front are to the existence of the Contract and being the manager. But the defendant put in issue that it was “responsible” for the cleaning and upkeep of Apartment 33, alleging that Mr Gavin Bowen and Mrs Cheryl Bowen, as independent cleaning contractors, were the persons so responsible. The natural conclusion, therefore, must be that the pleaded duties that can arise may be at least those of a landlord (given the nature of the contract admitted) to a (holiday) tenant (particularly when paragraph 4 of the Further Amended Statement of Claim alleges that the Apartment was one that was “let”), if not those owed by an occupier (given the level of control here arising from the management) to a contractual entrant (if applicable at all), apart from any obligation or duty arising under statute.

[12]
Although r 149(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) states that, in a pleading, a party “may” plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point, as the Court of Appeal in Coppo & Ors v Banalasta Oil Plantation Ltd & Ors; Borg v Pawski & Ors^[1] concluded, that provision does not require the party to so plead, the purpose of the rule being primarily to provide notice of the case to answer: at [27]-[28].

[13]
Although each party has pleaded, by allegation or admission, statements as to the content of the duty of care and the content of such common law or statutorily implied terms, I will turn to an analysis of the law as to what such content should be, given the absence – already noted - of any express term in the Contract (relating to liability) being relied upon. The law to be applied is for the Court to determine, subject to the causes of action pleaded.

[14]
A further issue, originally concerning the contended inapplicability of either the TPA or the Australian Consumer Law, has been disposed of by both parties agreeing that the former applied.

Landlord’s common law duty of care

[15]
Any duty of care in the circumstances of a case concerning a landlord which arises at common law must be derived for the consideration of Northern Sandblasting Pty Ltd v Harris^[2], as clarified by Jones v Bartlett.^[3] As stated by Sackville AJA for the New South Wales Court of Appeal in Loose Fit Pty Ltd v Marshbaum,^[4] the later High Court decision held that a landlord of “residential” premises owes a duty of care to the tenant and to the tenant’s family members and visitors, equally: at [85]. But, as he further observed, the members of a court in Jones differed as to the content of the duty in the case of a lease of residential premises. He noted that the different approaches taken by the 6 majority judges were conveniently summarised by Mason P, with whom Brownie AJA agreed, in Sakoua v Williams^[5] to the effect that with respect to the condition of the premises at the “inception” of the letting, 3 favoured a duty expressed in terms of taking reasonable care to avoid foreseeable risk of injury (leaving the practical content of the duty to be covered by the circumstances of the case) and 2 favoured slightly narrower formulations of the duty, being a duty either to put and keep the premises in a state of safe repair, or to take reasonable care to avoid foreseeable risk of injury from defects of which the landlord was on notice, or of which (by appropriate inspection) the landlord would reasonably become aware: at [86].

[16]
In Loose Fit, Sackville AJA went on to note that in Sakoua, with relevant citation, it was held that Jones makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them but, rather, in general terms, the duty of a landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk: at [87]. He, further, in reference to the judgment of Gummow and Hayne JJ in Jones, in making clear that their more detailed analysis of the duty of care owed was directed – as applicable here - to leases of “residential” premises, stressed that those High Court judges stated that the reasonableness of the steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched, the obligations the parties allocated inter se, and any specification of limited purposes to which the premises “be put”, noting that it will also be affected by the terms of “any applicable statutes”: at [89].

[17]
Lastly, as is also applicable here, Sackville AJA in Loose Fit stressed that it was necessary to take account of the relevant civil liability, or similar, legislation [which, here, would be the Civil Liability Act 2003 (Qld) (“CLA”)]: at [90].

[18]
Before leaving Jones, it is important to note that Gummow and Hayne JJ, in discussing the practical content of the duty, noted that where, ordinarily, the landlord will surrender occupation of the premises to the tenant, the content of any duty is likely to be less than that owed by an “owner-occupier who retains the ability to direct what is done upon, with, and to the premises”: at 215 [171]. The latter duty would, arguably, not apply here because of exclusive occupation (even despite the “servicing” of the Apartment); but, as discussed later, the content of the duty differs according to the exact circumstances. Expressed broadly, Gummow and Hayne JJ noted that the content of the landlord’s duty to the tenant will be conterminous with a requirement that the premises “be reasonably fit for the purposes for which they are let, namely, habitation as a domestic residence”: also at 215 [171]. With respect to the last principle, Gummow and Hayne JJ observed that premises will not be reasonably fit for the purposes for which they are let “where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury”, because the duty requires a landlord not to let premises that suffer defects which “the landlord knows or ought to know make the premises unsafe for the use to which they are to be put”: at 215-216 [173]. With respect to “dangerous defects”, Gummow and Hayne JJ noted that the duty with respect to them will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord then takes reasonable steps to remove them or make the premises safe: at 216 [173]. Quite importantly for the consideration here, they held that those conclusions do not amount to a proposition that the ordinary use of the premises for the purpose for which they were let “must not cause injury”, but rather whether the landlord has acted in a manner reasonably to remove the risk: also at 216 [173]. See, also, Chesterman J (as he then was), interpreting the authorities similarly, in Gray v Queensland Housing Commission.^[6]

[19]
If the correct characterisation of the presence of the hypodermic needle in the place where it caused the plaintiff injury could be expressed as being the existence of a dangerous defect – and, given the examples used by them^[7], it could be an exact analogy - it should be noted that Gummow and Hayne JJ in Jones stated, with reference to earlier authority, that, where the existence of a dangerous defect was merely a possibility (albeit one later realised when the plaintiff was injured), the steps a landlord was required to undertake were only those that will be taken in the course of “ordinary reasonable human conduct”, adding that the matter is an exercise of hindsight and that the identification of the requisite steps will depend, amongst other things, upon: whether an ordinary person in the landlord’s position would or should have known that there was any risk; whether the person would or should have known of steps that could be taken in response to that; and the reasonableness of taking such steps: at 220 [186]. Even if it were not to be so characterised, the presence of a needle such as the one here should lead to a similar approach. As they later addressed in New South Wales v Fahy^[8], it is wrong to focus exclusively upon the way in which the particular injury of which the plaintiff complains came about: at 505-506 [58].

[20]
It would be remiss in a case like this not to take one final observation from the judgment of Gummow and Hayne JJ in Jones concerning the limited ambit of the content of the relevant duty. They concluded that the duty is “not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects” and it is “not a duty to guarantee that the premises are safe as can reasonably be made” (emphasis added): at 221 [193].

[21]
It was recognised, also, by Gummow and Hayne in the particular circumstances considered in Jones that it may be necessary in the circumstances of any particular case to consider whether the duty cast on the landlord was delegable, referring to Kondis v State Transport Authority^[9]: at 228 [217]. As they analysed earlier, at least with respect to “defects”, a “better” approach is to look at the origin of the defect, particularly whether it arises from faulty design or workmanship (at whatever stage) or whether it arises from lack of repair, with the result that: first, those responsible for negligent design or building will ordinarily be liable as primary tortfeasors; secondly, liability for disrepair will ordinarily fall upon the party with the obligation to repair; and, thirdly, liability for negligent repair ordinarily will fall on the repairer: at 217 [177].

[22]
This issue of non-delegable duties and the further question of vicarious liability have both arisen in the recent times for consideration by the High Court.

[23]
As to vicarious liability, in Sweeney v Boylan Nominees Pty Ltd,^[10] the majority judgment - after noting that, more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another to do something that is of advantage to, and for the purposes of, that first person, yet it is clear that the bare fact that the second person’s actions were intended to benefit the first, or were undertaken to advance some purpose of the first person – held that such does not suffice to demonstrate that the first is vicariously liable for the conduct of the second: at 167 [13], per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. Where, as in Sweeney, the appellant was injured when a door of a refrigerator at a service station and convenience store came off and hit her on her head, and where the owners and operator had engaged an independent contractor to fix the problem, even though what that contractor did was for the benefit of the respondent and in an attempt to discharge contractual obligations, since what he did was not as an employee but as a principal pursuing his own business, or as an employee of his own company pursuing its business, there was no vicarious liability: at 173 [33].

[24]
With respect to delegability, as explained by Gleeson CJ in Leichhardt Municipal Council v Montgomery,^[11] it is a proposition of law concerning the nature or content of the duty of care enabling the plaintiff to outflank the general principle that the defendant is not vicariously responsible for the negligence of an independent contractor: at [6]. As he later noted, the concept of a non-delegable duty, elaborated as a duty to “ensure” that care is taken, may have a useful, if not entirely admirable, role in “some” cases involving the tort of negligence: at [27].

[25]
To the extent that it is necessary in this context of a general duty of care to consider the issue of vicarious liability and non-delegability, while the Bowens were clearly independent contractors pursuing their own business, on Gummow and Hayne JJ’s template (see [21] of these Reasons), the responsibility here was for “disrepair” (or its equivalent) such that the responsibility was non-delegable and, thereby, sidelined any vicarious liability.

Contractually implied terms

[26]
As stated by Brennan CJ in Northern Sandblasting, the content of the contractual duty arising from a contract between a landlord and a tenant does not necessarily translate into a duty of care in tort (at 337) or, undoubtedly, the converse. But the more fundamental problem is whether these principles apply at all when a letting, even of holiday premises, is undertaken in circumstances where the tenant’s family would indubitably, at least inferentially, claim a right to exclusive occupation for the duration of their stay, servicing of the Apartment apart. I intend to canvass the principles first; and address the problem later.

[27]
The majority judgment in Calin v Greater Union Organisation Pty Ltd^[12] was based upon an acceptance of Watson v George^[13] and the cases upon which it relied, including Maclenan v Segar.^[14] Both those identified earlier cases based the duty of care of “which they speak, firmly in contract”: per Brennan CJ in Northern Sandblasting at 337. According to Calin, an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose “impliedly warrants that the premises are safe for the purpose as the exercise of reasonable skill can make them”: at [38]. See, also, Hoyts Pty Ltd v Burns.^[15] As for the quality and extent of any duty to inspect, in Stannus v Graham^[16] Handley JA, with whom Meagher JA agreed, held that Watson supported the view that occupiers were under no duty to inspect the premises for the purpose of discovering “unknown and unsuspected defects”: at 61,564-5.

