Oxman v Raphael Road Pty Ltd
[2024] WADC 3
•24 JANUARY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: OXMAN -v- RAPHAEL ROAD PTY LTD [2024] WADC 3
CORAM: PRIOR DCJ
HEARD: 28 FEBRUARY - 3 MARCH 2023 & 29 JUNE 2023 WITH FURTHER SUBMISSIONS FILED 13 JULY & 4 AUGUST 2023
DELIVERED : 24 JANUARY 2024
FILE NO/S: CIV 4150 of 2018
BETWEEN: ROY WALLACE OXMAN
Plaintiff
AND
RAPHAEL ROAD PTY LTD
First Defendant
AWA Electrical
Second Defendant
Catchwords:
Tort - Limitation of actions - Negligence - Occupiers' liability - Statutory duty - Contract - Causation - Injury from electric shock - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5D
Electricity Regulations 1947 (WA), reg 12, reg 14, reg 15A
Limitation Act 2005 (WA), s 13(1)
Occupiers' Liability Act 1985 (WA), s 2, s 5, s 9
Residential Tenancies Act 1987 (WA), s 42(2)(b), s 42(2)(c)
Rules of the Supreme Court 1971 (WA), O 21 r 5(2)
Result:
Plaintiff's claims dismissed
Judgment for the first defendant
Representation:
Counsel:
| Plaintiff | : | Mr B L Nugawela |
| First Defendant | : | Mr G J Pynt |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Tan & Tan Lawyers |
| First Defendant | : | Greenland Legal Pty Ltd |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Byrne v Australian Airlines Ltd;Frew v Australian Airlines Ltd (1995) 185 CLR 410
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228
Hoffmans (A Firm) v Ahmed [2021] WASCA 210
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
O'Connor v SP Bray Ltd(1937) 56 CLR 464
Rankilor v City of South Perth [2016] WASCA 29
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Seiffert v The Prisoners Review Board [2023] WASCA 15
The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40
Willmont Forests Ltd (Receivers and Managers Appointed) (In Liq) v Armstrong Dubois Pty Ltd [2016] VSC 61
PRIOR DCJ:
Introduction
On the morning of 3 November 2015 while taking a shower at his home at 58 Edward Street, Kenwick (the Property), Roy Oxman (the plaintiff) suffered an electric shock when he touched the shower rose (the Incident).
The plaintiff's partner, Kathryn Karu found him shortly after the Incident, and drove him to Sir Charles Gairdner Hospital for medical treatment. Later that day, when the plaintiff and Ms Karu returned to the Property electricians engaged by the first defendant's (defendant) property agents were in attendance.
At all material times, the plaintiff and his partner were occupiers of the Property as tenants. The defendant had purchased the Property in December 2013. The plaintiff and his partner entered into a lease agreement for 30 months with the defendant on 1 October 2015 (the Lease). In September 2015, the defendant engaged Mavin Real Estate, the former third defendant as property agents for the Property (the Property agent).[1] The plaintiff and Ms Karu took occupation of the Property on 30 October 2015.
[1] Exhibit 35.
At the time the plaintiff and Ms Karu moved into the Property, there were two Residual Current Devices (RCDs) on the Property's switchboard. At the time of the Incident the water pipe to the hot water system at the Property were cable tied to the electrical cable for the hot water system. The power socket that the hot water system was connected to was not RCD protected. Following the Incident, electricians put in an RCD for the power socket to the hot water system.
An RCD is defined in reg 12 of the Electricity Regulations 1947 (WA) (Regulations) as a device designed to isolate supply to protected circuits, socket outlets or electrical equipment in the event of a current flow to earth that exceeds a particular value.
The parties by consent played a short YouTube film of 2 minutes and 46 seconds (Exhibit 36). This film explained that RCDs can plug into socket outlets or sit on fuse boards and if there is a fault or leak in the electricity flow, the RCD switch is activated, stopping the flow of electricity.
The plaintiff left the Property prior to the expiration of the Lease due to the government resumption of the relevant land. The Property was acquired by the Perth Transport Authority in February 2017 and the house on the Property was demolished. As a result, the various electrical installations at the Property when the Incident occurred, are no longer available for inspection or photographing.
None of the factual matters referred to in [1] - [7] are in dispute.
