Neary v Surace

[2008] VMC 18

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

CIVIL

Case No. R02133618

Neary	Plaintiff
v
Surace and others	Defendant

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MAGISTRATE:	P Lauritsen
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 12, 20 & 21 August 2008
DATE OF DECISION:	15 December 2008
CASE MAY BE CITED AS:	Neary v Surace and others
REASONS FOR DECISION

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Catchwords: s68(1) Residential Tenancies Act 1997 – liability of owners of a house to a tenant who injures himself – voluntary assumption of risk.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant  HIS HONOUR:

Introduction

1.  This proceeding has had a lengthy history. The complaint was issued on 11 September 2003. A notice of defence was filed on behalf of the first and second defendants on 24 November 2004 and on behalf of the third defendant on 21 December 2004. A pre-hearing conference was held on 18 May 2005. The proceeding was not resolved and was adjourned to a date to be fixed. It was re-listed for hearing for 13 May 2008 but adjourned at the request of the parties until 11 August 2008. It was heard on 11, 12, 20 and 21 August. The parties made oral and written submissions. The last of the written submissions was sent by mail with a covering letter dated 30 September 2008.

2.   The first and second defendants are the owners of a residential property at 4B Barkly Street, Hughesdale. On 28 April 2003, they let the property to the plaintiff, Daniel Neary (Neary), and his partner, Yvonne Rodgers (Rodgers). On 14 May 2003, Neary slipped in a downstairs bathroom and injured himself. He seeks damages from those defendants. The extent of those damages is restricted to the then jurisdictional limit of this Court ($40,000). Neary also sought damages from the agent of the first and second defendants but that claim was compromised during the running of the trial.

Circumstances

3.   The house at 4B Barkly Street was erected during 1999 and 2000. On 18 September 2000 Gary Dubois (Dubois) became its first tenant. He occupied the house, with his family, until 25 April 2003. During his tenancy the downstairs bathroom was used regularly until the last 3 or 4 months. Dubois did not use the shower but his son and daughter did. Dubois identified only one problem with the shower. If the shower curtain was not kept inside the tub then water would find its way to the floor. He complained once to the landlords’ then agent that water could enter a heating duct on the floor. He was unaware of any other opening under the bath. During the period of his tenancy, Dubois was unaware of any squelching sound while walking on the tiles nor did he see water oozing onto the tiles’ surface.

4.  Neary and Rodgers executed a tenancy agreement on 1 May 2003. Prior to doing so, they inspected the house including the downstairs bathroom. There was another bathroom next to the main bedroom upstairs. The downstairs bathroom contained a bath tub and a hand basin. The distance separating the tub and the hand basin was about two metres. The bathroom floor was tiled. Neary saw no defect in the bathroom during his inspection.

5.   Aspects of the bathroom were depicted in photographs tendered into evidence. They show a large, centrally placed shower head over the bath tub. They also show the proximity of the bath to the adjacent wall. Unless protected, it would be likely that water would bounce off a person showering, strike the wall and run down to the floor.

6.  Neary, Rodgers and her son took up residence in the house on 2 May 2003. Neary and Rodgers each used the shower on 2 May. Rodgers used it again on the next day but not thereafter. She used a towel to mop up the water on the floor. The towel became saturated and needed to be wrung out. After her second shower, Rodgers noticed “movement” in some of the tiles. Under the pressure of her foot, she noticed water coming up out of the side of a tile. Neary also used a towel to mop up the water after his shower. No one had used the bathroom to shower for the 12 days prior to the fall.

7.  Both Neary and Rodgers telephoned the defendants’ agent to complain about the bathroom. Both telephoned on the second or third day after moving into the premises. Rodgers complained that they could not use the bathroom because when the central heating operated, there was a bubbly sound. She was terrified of an electrical fault and the possibility of contracting Legionnaires disease.

8.   The state of the floor tiles in the bathroom was described by Neary in these terms:

“Q: Did you notice anything to do with the tiles of the bathroom in your early stages of tenancy? --- A: The – obviously when I first when [went?] in I didn’t, but obviously after the showering, the – if you stood on the tile itself, there was a squishing. Obviously there was loose tiles from the – if you stood on it. You could hear, as I said, from – from when you – from once we had the showers there was squishing – a squishing of water underneath the tile.”