[28]
There is, nevertheless, an important additional aspect that arises from such implied contractual terms. As the majority judgment in Calin also acknowledged, such an implied warranty and the common law duty of care which might, in particular circumstances (such as existed in Calin), make no difference otherwise (provided the nature of the occupation was sufficiently recognised), “may have different consequences when it comes to questions of contributory negligence and the liability of independent contractors” (emphasis added): at [41]. That difference may explain the reference to a “higher duty” in Downunder Rock Cafe Pty Ltd v Roberts.^[17] In Calin, both questions just noted did not arise. In Watson, it is clear that the earlier expression that “it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants” was adopted by the High Court: see, for example, Fullagar J at 424. Significantly, Fullagar J also observed that it did not seem to him that the authorities warranted saying that the occupier must satisfy the Court that an unsafe condition of the premises was not due to anyone’s negligence: at 426. That the first of the principles still adheres is illustrated by the New South Wales Court of Appeal, in an obiter remark, in Pollard v Wilson.^[18]

[29]
In Loose Fit, when the Court’s attention turned to contractual matters, the Court found it unnecessary to address the contractual claim since the parties were content to approach the appeal on the basis that the effect of s 5A(1) of the Civil Liability Act 2002 (NSW) applies the same standard of care, whether a claim is brought in tort or in contract: at [81]. It is to be noted that s 5A of the New South Wales legislation differs in wording from s 4(1) of the CLA. Nevertheless, given the wide definition of “claim” in Schedule 2 (the Dictionary), it is unlikely that the latter would be interpreted any differently from the New South Wales provision. The slightly different terminology is also reflected by the wording used in describing the fundamental principles outlined in ss 9 and 11 of the CLA. But, with respect to the references to “duty” there, rather than to “negligence” in the New South Wales equivalent, the definition of “duty” in the Dictionary - being either a duty of care in tort or under contract that is concurrent and coextensive with one in tort, or another duty under statute or otherwise that is concurrent with such tortious or contractual duty - means that it would be extremely unlikely that the final effect of the two sets of provisions in the different states is any different in the absence of relevant express contractual terms.

[30]
What, then, happens if the CLA applies to any such implied contractual warranty in a case such as this?

[31]
The general consequence of Calin must be, when taken with the provisions of the CLA, that the actual determination of breach of duty does not change, subject to the antecedent conclusion that the duty is concurrent and coextensive, which itself depends upon the particular circumstances whereby the duty arises: see Calin at 40-41, noting that, in that case, it made no difference. The fact that the common law governing the liability of an occupier has not replaced the particular duty owed to the contractual entrants (see Burns^[19]) does not gainsay particular circumstances yielding a coextensive content of such duties, though hardly “concurrent”, particularly if, as here, the common law landlord duties are exclusive of those imposed on occupiers. That would leave any concurrence dependant on the non–replacing, non–coextensive common law duty of “ordinary” occupier/entrant relationships.

[32]
Further, does the liability for independent contractors also affect the application of the CLA, in so far as it concerns a claim in contract such as this? As for non-delegable duties and vicarious liability, the CLA does not have the equivalent of s 5Q of the Civil Liability Act 2002 (NSW), mandating that a breach of a non-delegable duty is to be determined as if the liability were a vicarious liability.

[33]
Since s 7 of the CLA, by s 7(5), states that the CLA is not a codification of the law relating to civil claims for damages for harm, the present outcome must be simply a reflection of the common law position. While this, on the face of it, may appear to be contrary to the concession made in Loose Fit, the differentiating issues of non-delegability and, or alternatively, vicarious liability were not raised there.

[34]
From Calin, I conclude that the duty must be held to be non-delegable. That is, any negligence by omission (or otherwise) in the cleaning by the engaged contractors, the Bowens, would be a matter which would not excuse any otherwise determined breach of duty on the defendant’s part, particularly one of inadequate inspection or the failure to inspect at all.

[35]
As for vicarious liability, similarly any failure to detect the presence of the hypodermic needle by the cleaning contractors would simply relate to an omission to discover and, in a case such as this, simply reflect, if it were to be relevant, a direct liability on the defendant’s part arising from its failure to ensure cleaning and inspection in a relevant way, consistent with the circumstances of the implied “warranty”.

[36]
This analysis would appear to lead to the conclusion that the contractually implied warranty mandates a duty which is neither concurrent nor co-extensive (except fortuitously) with any duty of care “in tort”. In consequence, ss 9, 10, 11 and 12 of the CLA would not be triggered for any breach of the implied contractual term in these circumstances, if applicable at all. And I hold that the term is not applicable because the relationship between the parties is not that of an occupier/entrant: see, as an instance, Watson itself (a case of a boarding house); or Maclenan (a hotel room).

Statutorily implied terms

[37]
Since both parties contend that the only relevant statutory provision is s 74(1) of the TPA – the plaintiff not pleading any aspect of s 74(2) - it is important to turn initially to the way in which there is an interplay between the CLA and that provision. Since this Contract was entered into after 13 July 2004 [the date of commencement of s 74(2A)], and since it is not disputed that the law of Queensland is the proper law of the contract, that latter provision’s application means that the CLA contains the legislative provisions to limit or preclude liability for the breach of the warranty contained in s 74, and the recovery for any liability, with the consequence that the TPA limitation provisions do not apply.

[38]
It is difficult to see that there is any preclusion of liability applicable through the application of the CLA, apart from the possible application of provisions such as ss 9 and 11 of the CLA to breach (but, of course, only if this duty “under statute” is “coextensive”); but it is certain that there are limits and preclusions on “recovery” for any such established liability arising from the CLA.

[39]
By s 74(1) of the TPA, there is an implied warranty that the services “will be rendered with due care and skill” and that any materials supplied in connection with those services “will be reasonably fit for the purpose for which they are supplied”. Since the defendant, by paragraph 3B of the Second Further Amended Defence admits that the plaintiff, by implication, made known to the defendant that she required the use of Apartment 33 for herself and her family to reside in, it is possibly incongruent that, by paragraph 3B(b) of the same pleading, it admits, relevantly, the implication of a term “that the apartment will be reasonably fit for the purpose of residing in”. A proper interpretation of “materials” in the context of “services” does not, to me at least, engage that latter part of the provision where the physical built attributes of this Apartment are concerned. This is despite the decisions of Gharibian v Propix Pty Ltd^[20] and Kovacevic v Holland Park Holdings Pty Ltd^[21] accepting that the parties could agree that a toboggan run (as well as the toboggan) and timber floor, respectively, was each a “material” of the relevant kind for the application of that provision. While they are distinguishable on their facts, and while it is at least arguable that the presence of the needle was not a defect in the “material”, I reach this conclusion not only because of the wide definition of “services” in s 4 of the TPA, especially in its reference to “real property” in the present context, but also because “materials” – though probably wider than “goods” – is unlikely to include fixtures which have become real property, unless expressly “included” (which they are not). By paragraph 3B(c) of the same pleading, the defendant alleges that the Apartment was so fit, but adds by paragraph 3B(d) that, if the plaintiff suffered such injuries in the circumstances she alleges, such injuries were suffered in circumstances “where she was not using the apartment to reside in”. For reasons analysed later, I reject that latter allegation of the defendant.

[40]
Given the absence of precedent concerning the interpretation of this Commonwealth provision in the circumstances of apartments for short term letting, it is difficult to see that its “duty” content (express terms apart) should be wider than that mandated by the contractual relationship of land-lord and tenant. It arguably would have the same consequence concerning independent contractors if only because the issue is simply one of whether the cleaning was inadequate in terms of the ambit of responsibility. Even if the stairs were to be held to be a “material”, McHugh J in Northern Sandblasting agreed with Gummow and Kirby JJ that a statutory provision to the effect that there was an implied obligation to provide a “dwelling-house in good tenantable repair and in a condition fit for human habitation” could not be construed as imposing an “absolute liability”, since neither its terms nor its context disclosed a “clear intention” to such effect, adding that, “for present purposes”, it was not different from a landlord’s common law duty of care: at 363. See, also, the reference earlier to almost identical terms used by Gummow and Hayne JJ in Jones: see [18] of these Reasons. Although arising in a different context, I accept the approach of Williams JA in Gration v C Gillan Investments Pty Ltd^[22] that, for instance, a statutory obligation to “ensure” a tenancy obligation would be “no less onerous” than that imposed in tort by the common law of Australia on the landlord at the start of the tenancy: at 272 [14]. I, therefore, do not accept that any breach is to be determined from the standpoint of imposition of “strict” liability: see the discussion in Gharibian at [62]. This outcome achieves coherence in the legal analysis, as warranties about “goods” have inhered for a considerable time in this strict format, whereas tenanted and occupied residences, while long subjected to statutory regimes, have never yet been visited with strict liability. Rather, I hold that the duty is equivalent to that imposed on a landlord but with the responsibility for independent contractors, following both from Calin-like circumstances and the conclusions reached already, which must apply generally for the landlord/tenant relationship. This concurrent contractual liability would appear to satisfy the “duty” and “duty of care” definitions in the CLA.

Foreseeability (for duty and breach)

[41]
The defendant contends that the psychiatric injury suffered here triggers a consideration of psychiatric harm with a particular emphasis on “normal fortitude” in determining duty and breach.

[42]
I hold that the proper approach is that outlined by Crennan J (although in dissent on the outcome) in Fahy. After noting that advances in medicine and psychiatry (which enable more reliable classification of psychiatric illness, greater understanding of aetiology, and better diagnosis) have been recognised in the courts, she observed that a majority in Tame v New South Wales^[23] rejected established control mechanisms as definite tests of liability, “although the factors which gave rise to them may still be relevant to questions of reasonableness”: at 557-558 [247]-[249]. She added that the majority stated that the criterion of reasonableness imposed at all levels of inquiry (i.e. to determine the existence and scope of a duty of care, as well as breach and damage) is an intrinsic control mechanism, so setting boundaries in respect of liability for psychiatric injury and anchoring those boundaries in principle, rather than allowing them to depend on arbitrary and indefensible distinctions: at 558 [249]. Thus, a claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by reference to general considerations, such as: the compatibility of a duty of care with, in context, any conflicting professional responsibilities; whether imposed by statute, or contract; and considerations of legal coherence: at 558 [250].