Default judgment for damages (to be assessed) has already been obtained in favour of the plaintiff against the second defendant (AWA Electrical) who was engaged by the first defendant to do electrical work on the Property on 13 December 2013. A prior action brought by the plaintiff against a third defendant (Liveinwa Pty Ltd) has been discontinued.
The plaintiff's case
The plaintiff claims his electric shock was caused by the deteriorated electrical cable being tied to the hot water system pipe and the electric current then leaking from the cable to the water pipe which caused the plaintiff to suffer an electric shock when he touched the shower rose. As will be seen, the defendant denies that this is so, contending that alternative causes for the shock suffered by the plaintiff are more likely.
The plaintiff claims that the defendant is liable in damages for:
1.breach of statutory duty;
2.breach of contract;
3.negligence; and
4.occupiers' liability.
The claim for breach of contract relies upon an asserted breach of an oral agreement that was said to have been entered into between the plaintiff and the defendant in August or September 2015. The plaintiff asserts that in the course of discussions between him and the defendant's director, the defendant agreed to obtain an electrical inspection report that certified that the Property's electrical wiring was safe and provide it to the plaintiff before the plaintiff signed the Lease and/or took occupancy of the Property from the defendant. The plaintiff claims this oral agreement constituted a contractual warranty or collateral contract. No electrical inspection report was provided to the plaintiff before he occupied the Property.
The plaintiff alternatively claims that the defendant owed him a statutory duty pursuant to reg 12, reg 14 and/or reg 15A, to ensure that RCDs were properly installed in accordance with the Australian/New Zealand Wiring Rules 3000:2007 (the Wiring Rules), before leasing the Property to the plaintiff. The plaintiff claims the statutory duty required not only that at least two RCDs be installed at the Property, but also that the RCDs protected all power sockets and lighting final subcircuits. The plaintiff claims the power socket the hot water system was connected to was not RCD protected. The plaintiff further claims the Wiring Rules required that the electrical cable connecting the hot water system to its power outlet be at least 25 mm away from the hot water system's water pipe and the defendant did not comply with this statutory duty owed to him. The plaintiff says that the defendant knew, or ought reasonably to have known of these statutory duties.
The plaintiff further claims that the defendant as landlord of the Property, was bound by the obligations of an occupier within the meaning of s 2, s 5(1) and s 9 of the Occupiers' Liability Act 1985 (WA) (OLA) and has breached those obligations. The plaintiff further claims the defendant had a contractual duty to maintain the Property under cl 21.3 and cl 22 of the Lease and pursuant to s 42(2)(c) of the Residential Tenancies Act 1987 (WA).[2]
[2] The plaintiff does not pursue the allegations arising out of the need for 'urgent repairs' in par 13(b) of the amended statement of claim, see par 21 of the plaintiff's amended opening submissions and s 42(2)(b) of the Residential Tenancies Act.
Finally, the plaintiff claims the defendant was negligent in that he failed to fulfill a duty he owed to the plaintiff to take such care as was reasonable in all the circumstances to ensure that persons living in the Property would not suffer injury or damage by reason of any danger which was due to the state of the Property or anything done or omitted to be done on the Property. The breaches of the duty of care owed by the defendant to the plaintiff are particularised as follows:
(a)failed to ensure that the Property was safe for tenants, such as the Plaintiff;
(b)failed to ensure that the Property had the appropriate and correct residual current device and or devices (RCD) protection;
(c)failed to ensure that the power point where the hot water system was plugged into had RCD protection;
(d)failed to ensure that the hot water pipe and power cord supplying power to the hot water system were not tied together so as to allow electrical current to flow through the hot water pipe to the shower head;
(e)failed to carry out adequate checks or inspections to detect dangers such as those which caused the Accident; and
(f)failed to carry out the non-delegable duty and responsibility of ensuring that adequate maintenance and repair was conducted over the property in particular the hot water system.
The defendant's case
The defendant denies all causes of action and does not admit that the plaintiff's injuries were caused by anything done or omitted to have been done by him.
The defendant asserts that in any event, the plaintiff's claims for breach of contract and breach of statutory duty are outside the six-year limitation period and are therefore statute barred.
In relation to the claim for breach of contract, the defendant states it never agreed with the plaintiff to obtain an electrical inspection report that certified the Property's electrical wiring was safe.
