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Written by Peter Carter

July 26, 2012

A South Australian tourist has failed to cast “an aura of prostitution and drug use” over a Spring Hill apartment complex where her hand was impaled on a discarded hypodermic syringe.
The allegation arose in a $500,000 psychological injury compensation claim – that the rented unit had illicitly been opened up for day use by call girls – to counter defence evidence that the premises had been thoroughly cleaned upon departure of the previous holidaymakers.

Robyn Wright’s injury occurred in April 2009.

The 43-year-old’s RBH blood tests came back “negative” for hepatitis B but “borderline for HIV”. Understandably anxious, on returning to South Australia she had 3 further blood tests all of which were HIV “indeterminate” but an Adelaide specialist told her – for reasons she did not understand – that he could “quite comfortably say that the HIV blood test was negative”.

Her depression worsened and she became suicidal and abusive of alcohol, requiring hospital admissions in 2011. She commenced a lawsuit for breach by the apartment operators, of duties in tort and in contract to make the premises as safe as reasonable care could make them – alleging these duties were of the non-delegable kind –she led evidence of a “litany of uncleanliness” to assert that more diligent cleaning would have detected and removed the hazard.

Notwithstanding those allegations of the law were upheld, the apart-hotel operators this week comprehensively defeated her claim. The court accepted their argument that any needle which was in fact loose “in the crease between the tread and the riser” – even if it were possible to estimate the period of its presence – “was unobservable to the reasonable observer”, including the cleaners and their supervisors.

Precautions like “working closely with police” to prevent prostitution and a “strict no drug policy”, discounted the need for an “every nook and cranny” search, since no “remaining parts of the needle’s apparatus or any prior needle” had been discovered.

The plaintiff’s contention that the premises – which she booked through on-line travel site wotif.com – were not “reasonably fit for the purpose for which they were supplied” contrary to the statutory warranty implied by Trade Practices Act s 74(1) was neutralized, by the court holding that such warranty must be read in the context of Civil Liability Act ss 9, 10, 11 and 12 liability limitations and preclusions.

Although her suit crashed out, Wright’s legacy for future needle stick plaintiffs was a ruling that her psychiatric injury concerning her multiple indeterminate HIV tests that followed her initial hysteria, was – contrary to the insurer’s “person of normal fortitude” contention – reasonably foreseeable, regardless of whether the defendant neither knew of any special “vulnerability” nor of the presence of the needle.

Shortly before trial, Wright had rejected a $300,000 offer to settle and has since been ordered to pay the defendant’s legal costs.

Wright v K B Nut Holdings P/L (as Trustee for the Kerrie-Ann Stevenson Family Trust) t/as [2012] QDC 202 Brisbane Dorney QC DCJ 23/07/2012

On 2 April the Court of Appeal delivered a unanimous judgement overturning this decision and ordering the insurers for the establishment to pay Ms Wright damages of $495k plus interest.

Categories: Personal Injury , Litigation & Law Practice , Holiday & Travel Law

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