[43]
Since the CLA does not have the equivalent of s 32 of the New South Wales analogue, it is unnecessary to determine whether the notion of “normal fortitude” applies equally to consequential, as well as to “pure”, mental harm in the CLA context: see the discussion by Hulme J in Hollier v Sutcliffe.^[24]

[44]
In determining the actual application of the foreseeability test applicable to this consequential psychiatric injury, Tomisevic v Menzies Wagga Southern Pty Ltd^[24] is of little help on its facts. On such facts (established at first instance and not overturned on appeal), it was not a case of consequential injury and must be so approached. Thus, since it became unnecessary there to determine the issue that, if consequential, it was not reasonably foreseeable that a person would decompensate by way of a major psychiatric illness “as a result of having ingested faecal material”, it is not instructive here: at [14] and [25]. But using Tomisevic as instructive on general principle, the conclusions reached by Beazley JA, with whom Mason P and Pearlman AJA agreed, are consistent with Crennan J’s discussion in Fahy.^[26]

Credibility

[45]
Because so much of the plaintiff’s evidence, as with that of her major supporting witness, her husband, Mr Geordie William Wright, was challenged by the defendant, and since the evidence of Mr and Mrs Bowen, as contracted cleaners, along with Mr William Kallis, the de facto partner of Ms Kerrie-Ann Stevenson, both of whom were employees of the defendant (which had the management rights to the Bonapartes Serviced Apartments), was challenged by the plaintiff, it is necessary to make findings on credit before even attempting to reach conclusions about how the incident occurred and the reasons why the hypodermic needle went undetected until it was the cause of injury. Mr Kallis gave a compelling reason why the defendant did not call Ms Stevenson as a witness (namely, because of ill health).

[46]
Mrs Wright, whom I find had a compulsive urge to clean where the premises supplied for habitation were less clean “at home” than a hospital room – a conclusion shared, if somewhat reluctantly in the evidence he gave, by her husband - caused a video to be taken on 19 April 2009 (the second day of her occupation of Apartment 33) because she was so concerned about the state of “uncleanliness”. That video (converted to a DVD which was part of Exhibit 1) was played to the Court, several times. Although the vision is somewhat grainy (as is amply demonstrated by “stills” from it), it does show some evidence concerning the major points of dispute. Before I come to those, it must be said that the pulling out of a television set to detect what was behind it and the concerted searching for what was underneath the beds do demonstrate the extent of the plaintiff’s concern with “cleanliness”. But the cleaning of the stairs was foreseeable, given the $300.00 security bond for cleaning, the “sticky” nature of the stairs (which I accept) and the knowledge that the defendant had of the plaintiff’s intent to do so (through Ms Stevenson).

[47]
Among the major items in dispute was the shower head in the bathroom. I accept the plaintiff’s contention that it was taped in the way shown in the DVD and contained the cotton buds as stabilising splints, wrapped in plastic tape. I also accept the plaintiff’s assertions that the air conditioning units showed the extent of mould that she deposed to. Both these matters were strongly contested by Mr Kallis.

[48]
The plaintiff complained about many other aspects of the cleanliness of Apartment 33. It is unnecessary to consider each and every one of those complaints, although Mr Kallis denied everything apart from the existence of some stray hairs, some tearing in the furniture, and some marks on the furniture and on the walls (being those that could not be removed by a simple wipe). The point for the plaintiff’s case of this litany of uncleanliness was to seek to demonstrate that the quality of cleaning was indicative of the quality of that undertaken on the internal stairway, being so deficient that the Court could place no faith in the cleaning efforts of the cleaning contractors (Mr and Mrs Bowen) being successful in any reasonable effort of that kind.

[49]
Since, for the reasons which will be addressed later, I reject almost all of the evidence of Mr Kallis as being an unreliable account of circumstances concerning the occupation of the residence by the Wright family, the contest as to cleanliness resolves to a determination of the evidence of Mr and Mrs Bowen, in light of the allegations of the plaintiff (which were strongly, if perhaps a mite too unerringly, supported by her husband).

[50]
Accepting that the Bowens’ evidence as to those things which were included within a “Dirty Departs” (see, for example, Exhibit 8) as being cleaning which was not the subject of a requirement placed on them for a “spring clean”, I find that the evidence of Mr and Mrs Bowen, although given genuinely, cannot be seen as completely historically accurate because it spoke of a standard procedure. Although they were not involved as parties to the action - seemingly because they have both been bankrupt for a considerable time and have no relevant insurance - they still took criticism of the standard of their cleaning as an attack on their commercial capacity which had to be defended at all costs. I do accept that much of their evidence was based upon a recollection of their standard procedure in cleaning such an apartment as Apartment 33 for the defendant, rather than a true recollection of cleaning of this Apartment at least a week earlier than the Wrights’ first occupation of it, although I find that it is probable that they did follow their standard procedure.

[51]
Accordingly, on the issue of credit, I accept that the Bowens attempted to address their evidence as accurate historians but only reached the position of giving evidence of their standard procedure in the evidence they gave with respect to the cleaning of this particular Apartment. But I do conclude that even that standard procedure would not have led to any observation of the needle if it were not to be found to be protruding. I do find that there was no protruding for the reasons later considered.

[52]
With respect to the plaintiff generally, I found her to be a person who did have, at least while she was in the witness box, a high degree of concentration on what she was doing and a fairly accurate memory of all that occurred in that short period of occupation (if only because of her heightened reaction, with all its consequences, to the needle stick injury). That, in turn, has some effect on why I prefer – as indicated later – the opinion that there is a prospect of some improvement in the plaintiff’s psychiatric malaise. I find that she was generally truthful in the evidence that she gave (including her complaints of a lack of cleanliness), even though it was clearly tinged with anger, resentment and non-forgiveness against the defendant (and its human representatives).

[53]
As for Mr Wright, he attempted to be a complementary historian. Although he had one eye to the potential effect of his evidence on the plaintiff when she should learn of it later, and although he was rather protective of her overly strong concern for cleanliness, he did present to me as a person devastated by what had actually occurred but as attempting to keep his family life together. In particular, I accept that he did find Apartment 33 was not to the standard that his wife expected and that she did show him, immediately after the incident, the needle in question, identifying it as a hypodermic needle. And I do accept his evidence about the course of advice and treatment at the Royal Brisbane and Women’s Hospital (including the fact that the treating emergency doctor advised disposal of the needle rather than its retention for forensic purposes).

[54]
Mr Kallis was, in all respects, a person who simply gave evidence tailored to suit a defence to the claim brought against the defendant. There were numerous examples of him “modifying” his evidence and numerous examples of him making inconsistent statements on previous occasions. His attempts to address all differences by claiming an explanation which, at least at times, defied logic has led me to doubt almost everything that he said, apart from the instances where there was some contemporaneous document which supported it (other than one of his making), or where his statement was clearly against his interest. Particular instances of his lack of genuine recollection are shown by:

although initially stating, in his evidence-in-chief, that the plaintiff would not show him the needle that had pricked her finger (which Mr Kallis said was cradled in the plaintiff’s hand “inside” a tissue) and that he just “saw an outline of it” because “she wouldn’t show me” and that then she “just left and went upstairs”, he later stated, in cross-examination, that he “saw the needle” because he could “just see in the palm of her hand this little needle”;
while he was able, at least initially in cross-examination, to confidently assert that its length was probably about an inch, he later, again - after reference to an earlier statement he had made –contended that it was some 50% longer than that; and
while initially stating that he had informed the Bowens that the defendant could not longer retain their services because of difficulties about obtaining money from the Body Corporate (which they themselves stated – which I accept - they were told), earlier witness statements made by him completely contradicted that as the real reason.

Other instances, which I also accept, are collected in detail in the plaintiff’s written submissions: at paragraph [23].

[55]
Necessarily, I have canvassed only the lay witnesses, apart from the plaintiff’s niece (about whom I have no concerns and whose evidence is relevant to quantum only).

[56]
In summary, subject to any particular exceptions that I identify later, I accept the evidence of the plaintiff and Mr Wright concerning all relevant observations and events on 18, 19, 20 and 21 April 2009 regarding Apartment 33.

Occurrence of incident

[57]
It is not in dispute that some incident occurred in Apartment 33 on 20 April 2009. Even Mr Kallis’ evidence concedes that the plaintiff was seen by him on that day alleging an injury caused by a needle and that he saw the needle or (perhaps) its outline (although he, as observed above, disputed its type).

[58]
Because of the above findings on credit, the conclusions that I reach about how the incident occurred must be based, primarily, upon the evidence of the plaintiff, as supported by her husband.

[59]
Although it matters little for present purposes, I accept that the plaintiff did make a request of Ms Stevenson for items with which to clean the inside of Apartment 33. I accept that the plaintiff was so provided with a mop, a broom and a bucket, but not a vacuum cleaner (although the plaintiff had asked for one). In addition to the “indoor” broom the plaintiff was also given “a little brush and shovel”. She had, earlier, purchased some MYO (being a concentrated disinfectant), some rubber gloves and some cleaning cloths.

[60]
As the plaintiff herself described it, when she started the cleaning she decided that she “would pretty much treat it like I was going to do a full clean on a hospital room at home because of the fact it was so dirty”. With respect to the important aspect of the internal stairways – which were polished wooden boards with side runners and with a riser on the stair in question as well as on those immediately above and below (see Photograph 4 on page 13 of D4 in Exhibit 1) - having cleaned all the upstairs section of Apartment 33 (involving 2 bedrooms and a bathroom), the plaintiff began by wiping each step as she came down the stairs. The plaintiff stated that she was wiping, facing the particular step, from right to left with her right hand when Mr Wright started talking to her from downstairs, that this “distracted” her, that she became “frustrated” such that, as she wiped into the left hand corner of the back of the step in question, she “sort of wiped in hard”, and that was when she “actually got stuck with the needle” with the rubber glove that she was wearing on her right hand proving no barrier.