9.  As required by the relevant legislation[1], a condition report was prepared. The landlord’s copy was signed by the landlords’ agent, Bill Kaimakamis (Kaimakamis), on 12 May and by Neary and Rodgers on the same day. In the landlord’s copy and under the column for landlord/agent comments, Kaimakamis wrote in relation to the bathroom – “Tiles have being (sic) damaged by water (tiles lifting)”. In the tenants’ copy, a handwritten note appears in the column “tenant comments” – “Recorded 12.5.03”.

[1] S 35 of the Residential Tenancies Act 1997.

10.Kaimakamis attended the premises on 12 May. He did so in order to follow up matters raised with him by Neary and Rodgers. One of those matters concerned the bathroom. He inspected the bathroom including an area in front of the bathtub. He pressed down on the 3 to 5 tiles in front of the bathtub with one of his feet and felt one or two of the tiles depress a “couple of millimetres”. He did not see any water come onto the surface of the tiles when he pressed them with his foot. He did not see any cracks in the grouting or water seeping through the grouting. He saw no sign of water or evidence of dampness. The floor was not slippery to walk on. Even though Neary and Rodgers complained of the smell in the bathroom, he could not smell anything unusual. One might expect him to have noticed these things for Kaimakamis is also a registered builder.

11.Kaimakamis contacted the defendants’ son, Rocco Surace (Surace), on 13 May, having tried unsuccessfully on the night of 12 May. Surace instructed him to contact a company called Stegbar, which he did. Following that contact and after discussing options with Surace, Kaimakamis arranged for a handyman, Angelo Glavas (Glavas), to attend the premises.

12.On 14 May 2003 between 6.30 am and 7.30 am, Neary showered upstairs. By the time he wished to use the upstairs bathroom to clean his teeth, it was being used by Rodgers. He decided to use the downstairs bathroom. He entered the bathroom in bare feet. He cleaned his teeth at the hand basin. Having done so, he turned and started to walk. After taking a step or two his feet went from under him and he landed on his bottom. He got up. He was in pain. He did not look at the tiles. An examination of Neary’s evidence indicates that he did not see or feel the presence of water on any of the tiles in front of the hand basin. Try as he might, and he bordered on cross- examination, the best the plaintiff’s counsel could extract from the plaintiff was in this passage in re-examination:

Q: ….I want to ask in relation to your evidence yesterday that you slipped – and it was your evidence yesterday that you slipped on water that was on the tiles. How were you given that evidence? How did you know you slipped on water if your evidence today was that you did not observe water? – A: Well I would say from the underwater – in my mind it was from the underwater – it was a film of water under the tiles in my mind.

Q: Well perhaps in your mind – what do you mean by that? – A: Well there was definitely water under the tiles.

13.Kaimakamis spoke to Neary on 14 May and Rodgers on 15 May. On 16 May Neary again spoke to Kaimakamis. He wanted him not to contact Rodgers but only him. Although Neary sounded upset and unhappy he did not mention his fall or injuries to Kaimakamis. Neither Neary nor Rodgers mentioned the fall in their conversations with Kaimakamis on 14 and 15 May.

14.Glavas attended the house on 17 May. He had been instructed to install a rail and shower curtain in the bathroom. Following his arrival, Glavas discussed his proposed work with Neary and Rodgers. Two issues arose. First, Glavas was not a qualified plumber, only a handyman. Second, he could not guarantee that water would not reach the floor after he had installed a shower curtain. Neary and Rodgers did not want Glavas to install a curtain. He left the premises and contacted Kaimakamis.

15.Interestingly, Glavas vaguely recalled a mention of a fall and injury. He did not recall who was said to have fallen or when.

16.Following the fall and still in May 2003, a plumber of considerable experience, Peter Pritchard (Pritchard), attended the premises. He did so in response to a “job ticket” given to him at his work. He arrived at about 6.00 am. He did so on the way to his work. On arrival he met Neary, Rodgers, a barrister called Peter Murley (Murley) and Rodger’s son. Pritchard had known Murley for about 30 years and, in all likelihood, had met Rodgers socially. He was told of Neary’s fall when he arrived and the fact of the fall was confirmed in his mind by the way Neary walked.