The defendant in response to the plaintiff's claim of breach of statutory duty admits it owed a statutory duty to the plaintiff, as described by reg 14, but submits that it had complied with the relevant statutory duty. The defendant submits the Regulations only required it to ensure two RCDs were installed on the Property before the plaintiff occupied the Property and two RCDs had been installed on the Property. The defendant denies the statutory duty required the defendant to ensure the power socket that the hot water system was connected to, was RCD protected when the plaintiff occupied the Property.
The defendant in response to the plaintiff's claim against it under the OLA denies it was the 'occupier of the Property' for the purpose of the OLA and further denies it owed the plaintiff a duty of care under the OLA.
The defendant admits it owed the plaintiff a common law duty to take reasonable care not to cause the plaintiff reasonably foreseeable harm, but the defendant denies it breached this duty. The defendant denies that the electrical cable the hot water system was connected to constituted a relevant danger.
In response to the plaintiff's claims of negligence and breach of statutory duty, the defendant denies any such breach occurred, or if it did, that it caused or contributed to the Incident. The defendant submits an RCD protecting the power socket that the hot water system was connected to, or an RCD protecting any other circuit that was connected at the Property, would not have prevented the plaintiff from suffering an electric shock, or tripped when the plaintiff suffered an electric shock, as the voltage available when the plaintiff suffered the electric shock, was too low, and maintains that the hot water system had nothing to do with the electric shock suffered by the plaintiff.
Issues for determination
The issues that arise from the matters in contest between the parties are as follows:
1.Are any of the plaintiff's claims of breach of contract and breach of statutory duty statute barred?
2.What caused the plaintiff's electric shock?
3.Would an RCD have prevented the plaintiff suffering the electric shock or reduced the severity of the plaintiff's electric shock?
4.Is the defendant, as owner of the Property, legally responsible for the plaintiff's electric shock by reason of one or more of the following breaches by the defendant:
(a)breach of statutory duty;
(b)breach of contract;
(c)negligence in any of the six ways particularised in the amended statement of claim at pars 10(a) - 10(f); and
(d)occupiers' liability.
Are any of the plaintiff's claims statute barred?
The defendant pleads in its defence that the plaintiff's claims for breach of statutory duty and breach of contract are statute barred. The defendant argues that the indorsement of claim on the writ of summons issued on 2 November 2018, failed to seek damages for breach of statutory duty and in relation to the claim for damages for breach of contract, argues that the plaintiff failed to identify the contract it claimed was breached by reference to parties, nature, content or date.
The plaintiff in his written closing submissions and responsive submissions, does not address whether the claims for breach of contract and breach of statutory duty are statute barred as being outside the limitation period.
The plaintiff's indorsement of claim on the writ of summons states the following:
The plaintiff's claim is for damages and resultant loss pursuant to personal injuries sustained by him on 3 November 2015, which were caused either jointly or severally by the negligence and/or breach of contract and/or of the Civil Liability Act 2002 and/or breach of the Occupiers Liability Act 1985 by the First Defendant and/or the Second Defendant and/or the Third Defendant.
AND THE PLAINTIFF CLAIMS:
(a)Damages
(b)Interest on special damages at the rate of 6% per annum computed from 3 November 2015 to judgment pursuant to section 32 of the Supreme Court Act.
Given the Incident was on 3 November 2015, the defendant pleads the claims became statute barred on 3 November 2021.[3]
[3] Amended defence filed 20 February 2023, general limitation of six years - s 13(1) of the Limitation Act 2005 (WA).
On 7 July 2020 the plaintiff filed a statement of claim. The defendant submits that in this pleading, the plaintiff abandoned his claim for damages for breach of contract against the defendant.
On 7 February 2023 Gething DCJ gave the plaintiff leave to amend his statement of claim for damages for breach of statutory duty and breach of contract. The amended statement of claim was filed on 9 February 2023.
The defendant submits the amended statement of claim sought to add two new causes of action after the limitation period had already expired.
The principles for consideration as to whether the causes of action are statute barred were summarised in Victoria in Willmont Forests Ltd (Receivers and Managers Appointed) (in liq) v Armstrong Dubois Pty Ltd[4] and in Western Australia, Belgravia Nominees Pty Ltd v Lowe Pty Ltd.[5]
[4] Willmont Forests Ltd (Receivers and Managers Appointed) (in liq) v Armstrong Dubois Pty Ltd [2016] VSC 61 [30] (Derham AsJ).