[61]
As to which step it was among the many steps with risers on that stairway, the plaintiff stated that it was “sort of halfway” among those with risers.

[62]
D4 of Exhibit 1 contains several more photographs of the particular stairs in question.

[63]
In describing the actual incident, the plaintiff gave evidence that the needle “was actually stuck in the end” of her finger. In describing what happened immediately thereafter, the plaintiff stated that she took her left hand glove off so that she could pull the needle out of her right finger and then flicked the right hand glove off, placing the needle inside the palm of the glove and folding it over.

[64]
What she did next I will discuss in more detail in dealing with the issue of damages. Suffice it to say that, in identifying the needle as a hypodermic needle, she had worked in hospitals where she had seen such needles, describing the particular needle as bevelled at the end and having a fine hole through the centre. The reason, beside accepting the plaintiff’s evidence on this point, that I conclude that it was a hypodermic needle is that I accept the plaintiff’s evidence (given without objection) that the treating doctor at the Emergency Department of the Royal Brisbane and Women’s Hospital, after questioning the plaintiff about whether she had a hepatitis C injection and administering a tetanus shot in her leg and taking blood for a full blood test, advised her that she ought to dispose of it – which he did by putting it in the “yellow needle sharps” on the trolley “where the blood testing stuff” was – after discussing with her whether she “really wanted to travel around with that in her suitcase”. See, also, the records of that Hospital referring to a “deep puncture” and to “needlestick” and “high risk”: in Exhibit 1 [B1]-[B2].

[65]
I also accept the plaintiff’s evidence that soon after the incident she went down to the reception area of the premises and talked with Mr Kallis, showing him the needle by unfolding the glove, to which he did respond that it was “definitely a hypodermic needle”. I also accept that Mr Kallis said to the plaintiff that he would take the needle from her if she liked, but that she replied that she would just hang on to it until later because she “didn’t know whether or not (she) would need anything if (she) went to the hospital”.

[66]
Necessarily, for the reasons expressed above with respect to credibility, I reject the evidence of Mr Kallis concerning his version of what occurred at the time just referred to.

Observability of the needle

[67]
It can be seen from the particulars that the plaintiff has alleged concerning negligence and breach of contract that the aspect that is primarily relied upon is a failure to remove the needle from the internal stairway, with that being alleged to be an inevitable consequence of the requirement to “provide” Apartment 33 in a clean, tidy and safe condition, so as to be reasonably fit for the purpose of residence. On the duties that I have held to apply here, it is not simply a failure to remove. Rather, the question is whether there was any “failure” which was a consequence of a failure to exercise due care and skill in cleaning and, or alternatively, in inspection so that the premises be reasonably fit for habitation as a domestic residence.

[68]
The evidence led on behalf of the defendant, both from Mr and Mrs Bowen and from Mr Kallis, was to the effect that during the cleaning performed by the Bowens on 12 April 2009 nothing was observed in the nature of a needle on any of the stairs in the internal stairway and that the later inspection by that representative of the manager also did not detect the presence of any needle on the stairway. Regardless of whether Mr Kallis did do such an inspection after the Bowens’ cleaning or whether Ms Stevenson did it, or whether it was not done at all by either of them, even if any inspection of that kind was ineffectual (or overlooked), it will in the end depend on what was observable to the reasonable person when such a person either conducted it or should have conducted it, after such cleaning.

[69]
The method of cleaning adopted by the Bowens was conceded by them – as earlier concluded, in terms of their recollection - as their standard procedure. It was that Mr Bowen “would vacuum” the internal stairs (having a backpack vacuum cleaner), then dampen a Sabco flat mop with reasonably hot water, wring it out, obtain wooden floor cleaner which would be sprayed on the end of that mop and then mop each stair down, after which he would use a towel, or clean cloth, and buff the stair off so “it didn’t leave watermarks on it”.

[70]
In a “housekeeping report” (which became Exhibit 12 - a document completed by the Bowens after their cleaning on 12 April 2009), while the Bowens indicated that they had “actually been in there and cleaned the room”, they did not have occasion to add any further written comment such as that which they had done for Apartment 23 on the relevant report.

[71]
I accept the answer given by Mr Bowen in cross-examination - when asked whether the fact that he was not being paid a “large sum of money” for the work that he did on Apartment 33 meant that, therefore, it was really to the Bowens’ benefit to try to move through the cleaning as quickly as possible - that he “never looked at it that way”. On further cross-examination of him, Mr Bowen asserted that, in vacuuming, he would use “small connections” so that he could “get into creases and things like that”, crouching down to do that work with the backpack on his back. As well, when using a “towel” on the stairs after moping he would do so by hand, although with respect to the lower part he would use his foot as he went and “just polish it along”. As for his ability to see a needle such as this one, he did state, in cross-examination, that using his “three-stage process” and “being close to the stairs” he “should have been able to see the needle protruding from the stairs”, “for sure”. I do not accept that such a response means that anyone who had done a clean in this standard way used by Mr Bowen would necessarily have seen this needle, since, in fact, it may well have been lodged in a “crease” and remained undisturbed by the process used by Mr Bowen, thereby also remaining unobservable (for the reasons I discuss later) and non-protruding.

[72]
As for the further parts of cross-examination concerning what was shown on the DVD, I do not accept that it detracts in any way from the evidence that Mr Bowen otherwise gave, particularly considering the limited “cleaning” brief that he had for the areas about which he was closely questioned.

[73]
The evidence of Mrs Bowen was of little utility for the specific findings that are needed for this case. Nevertheless, to the limited extent to which it does support the evidence of her husband, I accept that, while she did not see him do those particular stairs or do other than his standard procedure, nothing came to her attention which required the addition of some written notation on the housekeeping report.

[74]
It should be mentioned that Mrs Bowen readily conceded that she may have had her back to the stairs, at least at some point, when her husband was cleaning them.

[75]
In summary, concerning the Bowens, while it was freely acknowledged that there was no specific recollection of the cleaning in question on 12 April 2009, I do accept that the cleaning actually undertaken did follow a standard procedure – if only because Mrs Bowen’s comment rings true that otherwise “we wouldn’t get through the work” – and that no observation of a needle was made. As I earlier remarked, the answer given by Mr Bowen about a capacity to see this needle was inevitably a matter of speculation on his part, given that to his knowledge there has been no “direct” evidence at all as to where the needle was immediately prior to it coming into contact with the plaintiff’s finger (that is, whether it was loose on the step itself, whether it was in the middle or already in the corner, whether it was in the crease between the riser and the step and, if so, whether it was wedged or freestanding).

[76]
As will be canvassed in some more detail later, it is really a matter of determining, if it is possible, what is a more reasonable inference than all other competing inferences, or whether they are merely all competing inferences leading simply to a speculative evaluation only.

[77]
Dealing, then, with the plaintiff’s own evidence concerning her non-observation of the needle prior to the incident, as revealed in cross-examination, she had walked on the stairway, noting only that it was “sticky”, many times before the incident and had not noticed anything of a needle kind on the stairs. In addition, she acknowledged that there was a light over the staircase, although her recollection was that she probably only used it once. She acknowledged that her husband, while taking the video, did so in his bare feet and that the children moved about the apartment in bare feet as well. There was nothing that occurred in all of those undertakings which showed up the presence of any needle.

[78]
The most important concession that the plaintiff made (besides the fact that she had sufficiently clear vision of the stairs to be able to notice the stickiness on the surface of the stairs, at least on the way up, and besides her concession that, when you walked up the stairs, “where the backs of the stairs met there was a line of dust from corner to corner – you could see it as plain as day”, where there was no cogent evidence that that dust would have obscured the needle wherever it then was) was that if the needle was wedged in a crease at the back of the tread then “no one” could “reasonably see it”, adding that if it had been sitting on the top of the tread she would have seen it and picked it up.

[79]
Despite providing some general support to his wife, the importance of Mr Wright’s evidence in this context is that he also conceded that he used the stairs many times before the incident, that he did “indeed” go about bare foot and that the children did so bare footed as well. In his co-inspection with Mr Kallis – which I accept happened – on 19 April 2009, Mr Wright himself saw no needle, conceding that he looked down at the stairs whilst he was using them.

[80]
The obligation cast upon this Court in circumstances where inferential reasoning is relied upon is to ascertain whether it can conclude, from the circumstances, that they give rise to a reasonable and definite inference rather than to conflicting inferences of equal (or lesser) degrees of probability so that the choice between them is a mere matter of conjecture, while understanding that inferences can be drawn from slim circumstantial facts that exist, so long as they do go beyond speculation: see Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 at [42]-[43].

[81]
Accepting, as I do, that any needle which was in fact loose on the stairway on 19 April 2009 and for the seven days before, would have been seen by some one of the several persons who traversed that stairway for various reasons over that time, a reasonable and definite inference is that the needle was sitting fairly flatly in the crease between the tread and the riser – whether loosely at some short distance from the left side runner, or wedged firmly in the corner constituted by the join of the tread, riser and runner on the left most edge. Although I do accept that the needle was so positioned for that period, it is impossible to say when it first came to be within the Apartment: see the discussion by the majority in Strong v Woolworths Ltd t/as Big W^[27] concerning determination “on consideration of the probabilities”: at [34].

[82]
On that conclusion, consistently with the concession made expressly by the plaintiff, I find that it was unobservable to the reasonable observer. I conclude that such a reasonable observer would have been a person who was aware of the possibility that the defendants’ “strict no drug policy” might have been breached, perhaps even some time earlier than the 7 days mentioned. Although the plaintiff’s submissions refer to “the precautions” that were not taken, they were not identified in the evidence. To the extent that they should have included a more careful inspection, there is nothing in the evidence, including inferential findings, that demonstrates to the required standard that the needle so positioned could have been thereby detected. The context for both the cleaning and inspection is that the Bowens had never observed such things as syringes or hypodermic needles in all their cleaning of the Apartment complex – which I accept - and that no one gave any evidence that the “missing” parts of the apparatus were ever located, at any time.