17.Pritchard entered the bathroom and noted there was a pungent odour in the bathroom. He recalled that there was no water on the floor and the shower curtain was dry. He inspected the floor on his hands and knees and noted that:

(a) the tiles around the duct were loose and lifting;

(b)	some of the tiles in front of the bath tub were “drummy”, that is, they produced a hollow noise when tapped indicating that the tiles were loose;
(c)	some of the tiles directly in front of the basin were also drummy. These were the tiles one would stand on when using the basin;

(d) other tiles were loose including the tiles at the edge of the basin;

(e)	when he applied pressure firmly with the ball of his foot to tiles in three places, water came to the surface between the edge of the tile and the grouting. The three places were in front of the bath, in front of the basin and in front of the air conditioning duct;
(f)	the water sat on the edge of the tile and the grout. It sat along that edge for about a third to a half of the length of the side of the tile;
(g)	he looked for a floor waste or drainage hole under the bath tub and did not find one.

18.From the perspective of the cause of Neary’s slip, Pritchard was an important witness. He gave his evidence on 20 August 2008. The first reminder of the events of the day of his inspection in May 2003 came when he was telephoned on 19 August and asked to attend court to give evidence. Whether on that day or on the 20th he spoke to Neary’s counsel who told him “what it was about”. According to Pritchard, what the barrister told him raised a “vivid” memory of the day.

19.When Pritchard attended the premises, he expected that he would be asked to inspect and quote for some repairs. He did not render an account for his inspection. He was not asked to quote or undertake any repairs. He found out about Neary’s fall after he arrived. Other concerns raised were the prospect of Legionnaires disease and water entering the air conditioning duct.

20.At first sight, one might wonder how Pritchard could recall the detail of an inspection conducted some 5 years earlier. Pritchard claimed that he could recall every job he had been involved with. This may be so but the extent to which he remembers the details of those jobs must surely vary. What was unusual was that his inspection turned out to have been conducted at the request of a longstanding friend, who was present, and in the context of an alleged slip and fall in the bathroom.

21.In any event, Pritchard struck me as person with an excellent memory. This was brought home by his comment during cross-examination of the expressed fear about Legionnaires disease. He volunteered that information in the context of generalised cross-examination. This was a fear of Rodgers. If he remembered that point then there is credibility in his assertion that he remembered all of his jobs. Coupled with the manner of the giving of his evidence and its detail, I accept Pritchard as a credible witness and have confidence in the accuracy of his evidence.

22.Pritchard’s evidence was the subject of trenchant criticism by counsel for the first and second defendants. He submitted that Pritchard attended the premises for the sole reason of helping Neary concoct a case in negligence against those defendants. He also submitted that Pritchard’s evidence should be rejected in its entirety because it was an attempt to introduce expert evidence without the necessary compliance with the rules of court. Finally, he submitted that Pritchard’s evidence was unreliable because, despite claiming an examination of the floor on his hands and knees, he failed to see the drainage hole under the bath.

23.I accept that Pritchard attended the premises in the circumstances which he outlined in his evidence. Given that his presence was due to Murley’s suggestion and possibly for the purpose of litigation, I do not accept that he was present to concoct a negligence case. The only realistic litigation was a proceeding in a tribunal in relation to the tenancy agreement, which did occur shortly afterwards.

24.I thought that Neary’s counsel went to considerable lengths to avoid leading opinion evidence from Pritchard. A good deal of Pritchard’s evidence was taken in a voire dire. After the voire dire, no objection was raised as to the use of the evidence in the trial. In my opinion, the lack of objection was the proper course. Pritchard’s evidence was admissible. It is true that Pritchard was asked to give opinions but that occurred during cross-examination when counsel plainly saw a benefit in doing so.

25.If it existed, one might have thought that proof of the existence of a drainage hole in May 2003 would have been a simple matter. Pritchard did not see one and he looked. Dubois was unaware of one. Surace said there was one. On that evidence, especially that of Pritchard, I am satisfied that in May 2003 there was no drainage hole under the bath.

26.The first Kaimakamis knew of the fall was when he read about it in the letter dated 23 May, which he received on 26 May. The letter was signed by Neary and Rodgers and read:

“With reference to our leasing of the premises situated at 4B Barkly Street, Hughesdale we confirm that on 9th May, 2003 Mrs Rodgers spoke to the landlord and further on 12th May, 2003 spoke to your representative about the problems associated with the overflow of water under the tiles in the bathroom. Specifically she notified you both that the water was seeping up through the tiles onto the bathroom floor and into the gas heating ducts. An unhealthy and offensive odour emanating from the dank water was also pervading the house.