[5] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [46].
Following Belgravia Nominees Pty Ltd v Lowe Pty Ltd, the Rules of the Supreme Court 1971 (WA) were amended. Order 21 r 5(2) now states:
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
The indorsement of claim on the writ of summons specifically pleads negligence. The original statement of claim particularised the alleged negligence. The amended statement of claim maintains the claim of negligence but particularises breach of statutory duty as a form of negligence.
In my view, the indorsement of claim on the writ of summons claiming the defendant was negligent, encompassed both the common law negligent claim and the breach of statutory duty claim. The statutory obligations that applied to the defendant are relevant in determining the existence and scope of the care owed to the plaintiff.
I am fortified in this view by Hoffmans (A Firm) v Ahmed[6] which makes it clear that the amendment to the claim that occurred in this case can be readily described as a particularisation, clarification or expansion of the cause of action originally described, namely a claim in negligence. As the court said at [28] 'the court is, in any event, entitled to look beyond the terms of the writ'.
[6] Hoffmans (a firm) v Ahmed [2021] WASCA 210.
The plaintiff specifically pleaded a breach of contract in the indorsement of claim on the writ of summons. It is clear from par 6 of the original statement of claim headed 'Particulars of Oral Agreement', that this claim was not abandoned. It was, in fact, expressly pleaded. Further, particulars of the basis for the claim were pleaded in the amended statement of claim.
Accordingly, I reject the assertion that any of these claims are statute barred.
Summary of witness evidence
At the trial the plaintiff called four witnesses:
1.Roy Oxman, the plaintiff;
2.Kathryn Karu, the plaintiff's partner;
3.Linda Stone, a former tenant of the Property; and
4.Michael Sage, an electrical expert.
The defendant called three witnesses:
1.Simon Norrish, a director of the defendant company;
2.Kermal Holic, a licensed electrician; and
3.Rene Meunier, a licensed electrician.
There were 55 exhibits tendered.
I will outline the effects of the evidence of each material witness on the major factual topics, namely: the parties' pre‑Lease discussions; the Incident; post-Incident examinations and enquiries; and subsequent events.
Pre-Lease discussions
Roy Oxman
In 2014 Mr Oxman was made aware that the Property was available for rent. He believed the Property would be good for his transport business, for parking his trucks. Mr Oxman sent an email to Simon Norrish to inquire about the Property.
In mid to late August 2015, Mr Oxman received a phone call from Mr Norrish. Mr Oxman was still interested in the Property. Mr Oxman arranged a day to view the Property with Mr Norrish.
When Mr Oxman attended the Property with Mr Norrish, he was told by Mr Norrish there had been renovations done to the Property by the previous tenant, but Mr Norrish was not happy because the previous tenant never notified him about the renovations. He pointed out the renovations to Mr Oxman. Mr Oxman said the kitchen renovations did not look like a professional installation.
Mr Oxman asked Mr Norrish if the kitchen installation had been done by a licensed electrician or contractor. Mr Norrish said no, it was done by the previous tenant. Mr Oxman asked Mr Norrish again if the job was done by a licensed electrician. Mr Norrish again said no.
Mr Oxman then asked Mr Norrish whether the Property had RCD protection. Mr Norrish said he was unsure. This prompted Mr Oxman to ask Mr Norrish to get an electrician to come out and do an inspection on the Property and make sure that the renovations that were carried out to the Property were done up to code so it was safe.
Mr Oxman took photographs of the Property for his partner, Ms Karu. A photograph he took of the exterior of the Property[7] shows the hot water system, but is taken some considerable distance from the Property.
[7] Exhibit 17.
At the meeting, Mr Oxman told Mr Norrish he would not sign the Lease without an Electrical Safety Certificate (Certificate) or check being made. Mr Norrish assured him that he would get that done for him.
In late September 2015, after Mr Oxman had requested confirmation from him in a text message, Mr Norrish replied by text message advising the inspection was done. Mr Oxman said he received the text just before he signed the Lease.
Mr Oxman said he did not follow up to see if the safety check was actually completed or receive a Certificate. Mr Oxman said he did not follow up on an inspection report or Certificate because he thought Mr Norrish was 'honest enough' to obtain the Certificate as he had brought the renovations to Mr Oxman's attention in the first place. He believed Mr Norrish had done so.