Liability

[83]
As outlined, in this case not only does a general duty of care apply – applicable to a landlord with some management obligations - but also a contractual term is implied, in the nature of a warranty, seemingly not by the common law but through a statutory imposition. Even if they were to be not equally of the same content, though concurrent, on the conclusion that the implied contractual term is no less wide than the common law duty, it is to that which the Court will turn. Because I have found that the plaintiff’s psychiatric injury is of a consequential type, it is unnecessary – for duty, or breach – to consider the matter of “normal fortitude” further than to observe that I do find that it was reasonably foreseeable that a person such as this tenant (known to the defendant from her observed behaviour by its representatives) could suffer such an injury of the kind, or class, suffered by the plaintiff as a potential consequence of a needle stick injury (in that such psychiatric sequelae could flow from the consequential concern arising from indeterminate results upon testing for HIV). The later, further decompensations in late 2010 and even 2011 were, according to Professor Whiteford, causally related to the original disorder. It is, consequentially, irrelevant that the defendant neither knew of the plaintiff’s alleged special “vulnerability” nor was aware of the actual presence of a needle in the Apartments (although I have found that it was aware of such a potential).

[84]
For present purposes, given that it has been admitted on the pleadings that the relevant purpose which was made known to the defendant was that the plaintiff required the use of Apartment 33 for herself and her family “to reside in”, there is – as earlier analysed - no effective difference between a warranty that the relevant services are rendered with due care and skill, and a duty to the effect that they be “reasonably” fit for habitation as a “domestic residence”, or that they are “reasonably” fit for the “purpose” of “short-term residence”.

[85]
As I have also earlier concluded, neither the circumstances of this landlord/tenant relationship here nor the implied warranty as applicable here engages either a justifiable claim of any delegable duty or bypasses the imposition of vicarious liability with respect to the cleaning contractors.

[86]
Although efforts were made to elicit evidence during the trial to establish that another person, or persons, occupied Apartment 33 for more than a momentary period between the cleaning of it by the Bowens on 12 April 2009 and the entry into it by the Wrights on 18 April 2009, there is simply no cogent evidence which would establish that as a fact. Consequently, the only evidence that needs to be considered is that directed to the efforts of both the defendants’ employees and the Bowens, in determining whether the obligation of rendering due care and skill – or, alternatively expressed, the exercise of reasonable care to avoid foreseeable risk of injury (in these particular circumstances) - was breached by the presence on 20 April 2009 of the hypodermic needle which gave rise to the harm in question.

[87]
As the “duty” has been analysed, it is necessary to apply the overriding principles concerning breach contained, in particular, in s 9 and s 11 of the CLA (s 10 not arising on any submission made), because of the concurrent nature of the statutory duty with the “duty” of care in tort in the circumstances of this case.

[88]
Applying the provisions of s 9(1) of the CLA to the facts as I have found them:

the risk of harm in this case was not foreseeable in that it was a risk of which the defendant did not know or, given the conclusions that I have reached, ought not reasonably to have known; but
if (despite the first conclusion) it was, in fact, foreseeable in the present circumstances, then, while the risk would not be insignificant, a reasonable person in the position of the defendant would not have taken any more “precautions” than those which were taken by engaging the Bowens to clean in their standard way, inspecting their work and inspecting generally (where the object was unobservable to the reasonable observer thereby leading to a low probability of harm); and
those conclusions embrace a consideration of the factors in s 9(2) of the CLA; and
here, it is unnecessary to consider both the elements of factual causation and the scope of liability which are the subject of s 11 of the CLA, because, as Strong instructs, in cases like this, even under the statutory regime, factual causation requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm (with a necessary condition being a condition that must be present for that occurrence) and, as there, the causation issue has nothing to do with concepts of material contribution to harm, material increase in risk of harm, or any of the difficulties discussed by the text writers in context of the limitations of a “but for” analysis of factual causation: at [20] and [29].

[89]
The reason why the above determinations would be reached is that, as the plaintiff asserted herself, on the only reasonable inference open being that the needle had become positioned in the crease of the particular stair in the stairway where it was not observable (to the reasonable observer), the response of a reasonable person, confronted with the lack of any knowledge of the needle and aware only of the possibility that a drug user might have occupied the Apartment some indeterminate time beforehand, would have been to do no more than what was done, particularly where it has not been established – rather than asserted - that any more competent clean or inspection would have achieved the requisite discovery. The fact that the plaintiff was undertaking such cleaning as she did was known to Ms Stevenson (on the evidence which I have accepted); and she was appreciative of it. Consequently, I reject – as indicated earlier – the allegation that the plaintiff was not “using” Apartment 33 “to reside in”. Thus, because I have accepted that Apartment 33 was not clean (if only for the shower head, the mould and the sticky steps), the plaintiff was engaged in an activity which was reasonably associated with occupation.

[90]
While this result might be seen to be an unfortunate consequence for the plaintiff, there was no evidence – despite attempts to establish an aura of prostitution and drug use in and around the premises – that persons engaged in such activities were ever known to be in occupation of Apartment 33 with consent (or otherwise) or should reasonably be seen to have been so. Given the special measures adopted on behalf of the defendant (which were not gainsaid) and working “closely” with the police meant that the defendant was not required to adopt a much more heightened examination of every nook and cranny in that Apartment, although – as earlier held – both the cleaning and inspection were to be undertaken in an awareness of the possibility of the security measures being breached. The absence of the remaining parts of the needle’s apparatus or any prior discovery of any such needle meant that such a heightened awareness was reasonably not triggered by that circumstance either.

[91]
In the final determination, the plaintiff bears the onus, on the balance of probabilities, of proving any relevant breach: see, also, s 12 of the CLA. It is to be remembered that such cases as this one do not involve considerations of insurance of the plaintiff.

Aftermath of injury

[92]
The distress of the plaintiff upon the infliction of the needle stick injury was immediate, and severe. She caused the wound to bleed and applied raw concentrated detergent to it.

[93]
Further, after expressing her grievance to the representatives of the defendant, she soon sought medical treatment at the Royal Brisbane and Women’s Hospital where, as noted, full blood tests were ordered. Additionally, her reaction to the tetanus injection was one of pain, discomfort and restriction (although relatively short lived).

[94]
The plaintiff’s holiday plans were jeopardised not only because of the fear of contracting HIV but also because of the necessity to undergo further tests. In the end, Mr Wright’s professional “course” – for which the Wrights came to Brisbane – was cancelled and the period otherwise to be enjoyed as a family holiday was cut short.

Psychiatric background

[95]
The plaintiff called Dr Andrew Byth, a psychiatrist. He had examined the plaintiff on 2 occasions and prepared 5 separate reports.

[96]
Since the plaintiff’s post-incident history is not really in contest - with the dispute between the parties being concerned with the exact nature and long-term effects of any injury - I will not, separately, canvass the history of the plaintiff’s condition between the incident and the trial in terms other than that described by the reporting psychiatrists.

[97]
According to the initial history taken by Dr Byth from the plaintiff:

during the Queensland holiday, the plaintiff was worried about her blood test results, could not relax and enjoy the holiday, and thought that infection could possibly kill her, being a matter “hard to come to terms with”;
on returning to her home in South Australia, she completed the last week of her holidays at home but she remained preoccupied with a possibility of an infection and felt “very depressed and suicidal”, eventually seeing her GP, being prescribed an anti-depressant and referred to a psychologist for counselling.
she recalled intending to overdose on her medication, but her husband interrupted her and she subsequently changed her mind;
on returning to work at the completion of her time off for her holiday, she had difficulty coping in the hospital and community support environments, as they reminded her of the needle stick injury, being very anxious when she saw pins and needles, necessitating time off work which appeared to upset her fellow workers;
in October 2009 she broke down when she was doing meals in the ward, being upset to see blood on her hands from a patient and thereafter found that she could not work in a hospital, so took leave and eventually resigned in November 2009;
after that resignation, she remained off work, being financially supported by her husband;
as at 15 March 2010, despite having anti-depressant medication and counselling, she continued to complain of depressed moods and anxiety, along with sleeping poorly;
at that time, also, she continued to have frequent suicidal thoughts and thoughts about missing her previous work at the nursing home which she enjoyed and thinking about her beauty therapist qualifications, but being unable to deal with bodily fluids or seeing blood anymore, worrying that her health was at risk;
additionally, she worried that her HIV tests were indeterminate, that she needed to get her blood rechecked every three months and was becoming too frightened and “pushed to the limit” to continue having such repeat tests, worrying whether she was safe around her children and believing that the whole situation was “not fair”;
at the same time, at home, she lacked her usual energy and interest for housework and cooking, her appetite was decreased and she lacked interest in going out and seeing friends; and
she believed her concentration and memory were affected and, although she had no flashbacks of the needle stick injury, she got dreams of anger and had begun gambling.

[98]
After that first examination by Dr Byth in mid-March 2010, the plaintiff was further examined by Dr Byth in mid-March 2012. The relevant additional history taken 2 years later was that:

the plaintiff had remained off work “because of severe depression”;
in late 2010 she became increasingly depressed despite being on an anti-depressant and was drinking heavily and getting suicidal;
she had problems with excessive gambling on poker machines in 2009 – 2010, until her husband cut off her access to funds;
around November 2010, after becoming very negative and suicidal and driving off into the country and crying uncontrollably, she rang her counsellor at the Berri Hospital and saw the staff at Mental Health, recalling her that her “final” HIV had come back “negative” but that she “could not get over it rationally”;
in late 2011, she was still very depressed, getting very suicidal, and drinking excessively, sometimes up to five bottles of wine a day, with her husband complaining about her drinking too much;
in late 2011, she was admitted to Glenside Psychiatric Hospital in Adelaide and her anti-depressants switched from Effexor XR to Cymbalta;
over the “last” 3 months, she had stopped drinking and had commenced weekly counselling with a psychologist, Dr John Gurr, whilst continuing with the follow-up at the Drugs and Alcohol; and
she has continued in follow-ups with her GP, and her dose of Cymbalta was increased from 30 mg to 60 mg daily.