On 18th May, 2003 a ‘handyman’ engaged on behalf of the landlord attended the premises and indicated that he could not provide a remedy for the problem. Further, he said he was not a plumber and he was only sent to install a handrail. We were extremely concerned about the potential dangers from such leakage and the landlord’s failure to take any effective action to rectify the problem. We were therefore forced to obtain the services of the principal of South Melbourne Plumbing and Electrical Pty Ltd, a registered plumber, to obtain some advice as to what should be done to quell the problem. He pointed out to us both the danger to the electrical areas of the house from the water leakage and the potential danger from the water in the ducts as he was able to see, as was the ‘handyman’, that the water in heating ducts was boiling.

We have experienced health problems in so far the atmosphere in the premises has been affected by the dank water lying under and emanating through the tiles in the bathroom. Mr Neary was injured on 14th May, 2003 when he fell as a result of the leakage of water through and onto the tiles in the bathroom. He is presently undergoing medical treatment for the continuing injuries he suffered as a result of the fall.

It is term of the lease that tenants have quiet enjoyment and the landlord take all reasonable steps to ensure that the tenants are able to use the premises, and they are in a fit and proper state to be inhabited. As set out above you have failed to ensure the premises are fit, proper and safe for habitation despite our requests that you rectify the problems therein.

Accordingly, we propose to terminate the lease as of 31st May, 2003 and shall hold both the agency and the landlord responsible for breach of the Residential Tenancy Agreement. We also require the immediate return of our bond.”

27.I have quoted this letter in full because of the limited attention given to the fall and its aftermath compared with the somewhat greater attention paid to the potential dangers from leakage. But seen in the context of the evidence generally, the somewhat limited and vague attention given to the fall may be explained by an inability, at that stage, to say how water travelled from the wall to the tiles near the basin.

28.Neary and Rodgers vacated the premises on 31 May. The keys were returned to the agent on 2 June.

29.The defendants point to the failure of Neary to mention his fall to Kaimakamis until the 23 May letter and assert that Neary’s complaint was planned, vexatious and aimed at financial reward. In light of the evidence, I do not consider any of those assertions is correct. As will be seen below, Neary sought medical assistance shortly after the fall and continued to do so until September. The failure to raise the fall earlier is partly explained by Neary’s inability to say what caused it.

30.Surace acted as his parents’ agent in relation to the premises because he had a better command of spoken English. He inspected the house after Dubois vacated. He felt that Dubois had kept the house in impeccable condition and the bathroom looked like it was “very new”. He did not notice the presence of surface water or any movement in the tiles when walked on.

31.There has been no change to the bathroom since May 2003. Despite the presence of tenants since, there has been no complaint about the condition of the bathroom. There has certainly been no complaint of a fall before or since May 2003 except for that of Neary.

Engineer’s opinion

32.Leonard Cubitt (Cubitt) is an experienced and highly qualified engineer. In 2007, he was engaged by the plaintiff’s solicitors to advise on the presence of water on the surface of the tiles at the time of the plaintiff’s fall. He did not inspect the bathroom. His sources of information included two conversations with Neary, three photographs of the bathroom. Save in one respect, he gave these opinions, which I accept:

(a)	the lack of curved tiles abutting the wall meant that water could seep under the tiles;
(b)	water lying on top of the tiles of this bathroom would permeate or seep through the grouting to the underside of the tile. Grout is a porous cement paste mixture;
(c)	grooves are formed in the glue on the underside of tiles owing to the tiling process. Where there are grooves the tiles do not sit flush with the substrate and there is space for water to sit;

(d) water could seep after one or more “floodings” following showers;

(e)	most of the water would lie in the region between the substrate and the tile and some would evaporate;
(f)	water could remain between the tile and the substrate for days, possibly weeks or months. Even though the bathroom had not been used for showering for 12 days before the fall, there was a very high probability that water remained

between the tile and the substrate;

(g)	the presence of water between the tile and the substrate would cause some of the tiles to lift;
(h)	if the substrate is timber, then, at some stage, the timber would start to rot and would give off an odour, which smelt like stagnant water or rotting timber or algae and moss;