Mr Oxman could not find his old mobile telephone that contained the text message from Mr Norrish.
Mr Oxman and his partner moved into the Property on 30 October 2015 after signing the Lease on 1 October 2015.
Mr Oxman identified a property inspection report sent to him by Bronwyn Pollitt of Mavin Real Estate. He said he wrote some comments on the report and sent it back to her. No handwritten comments or signatures are on this exhibit.[8]
[8] Exhibit 7.
Mr Oxman's evidence as to pre‑Lease discussions was challenged in cross‑examination and was, to some extent, contradicted by the following evidence given on behalf of the defendant.
Simon Norrish
Simon Norrish is a property consultant and licensed real estate valuer. He has been a director of the defendant since 2012.
Mr Norrish gave evidence that the defendant purchased the Property on 16 December 2013 as a long‑term investment.
At that time he insisted that RCDs and wired smoke alarms were installed before settlement as per the Regulations. This was confirmed by the defendant's lawyer in an email to him dated 16 December 2013 attaching a Certificate (December 2013 Certificate).[9] The purchase of the Property by the defendant was settled on that day.
[9] Exhibit 34.2.
Mr Norrish could not recall any conversations he had with Mr Oxman between his first contact with him and when Mr Oxman and his partner signed the Lease. He stated that he had handed over everything to Bronwyn Pollitt.
Mr Norrish said he had a vague recollection of meeting Mr Oxman at the Property in August 2015. Mr Norrish could not recall any conversation at this meeting. Very soon after this meeting, Mr Norrish put Bronwyn Pollitt, who was employed by Mavin Real Estate, in charge of managing the Property. Mr Oxman corresponded with Ms Pollitt. He could not recall any email communication he had with Mr Oxman after Mr Oxman moved into the Property. On 7 September 2015, Mr Oxman signed a Mavin Real Estate application to enter into a residential tenancy agreement in relation to the Property.[10]
[10] Exhibit 1.
Mr Norrish said the contract for sale of the Property was signed on 13 November 2013. He said he relied on the settlement agent and lawyers for compliance with the requirements of any rules and regulations.
His settlement agent sent him the Certificate. In late December 2013 he thought the legal requirements for RCDs were the same for a property transfer as they were for a lease. Mr Norrish said he relied on the property agent to handle this issue.
When the Property was leased to Mr Oxman and Ms Karu, Mr Norrish said he relied upon the December 2013 Certificate he had been provided for the RCD compliance.
Exhibits 30 and 35 signed by Mr Norrish indicate that he was aware in 2013 and 2015 that at least two RCDs were required for the Property pursuant to the Regulations.
Mr Norrish said he was aware that the previous tenant did some renovations to the kitchen of the Property.
The Incident
Mr Oxman gave evidence that he had his first shower in the Property on Tuesday morning, 3 November 2015. As explained later, I accept his evidence as to what then occurred.
Mr Oxman got undressed and went into the shower. He turned on the taps. As he touched the chrome shower rose (head) to adjust it, he received a shock. His back arched right back and he felt pain all through his body. He said his back bent like it was going to break and he could not breathe. He could not let go of the shower head. He eventually collapsed on the floor after losing grip of the shower head. He stated the shock caused his left arm to wrap unnaturally around the left-hand side of his body.
Mr Oxman then dragged himself out of the shower and into the next room.
When he could move again, he went straight to the meter box, flung it open with a broomstick and flicked the power off.
Kathryn Karu
Ms Karu gave evidence that she did not hear Mr Oxman go into the shower in the Property as she was asleep. She woke up to a wailing sound and then went running into the room Mr Oxman was in. Mr Oxman was unable to talk to her. He was lying on his side just outside the bathroom. She noticed that the water in the shower was still running. He was eventually able to tell her he got an electric shock and not to go near the shower.
Ms Karu then drove him to Sir Charles Gairdner Hospital. After tests were conducted, Mr Oxman said he was allowed to leave the hospital.
Ms Karu called Bronwyn Pollitt and informed her of the Incident.
Post-Incident examinations and enquiries
Mr Oxman
As Mr Oxman left the hospital he received a telephone call from a man from Western Power enquiring about the Incident.