[99]
The defendant called Professor Harvey Whiteford, also a psychiatrist. He also examined the plaintiff on 2 occasions. He prepared 2 reports.

[100]
On the same basis as before, the additional post-incident history of the plaintiff taken at the time of his first examination on 24 November 2010 revealed that:

when the blood tests taken as a result of the Royal Brisbane and Women’s Hospital were made known to the plaintiff, they came back “negative” for hepatitis B but “borderline for HIV”, which distressed her greatly;
on returning to South Australia, she had 3 further blood tests all of which were “indeterminate” with respect to her HIV status;
she became markedly preoccupied and distressed that she had, in fact, contracted HIV and, because of her distress, the plaintiff contacted a HIV support group in Adelaide and was given the name of an HIV specialist to whom she spoke around September 2009 (although it may have been earlier), with her remembering that he told her that he could “quite comfortably say that (the HIV blood test) was negative”, although the plaintiff said that she did not understand how he could be so confident given the actual result;
she believed the reason that the fear of HIV affected her so much was because she had lived with a violent drug addict for years trying to protect herself and her kids from needles, being a relationship from 1984 to 2001 in which there were two children (aged 25 and 22 as at 24 November 2010);
the reason why she was so distressed was that the defendant’s representatives spoke to her in a way that showed they “just didn’t care”;
she became so obsessively preoccupied, after returning to her position as a services support worker at the Renmark Paringa District Hospital that she might sustain another needle stick injury whilst cleaning, that she resigned in November 2009;
before being prescribed with the alternative anti-depressant medication, Effexor, she had been prescribed Cipramil (which, from the medical records of the Renmark Medical Centre, occurred after a consultation on 5 May 2009);
as the relationship with her husband deteriorated in 2009 and 2010, the couple sought counselling through Relationships Australia, receiving counselling for several months both together and the plaintiff individually; and
when, at this first consultation with Professor Whiteford, she was asked whether she had any other psychosocial stressors, she told him that her mother had been diagnosed with lung cancer three months prior to the consultation with him.

[101]
The second examination by Dr Whiteford revealed the following further aspects of the post-incident history, as at the examination on 23 May 2012:

she was still unemployed and had not undertaken any remunerated employment since Professor Whiteford’s last examination;
around October/November 2011, the dosage of Effexor was increased to 225 mg a day because she was becoming more depressed and it was after “everything built up” during 2011 that she developed suicidal ideation before admission to the BerriHospital;
she described the stressors that had “built up” as including: a continuation of the worry that she might have an infectious disease, despite the negative results; being very distressed by the ongoing litigation; and facing 4 “family” stressors;
the first of those family stressors was that her mother underwent surgery for carcinoma of the lung at the end of 2010, requiring chemotherapy which resulted in significant side effects requiring rehospitalisation in 2011;
the second family stressor was that in October 2011 her father had a recurrence of a renal malignancy which required further surgery and he had declined chemotherapy;
the third family stressor was at the end of November 2011 when she was informed that her son, then an 8 year old, had been sexually abused by another student, impelling her to report the incident to the School, with the Police being involved as were Children’s Services, leading to the removal of both children from the School (which was beneficial);
a contributing factor to the third family stressor was that she had been sexually abused on one occasion while an 8 year old by an adult male and that this had made her more intolerant of child abuse and more distressed by her child’s abuse (with her child now attending a Child and Youth Mental Health Service for counselling and being assessed for a possible Aspergers syndrome);
the fourth family stressor was that there was conflict with, and estrangement from, her 24 year old son in the later part of 2012, when he was apparently angry and distressed about the excessive amount of alcohol she was consuming;
while admitted at the Glenside Hospital, there were distressing interactions with another patient which led to her being very keen to be discharged and not wanting ever to be readmitted there;
“lately”, after returning to Dr Sims, her Cymbalta medication was increased from 30 mg to 60 mg a day;
although she remained abstinent from alcohol until March 2012, becoming increasingly anxious of the prospect of having to go to Court on 14 March 2012, she started to drink alcohol again just prior to that Court appearance which, when it occurred, made her very anxious and was only able to spend 40 minutes in the court room before leaving with “intolerable” anxiety which caused her to start drinking heavily again;
she had stopped drinking from that episode about one week prior to her consultation with Professor Whiteford in 2012;
a further stressor was ongoing marital stress in circumstances where she does not trust her husband anymore because he was involved in insisting that she take the transfer to Glenside Hospital which turned out to be a very distressing experience;
as for the other stressors noted earlier, her parents’ medical conditions were now stable, she got on better with her adult child with whom she had the estrangement, and her younger children had settled well into their new school with the son who was abused obtaining treatment; and
the plaintiff had a considerable anticipatory anxiety about how she will cope when she would return to Court (for the trial which has just been concluded).

Nature of psychiatric injury

[102]
Although the plaintiff was closely examined about matters that she had raised with both psychiatrists, there is nothing in the evidence elicited which in anyway contradicts the history, both pre-incident and post-incident, which has been canvassed, albeit relatively somewhat briefly, already.

[103]
Dr Byth’s final written diagnosis was that, as the plaintiff’s anxiety and depression had worsened since he saw her initially in 2010, it now warranted a more substantial diagnosis than an Adjustment Disorder, with anxiety and depressed mood. That more substantial diagnosis was one of Major Depression, with prominent associated anxiety and agitation.

[104]
Dr Byth opined that, overall, the plaintiff’s condition had deteriorated very significantly and she was now a significant risk of a “completed suicide”, believing she is likely to need readmission to hospital, and a consideration for electro-convulsive therapy (“ECT”).

[105]
Dr Byth assessed her permanent impairment rating using PIRS, relative to a Whole Person Impairment from the relevant conversion table, at 57%, with no reduction for any pre-existing impairment.

[106]
Professor Whiteford, in writing, diagnosed the plaintiff as now having Major Depression, in partial remission, as well as meeting the diagnostic criteria for alcohol abuse (a conclusion also reached by Dr Byth – although at the stage of Dr Byth’s examination she had abstained and therefore simply qualified for a past diagnosis of Substance Abuse Disorder of that kind). Professor Whiteford was of the opinion that there was no evidence of an active depressive disorder at the time of the needle stick injury in April 2009. He was also of the view that the depressive disorder was being maintained by a number of stressors, with the major ones being the plaintiff’s anger and bitterness held towards the managers of the Bonapartes Serviced Apartments, the worry that she may have contracted an infectious disease, litigation and alcohol abuse. He agreed with Dr Byth that her diagnosis had changed from an Adjustment Disorder to a Major Depressive Disorder but opined that the triggers for this deterioration were the ill health of her parents, sexual abuse of her son, escalating alcohol abuse and ongoing anger, bitterness and resentment.

[107]
Professor Whiteford, using the same PIRS methodology for rating, assessed the plaintiff as having a 22% impairment, with no pre-existing disorder. He opined that this level of impairment would improve once the stressors that he identified were removed and believed that the plaintiff would be left with some permanent psychiatric impairment, although it would be “much less” than her current level of impairment.

[108]
With respect to work, Professor Whiteford opined that the plaintiff was “presently” unfit to work and that, while the depression was not resolved and the stressors which maintain it remained in place, that would continue. With respect to ongoing psychiatric and psychological treatment, he was of the view that current attendances on Dr Sims and Dr Gurr, each about once a month, would be appropriate but she may require more support and treatment at the time of the trial.

[109]
The views expressed above by Dr Byth and Professor Whiteford were stated in their reports (which both became part of Exhibit 1, Volume 2). Both were the subject of cross-examination at trial and the following further conclusions can hence be drawn from all their evidence.

[110]
For Dr Byth, as at the date of trial:

he was recommending a change to Aurorix on the basis that the plaintiff had not responded fully to her first 2 anti-depressants (although, in fact, there had been 3 taken from the time of the injury until then);
he referred to a 7 year STAR D research study which he stated showed that, by the time plaintiffs were getting to their third anti-depressant, the rates of recovery were down to about 13% or 14%, with the likelihood that recovery now for the plaintiff was “low”;
concerning the electric shock therapy, he opined that it was overwhelmingly used for very severe depression and usually was very effective, or it came out exactly with the same effectiveness as anti-depressant medication but had a more and sure and prompt action, and was usually very well tolerated and effective;
he opined that the plaintiff’s condition was likely to continue at the assessed rate of 57%;
he disagreed with Dr Whiteford’s diagnosis and prognosis, concluding that the latter underestimated the severity of the depression, not having a section on her mental state examination;
in cross-examination, he conceded: that no explanation had been given as to why the plaintiff did not have any further blood tests between August 2009 and November 2010; that he could not say whether the history of the plaintiff’s association with the violent intravenous drug user would be a relevant circumstance, as he would only be guessing; that he did not know that she was fearful for her children during the course of that violent relationship; and that an episode of the intravenous drug user beating the plaintiff up when one of her children walked in on him whilst he was injecting would be a fairly significant incident in a person’s psychiatric history (although he did not know to what extent it might have a lingering effect);
he also conceded, in cross-examination: that the plaintiff was very distressed by the ongoing litigation; that he thought that the plaintiff had some obsessive compulsive pre-morbid personality trait (although he did not recall anything about her cleaning compulsion); and that he was not aware of her mother’s or father’s brushes with cancer; and
he opined that the plaintiff had developed a major depression from the needle stick injury and that the other incidents that occurred alongside it or after it would have made it hard for her to cope with, as well, the family stressors.