(i)    the mechanism of lifting tiles is that the substrate expands upon wetting and buckles;

(j)	the lifting of tiles allows the storage of more water between the substrate and the tiles and exacerbates the problem;
(k)	where there are lifting tiles, walking on them will cause them to move slightly. Water on the underside of the tile will be pumped through the grout to the edge of the tiles. The probability of this occurring is high;
(l)	he could not say whether these bathroom tiles had a lower coefficient of friction than the Australian standard for bathroom tiles or were more slippery to walk on because he could not tell whether they were glazed or not;
(m)	the presence of water on the surface of a tile decreases the friction level (hydrodynamic lubrication);
(n)	an extremely thin layer of water is sufficient to cause hydrodynamic lubrication (one thousandth of an inch);
(o)	there is a greater risk of slipping if one has bare feet as opposed to wearing shoes;
(p)	in the absence of water on the tile or tiles at the time of the fall, the tiles were not slippery and provided good traction.

33.Cubitt reasoned as follows:

(a) if the floor had been dry Neary would not have slipped;
(b) the presence of water on the floor provided the conditions whereby he could slip;
(c) since he did slip, there was water on the floor.

34.The defendants criticise Cubitt’s evidence on the basis of his failure to inspect the bathroom. They submit that an expert’s opinion must be based upon matters within the expert’s own observation. Further, they submit that experts are subject to the same rules of evidence as non-expert witnesses and may not give evidence which is in the form of hearsay.

35.The first proposition is incorrect. An opinion may be given in circumstances where an inspection has not been made. The failure to inspect may affect the weight of the opinion but not its admissibility. The second proposition is partly correct. An expert must state the substratum of facts upon which he or she relies in order to give an opinion. Some of those facts may come from personal observation (e.g. the clinical examination by a medical practitioner of a patient). But some facts may be communicated to the expert by others (e.g. a patient giving his or her history). When the expert recites those latter facts in evidence, he or she is not doing so for a hearsay purpose but rather to make clear what it is that was assumed to be correct. A passage from Makita (Aust) Pty Ltd v Sprowles[2] deals with these aspects:

[2] (2001) 52 NSWLR 705 at [64] per Heydon JA.

“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material.”

36. There was nothing in the evidence of Cubitt which warranted rejection.

37.Cubitt’s evidence did not explicitly reveal how water migrated from the under tiles near the wall to tiles near the wash basin. One was left to suppose that the alignment of grooves in the glue provided a channel for the water.

38.It is difficult to accept Cubitt’s conclusion that the tiles provided good traction when dry because he knew so little about them. Looking at photographs, he felt that the red and white tiles appeared to have a high gloss.

Medical opinion

39.Following his fall, Neary attended a general practitioner, Joseph Feiber (Feiber), on 16 May 2003. Feiber saw him on another four occasions with the last on 15 July 2003. He performed acupuncture on two of those occasions and prescribed Panadeine Forte and Celebrex.

40.Also on 15 July 2003, Neary attended upon another general practitioner, Stephen Gost (Gost), at a different medical practice. A CT scan was arranged and performed. Gost last saw Neary on 5 September 2003.

41.Neary was examined by an orthopaedic surgeon, Stanley O’Loughlin (O’Loughlin), at the request of his solicitors on 3 December 2004. Following an examination which elicited complaints of tenderness and restrictions of lumbar spine movements and viewing the 2003 CT scan, O’Loughlin concluded that:

(a) Neary had a grade 1 spondylolisthesis at L4/5. He was most likely born with this defect;

(b) his fall aggravated this area of weakness and instability;

(c) it caused further straining of the L4/5 disc and possibly the L5/S1 disc. Both discs showed narrowing on the scan with considerable narrowing in the L4/5 disc;

(d) the straining of the L4/5 disc and L5/S1 disc causes pain;

(e) the pain experienced in the right thigh emanates from a disc or discs and is not due to nerve root irritation.

42.O’Loughlin re-examined Neary on 15 July 2008, again at the request of his solicitors. His examination revealed limited movement in the lumbar spine. No further radiological examination was available. His opinion remained unaltered as to the diagnosis[3]:

[3] Report dated 15 July 2008 at p 4.

