Written by Peter CarterApril 2, 2013
The Court of Appeal today reversed a judgment that last year saw a South Australian tourist fail in a lawsuit against Bonapartes Serviced Apartments in Spring Hill in which she claimed damages as a result of her hand being impaled on a discarded hypodermic syringe in April 2009 as she was cleaning up the filthy apartment after checking in for a two-week stay.
The plaintiff had contended breach of duty and that the premises 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).
The trial court ruled the hotel had not breached its duty in tort or in the contract because the needle was “unobservable to the reasonable observer”, including the cleaners and their supervisors and that any TPA statutory warranty must be read in the context of Civil Liability Act liability limitations and preclusions.
On appeal, the court found that the needle had probably “been covered by dust, hair or fluff” and that had the contract cleaners who performed the ‘departure clean’ to the standard they espoused – albeit at a cost to the hotel of just $44 – the needle would have been detected and removed.
The trial judge had clearly erred: his finding that the cleaners had done their job adequately was “unsustainable” and such conclusion was “glaringly improbable”. Rather – said the appeal judges – the room was left “in a filthy condition” as a result of which it increased the risk of harm to the guests.
“A reasonable person would have taken the precaution of properly cleaning the premises”. The requisite standard of cleanliness did not need to be extraordinary, but merely “that which a provider of services would deem necessary to provide in order and which a user of services would consider acceptable”.
Ms Wright having established that the injury had been caused as a result of such breach of duty, the appeal judges ruled the judgment below should be set aside. Damages were awarded – in the undisputed sum assessed by the trial judge – for the very significant anxiety and depression associated with a potential HIV infection.