[111]
With respect to Professor Whiteford, his evidence further revealed that:

in his opinion, an adjustment disorder must come on preceded by an identifiable stressor and it cannot persist for any longer than six months after the stressor which caused that condition, or the consequences arising from that stressor, had ceased;
there were a number of stressors which have maintained the adjustment disorder arising from the needle stick injury;
these other stressors have caused a deterioration in the depression arising from the needle stick injury;
a number of stressors contributed to the plaintiff’s decompensation at the end of 2011;
if both the depression and the alcoholism were able to be treated, there would no reason why the plaintiff could not return to alternative employment;
concerning the Star D Study, he limited the results as applying only to those people whose stressors could not be removed;
she did not have ongoing suicidal tendencies at the second examination, although he accepted that she had such earlier that year;
with respect to the prognosis at present, she can be treated and can improve, once stressors that she has been exposed to have been removed which would enable her to be effectively treated, even though “recovery” from depression was “unlikely”;
the initial stressor was the needle stick injury and the consequence of it was the expectation that she may have developed an infectious disease such that, until the blood tests cleared her of that, she still had an adjustment disorder because that stressor had not been removed;
for the future, he did not see a place for electro-convulsive therapy because of his “take” on the removal of the stressors; and
with respect to the “delay” in having the final blood test, it did not remove one of the stressors which would have helped her condition.

[112]
Although both psychiatrists have come to a common view about the existence of the Major Depression, since there are differences about the level of impairment, about the prognosis and about the need for electro-convulsive therapy, it is necessary to resolve such conflicts.

[113]
I was particularly impressed by the evidence of Professor Whiteford and concerned about the extent of concessions by Dr Byth. I do not accept that the mere fact that Professor Whiteford’s original prognosis was not borne out is a disqualifying factor, particularly where Dr Byth had first reached a similar conclusion and where new stressors emerged after his initial examination. The clarity of his explanation concerning the existence of a galaxy of stressors apart from the original significant stressor of the fear of infection arising from the original physical injury illuminated the reasons for both specialists’ original diagnoses and their revised ones. I accept that his analysis of the recent removal of many of the significant stressors that led to the decompensations at the end of 2010 and 2011 has now been achieved (except that concerned with the litigation) and that, with the removal of the existing additional stressors at the end of this proceeding - were she to be successful (which is the basis for awarding damages) - the plaintiff’s condition would be more easily treatable without the need to rely upon the suggested ECT.

[114]
In consequence, I accept, with respect to the future, that there is a significant chance of some recovery for the plaintiff, even though there will not be a complete remission now. I accept that her current PIRS rating is, as Professor Whiteford has opined, 22%, with no pre-existing disorder. Lastly, I accept that there is a prospect, which I also judge to be in the order of an equal chance, that she will be able to return to some employment, even perhaps as a beautician (after treatment), on the scenario which underlies such an assessment.

Damages

[115]
Even though I have found against the plaintiff on the issue of liability, it is necessary for me to move to an assessment of damages that I might otherwise award were the plaintiff to have been successful. Nothing particular to the circumstances of this case shows that damages would be assessed differently if tortious damages, rather than contractual damages, were to be awarded.

Remoteness of damage

[116]
Even a glancing reference to relevant authority (see, for instance, Mason P, speaking for the Court, in Kavanagh v Akhtar^[28]) shows that this consequential psychiatric injury was reasonably foreseeable damage, acknowledging a cognisance of the community’s awareness of the nature of the potential consequences from a needle stick injury wheresoever suffered, and paying due regard to Professor Whitefords’s evidence about the occurrence of such a condition and other connected sequelae such as alcohol abuse. See, also, Lisle v Bruce.^[29] Again, it matters not for such purposes whether the damages are contractual or tortious: see Luntz, Assessment of Damages for Personal Injury and Death (4^th ed) at [2.1.6].

General damages

[117]
Because of the application of the CLA to “recovery” for both sustainable causes of action, it is necessary to have recourse to the provisions of the Civil Liability Regulation 2003 (“CLR”).

[118]
The relevant Schedules in the CLR are Schedules 3, 4, 5 and 6. It is common ground between both the plaintiff and the defendant that the relevant reprint of it is Reprint 2A.

[119]
No ISV has been assessed for the actual physical injury. Therefore, ss 3 and 4 of Schedule 3 are conceptually irrelevant. As s 1 of Schedule 5 states, the several PIRS set out in Schedule 6 rate permanent impairment caused by a mental disorder. In full accordance with s 3 of Schedule 5, both psychiatrists have complied with both Schedule 5 and Schedule 6 in assessing a PIRS rating for the mental disorder of this plaintiff, both medical experts having examined the plaintiff.

[120]
Because both psychiatrists have opined that there was no pre-existing mental disorder, s 5 of Schedule 5 is not presently relevant. For the application of Schedule 6 of the CLR, it is necessary to have specific recourse to Schedule 3. Relevantly, s 2 requires that this Court must consider the range of ISVs stated in Schedule 4 for the injury. Specifically with respect to a mental disorder, s 6 sets out certain requirements which have been met in this case. I do not accept the plaintiff’s criticisms of Professor Whiteford’s basis of assessment. He was not cross-examined on the figures that he selected for the basis of the assessment and, in any event, I note that what I have accepted about the plaintiff’s condition is significantly aligned with his figures. Accordingly, the PIRS rating I accept is 22% at the date of trial. I have paid, also, particular attention to s 8(3), namely, that the fact that Schedule 4 provides examples of factors affecting an ISV assessment is not intended to discourage a Court from having regard to other factors that it considers are relevant in a particular case, a feature also picked up in s 9. In this case, although I have accepted that Professor Whiteford has assessed the rating at 22%, he also opined, which I also accept, that there is a significant chance (to paraphrase his conclusions) – which I have assessed at 50% – that the plaintiff’s condition will improve. I intend to take that into account.

[121]
Turning, then, to Schedule 4, Item 11 deals with a “Serious mental disorder”, with the example being a mental disorder with a PIRS rating of between 11% and 30%. Given all of my conclusions above, I accept that the relevant ISV for the plaintiff is 20.

[122]
By reference to Schedule 6A, since this injury occurred between 2 December 2002 and 30 June 2010, s 1(d) applies (that is, should the injury scale value of the injury be assessed “as 20”). The calculation means that I add $18,000.00 to an amount calculated by multiplying the number by which the ISV exceeds 15 (that is, 5) by $1,600.00. The total achieved as a result of those several mathematical exercises is $26,000.00.

Past special damages

[123]
It is undisputed that these total $3,006.95.

[124]
Interest is allowable under the CLA on past special damages, but only on those which have been actually incurred and only at the rate and over the time mandated. On the basis of the application of a rate of 2.5% over 163 weeks, the interest component is $161.00.

Future special damages

[125]
As I have not accepted Dr Byth’s opinion on these issues, it is necessary to turn to the future assessments made by Professor Whiteford.

[126]
Professor Whiteford was against the plaintiff undergoing the ECT. Nevertheless, he did accept that the plaintiff would need continuing anti-depressant medication and consultations, and only an ECT “if all of that fails”.

[127]
On the basis that there will be a weekly cost to the plaintiff of approximately $20.00 per week (taken from the Schedule of Special Damages) over a period of 30 years, using the appropriate multiplier of 822 (on the 5% Tables), the future special damages - building in a prospective, but unlikely, factor of a future ECT - are assessed at $20,000.00.

Past economic loss

[128]
There is no doubt that both Dr Byth and Professor Whiteford support the conclusion that the plaintiff has been unable to work from her post-incident resignation to the date of trial. I accept that work as a beautician would have, up until now, generated similar issues of negativity as does work of a hospital kind.

[129]
On the basis of accepting the plaintiff’s submissions concerning lost wages, as well as entitlement to annual leave, I assess the past economic loss at $56,667.86. I reject, as inconsistent with Professor Whiteford’s general tenor, that the plaintiff would have decompensated, even without the needle stick stressor, in this period so as to adversely affect her earning capacity in any event.

[130]
Again, interest is allowed under the CLA on this figure. Applying an interest rate of 2.5% over 133 weeks on the sum allowed for past economic loss, the interest component is $3,623.47.

Past loss of superannuation

[131]
On the basis that the CLA permits a calculation for such a loss at 9% of the past economic loss, the loss for this head of damages is $5,100.10.

Future economic loss

[132]
As I have already concluded, the future employability of the plaintiff is to be assessed on the prospect, under the Malec v Hutton^[30] principles, of a chance of 50% that she will have a measurable capacity for productive financial gain. This eschews any detailed consideration of s 55 of the CLA, other than a statement of the relevant assumption about the likelihood of obtaining future work. I do not accept, for the future, that, after treatment spoken to by Professor Whiteford, the plaintiff will be unable to undertake any work as a beautician. I accept that, given the prospect just canvassed and the more limited fields of endeavour now available, some significant proportion (which I assess at 80%) of the total loss claimed would be sustained.

[133]
On that basis, but otherwise accepting the plaintiff’s bases for calculating future economic loss, I assess the award for future economic loss at $280,000.00.

Future loss of superannuation

[134]
For future loss of this kind, the same basis as for the past is used.

[135]
Therefore, applying 9% to $280,000.00, this head of damages is calculated at $25,200.00.

Past care and assistance

[136]
I accept that, given the conclusions reached by both psychiatrists about the plaintiff’s past incapacity to look after herself, she has satisfied the requirements of the CLA concerning recovery of this head of damages. But since she had begun to pay a cleaner for 2 hours per week prior to the incident, I would apply a small discount for that factor.

[137]
Accordingly, I would allow $20,000.00.

[138]
Interest has not been sought, so there is no necessity to consider any competing legal arguments about its recovery.

Future care and assistance

[139]
Because of the conclusions that I have reached about the plaintiff’s likely partial recovery from her present condition, I assess her loss of future gratuitous services at 50% of the amount sought by the plaintiff.

[140]
Accordingly, the loss under this head of damages is $55,000.00.

Assessed total (of damages)

[141]
A summary of the various heads of damage that I have outlined is tabulated as follows:

	General damages	$26,000.00
	Past special damages	$3,006.95
	Interest on past special damages	$161.00
	Future special damages	$20,000.00
	Past economic loss	$56,667.86
	Interest on past economic loss	$3,623.47
	Past superannuation loss	$5,100.10
	Future economic loss	$280,000.00
	Future superannuation loss	$25,200.00
	Past care and assistance	$20,000.00
	Future care and assistance	$55,000.00
	TOTAL	$494,759.38

Conclusion on damages

[142]
Because I have found against the plaintiff on the issue of liability, there will be no damages awarded.