“Mr Neary has degenerative changes affecting his lumbar spine at the L4/5 and L5/S1 levels. He has a pars defect at L4 causing a spondylolisthesis of L4 on L5. In my opinion [in] the fall he had aggravated the spondylolisthesis and may have caused a minor degree of slip, but certainly it has aggravated the disc degeneration at L4/5 and L5/S1.”

43.Because there had been very little change in Neary’s condition over the 5 years since the fall, O’Loughlin did not think there would be any further significant change in the future.

44.At the request of the defendants’ solicitors, Neary was examined by an orthopaedic surgeon, Ian Jones (Jones), on 2 June 2008. At the time of his examination, Jones possessed copies of the reports of Feiber, Gost and O’Loughlin together with a report of the September 2003 CT scan. Among other things, Jones concluded:

(a) the fall aggravated Neary’s congenital lower back condition;

(b)	the aggravation was permanent in terms of extremes of physical activity requiring excessive bending and lifting;
(c)	his prognosis was one of persisting recurrent episodes of back pain and muscle spasm, which is likely to deteriorate in the long term;
(d)	he has a partial incapacity to undertake his normal job as a plasterer and the activities of daily living have been curtailed.

45.As can be seen, O’Loughlin and Jones are essentially of the same view. The fall aggravated the condition of Neary’s lower back. There is a certain vagueness about which part was aggravated but that is understandable with this type of injury. The aggravation of the underlying conditions is permanent. It causes intermittent pain and muscle spasm. It is physically restricting. Given Neary’s age (54), he faces a lengthy future of some pain, muscle spasm and restriction.

Relevant principles
Negligence

46.In Jones v Bartlett[4], the Court examined the liability of the owners of a house to a child of their tenants who injured himself by carelessly putting his knee through a glass door in the house.

[4] (2000) 205 CLR 166.

47.The following propositions emerge from the judgments in that case:

(a)	a landlord owes a tenant a duty to take reasonable care to avoid foreseeable risk of injury to the tenant[5];
(b)	the content of a landlord’s duty to the tenant is to put and keep the premises in a safe state of repair[6] or reasonably fit for habitation as a domestic residence[7];
(c)	premises will not be reasonably fit for habitation as a domestic residence where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury[8];
(d)	a landlord must not let premises that suffer defects which the landlord knows or ought to know makes the premises unsafe for habitation as a domestic residence[9];
(e)	the duty 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 takes reasonable steps to remove them or to make the premises safe[10];
(f)	a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. Many domestic items are dangerous. Ordinarily, they are dangerous when misused[11];
(g)	if a danger arises only where acts are performed that were not authorised or contemplated by the tenancy then ordinarily there will not be a dangerous defect12;
(h)	where the existence of a dangerous defect is a possibility (even if realised after someone is injured) the landlord is only required to undertake those steps that would be taken in the course of ordinary reasonable human conduct13;
(i)	the nature of those steps will, among other things, depend on whether an ordinary person in the landlord’s position would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps14.

[5] At [168] per Gummow and Hayne JJ.

[6] At [88] per Gaudron J.

[7] At [171] per Gummow and Hayne JJ.

[8] At [173] per Gummow and Hayne JJ. This introduces the concept of “dangerous defects”.

[9] At [173].

[10] At [173].

[11] At [178].

Residential tenancies agreement

48.Neary alleges a breach by the owners of a term of the tenancy agreement15. Although a complete copy of the agreement was not tendered, I assume that the agreement was in the prescribed standard form. This form provides that a landlord must ensure that the rented premises are maintained in good repair16. This is a contractual expression of the statutory duty contained in s 68(1) of the Residential Tenancies Act 1997.

49.What is meant by the words “good repair”? Those words describe a state and not of a mode by which that state has been arrived at. A house in good repair is a house to which no repairs need to be done. The nature and extent of the repairs necessary to bring a house to a state of good repair depends upon the age and nature of the house17.

Voluntary assumption of risk

50.In order to rely upon the defence of voluntary assumption of risk, the defendants must establish that Neary freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it18.

Discussion

51.Factually, there are two issues to be resolved: (a) whether there was a fall;

(b) whether the fall was caused by Neary slipping on surface water, which came from the underside of a tile or tiles.

52.In relation to (a), the evidence of a fall is compelling. Neary’s description of his fall is credible even though his failure to look at the tiles after the fall is most unusual. In part, the occurrence of the fall is corroborated by Rodger’s account of hearing him swearing at the time and, when she went downstairs, noting that he was holding his lower back as though in pain. There is additional corroboration in his seeking medical treatment promptly.