Costs

[143]
Because, for instance, of the prospect of offers having been made, I will give liberty to both parties to file written submissions on costs when handing down this decision.

Footnotes

[1] [2005] QCA 96.

[2] (1997) 188 CLR 313.

[3] (2000) 205 CLR 166.

[4] [2011] NSWCA 372.

[5] (2005) 64 NSWLR 588: at 589-590 [4]-[5].

[6] [2004] QSC 276 at [22].

[7] Jones v Bartlett (2000) 205 CLR 166 at 216-217 [174].

[8] (2007) 232 CLR 486.

[9] (1984) 154 CLR 672.

[10] (2006) 226 CLR 161.

[11] [2007] HCA 6.

[12] (1991) 173 CLR 33: at 38.

[13] (1953) 89 CLR 409.

[14] [1917] 2 KB 325.

[15] [2003] HCA 61, per the plurality at [32] and per Kirby J at [46].

[16] (1994) Aust Torts Reports 81-293.

[17] (1998) Aust Torts Reports 81-481.

[18] [2010] NSWCA 68: at [133].

[19] At [32].

[20] [2007] NSWCA 151.

[21] [2010] QDC 279.

[22] [2005] 2 Qd R 267.

[23] (2002) 211 CLR 317.

[24] [2010] NSWSC 279 at [214]-[218].

[25] [2005] NSWCA 178.

[26] At [38], noting that in Tame the “majority” consisted of Gleeson CJ, McHugh, Hayne and Callinan J.

[27] [2012] HCA 5; (2012) 285 ALR 420; (2012) 86 ALJR 267.

[28] (1998) 45 NSWLR 588 at 600-601.

[29] [2002] 2 Qd R 168, per Williams JA.

[30] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.

Editorial Notes

Published Case Name:
Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as “Bonapartes Serviced Apartments”
Shortened Case Name:
Wright v K B Nut Holdings Pty Ltd
MNC:
[2012] QDC 202
Court:
QDC
Judge(s):
Dorney DCJ
Date:
23 Jul 2012

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2010] QDC 91	19 Mar 2010	Application for an order under s 35(1) of the Personal Injuries Proceedings Act 2002 that the respondent provide certain information sought by the applicant granted: McGill SC, DCJ.
Primary Judgment	[2012] QDC 56	14 Mar 2012	The plaintiff sued in respect of a needle stick injury sustained while cleaning premises in Brisbane which she had taken for the purposes of a holiday. Application for the adjournment of trial granted: Robin QC, DCJ.
Primary Judgment	[2012] QDC 202	23 Jul 2012	Claim for damages for personal injury. Judgment for the defendant against the plaintiff: Dorney QC, DCJ.
Primary Judgment	[2012] QDC 215	09 Aug 2012	Costs orders: Dorney QC, DCJ.
Primary Judgment	[2012] QDC 216	17 Aug 2012	Costs orders amended under the slip rule: Dorney QC, DCJ.
QCA Interlocutory Judgment	[2013] QCA 153	18 Jun 2013	Costs orders: Muir JA, M Wilson J, Douglas J.
Appeal Determined (QCA)	[2013] QCA 66	02 Apr 2013	Appeal allowed. The judgment given on 23 July 2012 was set aside and ordered that the respondent pay the appellant $494,759.38 together with interest: Muir JA, M Wilson J, Douglas J.

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Calin v Greater Union Organisation Pty Ltd	View on:JADE(1991) 173 CLR 33	2 citations Jump To Cite 1 - (1991) 173 CLR 33 Cite 2 - (1991) 173 CLR 33
Coppo v Banalasta Oil Plantation Ltd	[2005] QCA 96	2 citations Jump To Cite 1 - [2005] QCA 96 Cite 2 - [2005] QCA 96
DOWNUNDER ROCK CAFE PTY LTD v ROBERTS	(1998) Aust Torts Reports 81-481	2 citations Jump To Cite 1 - (1998) Aust Torts Reports 81-481 Cite 2 - (1998) Aust Torts Reports 81-481
Gharibian v Propix Pty Ltd	View on:JADE[2007] NSWCA 151	2 citations Jump To Cite 1 - [2007] NSWCA 151 Cite 2 - [2007] NSWCA 151
Gration v C Gillan Investments Pty Ltd	[2005] 2 Qd R 267; [2005] QCA 184	2 citations Jump To Cite 1 - [2005] 2 Qd R 267 Cite 2 - [2005] 2 Qd R 267
Gray v Queensland Housing Commission	[2004] QSC 276	2 citations Jump To Cite 1 - [2004] QSC 276 Cite 2 - [2004] QSC 276
Hollier v Sutcliffe	View on:JADE[2010] NSWSC 279	2 citations Jump To Cite 1 - [2010] NSWSC 279 Cite 2 - [2010] NSWSC 279
Hoyts Pty Ltd v Burns	(2003) 77 ALJR 1934	1 citation Jump To Cite 1 - (2003) 77 ALJR 1934
Hoyts Pty Ltd v Burns	View on:JADE[2003] HCA 61	2 citations Jump To Cite 1 - [2003] HCA 61 Cite 2 - [2003] HCA 61
Hoyts Pty Ltd v Burns	(2003) 201 ALR 70	1 citation Jump To Cite 1 - (2003) 201 ALR 70
Hunt v Knight Frank (NSW) Pty Ltd	View on:JADE[2005] NSWCA 139	2 citations Jump To Cite 1 - [2005] NSWCA 139 Cite 2 - [2005] NSWCA 139
Jones v Bartlett	View on:JADE(2000) 205 CLR 166	3 citations Jump To Cite 1 - (2000) 205 CLR 166 Cite 2 - (2000) 205 CLR 166 Cite 3 - (2000) 205 CLR 166
Kavanagh v Akhtar	View on:NSWLR(1998) 45 NSWLR 588	2 citations Jump To Cite 1 - (1998) 45 NSWLR 588 Cite 2 - (1998) 45 NSWLR 588
Kondis v State Transport Authority	View on:JADE(1984) 154 CLR 672	2 citations Jump To Cite 1 - (1984) 154 CLR 672 Cite 2 - (1984) 154 CLR 672
Kovacevic v Holland Park Holdings Pty Ltd	[2010] QDC 279	2 citations Jump To Cite 1 - [2010] QDC 279 Cite 2 - [2010] QDC 279
Leichhardt Municipal Council v Montgomery	View on:JADE[2007] HCA 6	2 citations Jump To Cite 1 - [2007] HCA 6 Cite 2 - [2007] HCA 6
Lisle v Brice	[2002] 2 Qd R 168; [2001] QCA 271	2 citations Jump To Cite 1 - [2002] 2 Qd R 168 Cite 2 - [2002] 2 Qd R 168
Loose Fit Pty Ltd v Marshbaum	View on:JADE[2011] NSWCA 372	2 citations Jump To Cite 1 - [2011] NSWCA 372 Cite 2 - [2011] NSWCA 372
Maclenan v Segar	View on:ICLRUK(1917) 2 KB 325	2 citations Jump To Cite 1 - (1917) 2 KB 325 Cite 2 - (1917) 2 KB 325
Malec v J C Hutton Pty Ltd	View on:JADE(1990) 169 CLR 638	2 citations Jump To Cite 1 - (1990) 169 CLR 638 Cite 2 - (1990) 169 CLR 638
New South Wales v Fahy	View on:JADE(2007) 232 CLR 486	2 citations Jump To Cite 1 - (2007) 232 CLR 486 Cite 2 - (2007) 232 CLR 486
Northern Sandblasting Pty Ltd v Harris	View on:JADE(1997) 188 CLR 313	2 citations Jump To Cite 1 - (1997) 188 CLR 313 Cite 2 - (1997) 188 CLR 313
Pollard v Wilson	View on:JADE[2010] NSWCA 68	2 citations Jump To Cite 1 - [2010] NSWCA 68 Cite 2 - [2010] NSWCA 68
Sakoua v Williams	View on:NSWLR(2005) 64 NSWLR 588	2 citations Jump To Cite 1 - (2005) 64 NSWLR 588 Cite 2 - (2005) 64 NSWLR 588
Stannus v Graham	(1994) Aust Torts Reports 81-293	2 citations Jump To Cite 1 - (1994) Aust Torts Reports 81-293 Cite 2 - (1994) Aust Torts Reports 81-293
Strong v Woolworths Limited	(2012) 86 ALJR 267	2 citations Jump To Cite 1 - (2012) 86 ALJR 267 Cite 2 - (2012) 86 ALJR 267
Strong v Woolworths Limited	(2012) 285 ALR 420	2 citations Jump To Cite 1 - (2012) 285 ALR 420 Cite 2 - (2012) 285 ALR 420
Strong v Woolworths Ltd	View on:JADE(2012) HCA 5	2 citations Jump To Cite 1 - (2012) HCA 5 Cite 2 - (2012) HCA 5
Sweeney v Boylan Nominees Pty Ltd	View on:JADE(2006) 226 CLR 161	2 citations Jump To Cite 1 - (2006) 226 CLR 161 Cite 2 - (2006) 226 CLR 161
Tame v New South Wales	View on:JADE(2002) 211 CLR 317	2 citations Jump To Cite 1 - (2002) 211 CLR 317 Cite 2 - (2002) 211 CLR 317
Tomisevic v Menzies Wagga Southern Pty Ltd	View on:JADE[2005] NSWCA 178	2 citations Jump To Cite 1 - [2005] NSWCA 178 Cite 2 - [2005] NSWCA 178
Watson v George	View on:JADE(1953) 89 CLR 409	2 citations Jump To Cite 1 - (1953) 89 CLR 409 Cite 2 - (1953) 89 CLR 409
Wyong Shire Council v Shirt	View on:JADE(1980) 146 C.L. R. 40	1 citation Jump To Cite 1 - (1980) 146 C.L. R. 40

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Wright v K B Nut Holdings Pty Ltd[2012] QDC 202