53. In relation to (b), there are considerations each way.

12 At [179]. 13 At [186]. 14 At [186]. 15 See paragraph 13 of the Amended statement of claim.

16 See clause 5 of Form 1 of the Schedule annexed to the Residential Tenancies Regulations 1998.
17 See Lurcott v Wakely and Wheeler [1911] 1 KB 905 at 916-919 per Fletcher Moulton LJ.
18 Letang v Ottawa Electric Ry Co [1926] AC 725 at 731.

54.From Neary’s perspective, Cubitt’s evidence provided a mechanism by which water reached the surface. It did not provide a mechanism for the migration of water along the space between the underside of the tile and substrate to a corresponding position or positions opposite the wash basin. Nevertheless, the evidence of Pritchard and Rodgers established the presence of water beneath some of the tiles and its appearance at their edges. However, I do not accept the first premise of his syllogism that if the floor had been dry Neary would not have slipped. Since he could not say whether the tiles were glazed or not, he could not say legitimately that Neary would not have slipped if the tiles were dry.

55.The lack of use for the previous 12 days eliminates the presence of surface water coming from a recent use of the shower. There is no suggestion that Neary splashed water while washing his teeth or dropped or spilled some other substance on the floor.

56.From the defendants’ perspective, Neary does not know what he slipped on except that both feet went from under him. He did not inspect the floor after his fall. No one did at the time. His failure and that of Rodger to mention the fall to Kaimakamis earlier suggests that neither person linked water on the floor with the fall at that stage. The issue was not raised until the letter of 23 May, which is sent after Pritchard’s visit. I see nothing more in the failure than that.

57.By pressing tiles with the balls of his feet, Pritchard was able to squeeze water through the join between a tile’s edge and grouting. One would expect that the pressure he exerted to achieve that effect was greater than that exerted by Neary in walking and standing on the tiles with bare feet. By pressing a tile Pritchard achieved a small amount of moisture along the edge of a tile and the adjacent grouting. No pool of water was formed.

58.Kaimakamis examined the bathroom on 12 May. He did so in response to a complaint. He is a registered builder. By pressing his foot into tiles, he experienced movement. He did not see water coming to the edge of the tiles. He did not hear the sound of water under the tiles when pressed.

59.One aspect of his evidence suggests that in order to bring water to the surface considerable pressure is necessary. Pressing a tile with one’s toes is insufficient. What is needed is the use of the balls of a person’s foot.

60.The evidence of Pritchard and Kaimakamis suggests that the pressure exerted by Neary in walking and standing on these tiles would have been insufficient to cause water to reach the surface.

61.In about 8 years of tenancy, there had been no other reported fall in this bathroom. This is a circumstance which strongly suggests that Neary’s fall was not due to the presence of water. Nothing has been done to the bathroom since May 2003. One would expect the state of the tiles to worsen and present a greater risk of slipping to tenants. But there is no suggestion that that has been the case.

62.The burden of proof lies on Neary. There is evidence which raises the possibility of Neary slipping on surface water. There is evidence which renders that possibility unlikely. The weight of the evidence is against establishing the matter in (b) as a fact and I do not find it as a fact. Some of the tiles in the bathroom were defective. The bathroom floor was not in good repair. But the causal link has not been established between the fall and, broadly, the defective tiles or the fall and the lack of good repair. This failure to establish a causal link is fatal to Neary’s claim against the defendants.

63. Since an amount of evidence was led, I will deal with the quantum of his claim.

64.Owing to the fall Neary sustained an injury. The nature of the injury is described by O’Loughlin and Jones. Its prognosis is also described by them. Neary described how the injury has affected him. To a significant degree, this was corroborated by Rodgers. I accept their evidence in that regard. Under the head of general damages, it is sufficient to say that general damages would have exceeded the jurisdictional limit of $40,000 and, if he had succeeded, would have been entitled to an order for $40,000.

ORDERS:

65.Neary’s claim against the first and second defendants will be dismissed. I will reserve the question of costs with liberty to any party to apply, upon reasonable notice to the others, to have that issue determined.

66.Subject to any submission, Neary’s claim against the third defendant will be struck