When he got home, three electricians from KH Signature Electrical, Kemal Holic, Rene Meunier and Ben Hughes, together with several employees of Western Power were waiting outside the house.
The Property agent and owner did not follow up about the Incident.
Mr Holic showed Mr Oxman the hot water system and told him the electrical cable was not meant to be in contact with the hot water pipe.
Mr Oxman looked at the electrical cable. It was old, cracked, chalky and dusty. It was all sun-damaged. The electrical cable was cable tied to the hot water pipe with five black plastic cable ties. Mr Holic then instructed Mr Rene Meunier, one of his electricians to put the electrical cable in a conduit and Mr Oxman saw him starting to cut off the cable ties.
When Mr Oxman went to check at a later stage, the electrical cable was in a plastic conduit. Mr Oxman did not like how close the electrical cable was to the pipe. Mr Oxman then requested an employee from KH Signature Electrical to move the electrical cable so it would not be near the water pipe. Mr Oxman said the electrical cable was moved after the new hot water system was installed. He identified this on Exhibit 15, a photograph he took on 4 April 2017.
Mr Oxman gave evidence that after the Incident he used the power socket that the hot water system was connected to semi-regularly. He said he used it to plug in floodlights when he was having a barbeque and on a monthly basis to power an electric whipper snipper.
Ms Karu
The electrician showed Ms Karu and Mr Oxman the hot water system. It was the first time she looked at the power cable. The electrical cable was cable tied to the water pipe with black cable ties. Her attention was brought to the electrical cable. The cable looked very old and had cracks in it. It appeared brittle and a bit powdery. In cross‑examination Ms Karu said the electrical cable definitely had fine cracking in it that was visible to the naked eye. She had not seen this before as it was at the side of house where she would not normally go.
Several days later Ms Karu saw that the hot water system had been replaced and the electrical cable was contained in a plastic conduit.
Kemal Holic
Kemal Holic is a licensed electrician. He was the principal of KH Signature Electrical that did service work for the property agent.
Mr Holic gave evidence that he received a call‑out to attend the Property. He thought he attended with his staff members Rene Meunier, Ben Hughes and Abdul, an apprentice. He was at the Property for about one hour.
When he arrived, Mr Holic said he spoke to the lady at the house. He was shown the shower where the Incident occurred. He remembered looking at the meter box, but not getting on a ladder or getting on the roof. His staff did the testing.
After Mr Holic left the Property, he received calls from Rene Meunier who told him they could not find what had caused the Incident.
Mr Holic identified the KH Signature Electrical job card (Exhibit 6). He stated he did not complete the card but would have looked at it when he invoiced the customer. He identified a checklist for the Property (Exhibit 10) but he did not complete it.
Mr Holic gave evidence that when he was at the Property, he saw the hot water system electrical cable tied to a copper pipe and then plugged into a power socket. He said it stood out a bit and was up high. There was UV damage from sunlight to the cable. He described it as whitened and bleached. There was no substance on the cable. He could not remember if the cable was powdery but it had gone from grey to white in colour. He could not remember touching it or pointing it out to anyone. He said he thought it might be an issue so it was replaced by his staff on his instructions. He said if a cable was not UV rated, it should not be in the sun.
In cross-examination, Mr Holic agreed that his recollection of his one‑hour attendance at the Property was not the best. He left the testing and work on the Property to be done by his staff after he left the Property.
Mr Holic described the replacement of the cable as 'nit picking and preventative action'. His business was not involved in replacing the hot water system.
Rene Meunier
Rene Meunier has been a licensed electrician for 15 years. He was employed by KH Signature Electrical in 2015.
Mr Meunier gave evidence that he attended the Property to determine the cause of someone receiving an electric shock.
He attended the Property over a couple of days. The home was tested very thoroughly. They could not find any electrical faults. An installation resistance test was carried out for electrical leaks. He remembered replacing the electrical cable to the hot water system, but could not recall much about it.
Mr Meunier said he rang Masters (who he described as a technical support line who give advice on what they are told by electricians) to seek advice because he could not find a fault. Their suggestion was to replace the lead (electrical cable) and if there was nothing on an RCD, to upgrade the RCDs at the house so the whole house was protected by RCDs. Mr Meunier said he did what they recommended.
In relation to the power cable to the hot water system, Mr Meunier could not recall the condition of it or when exactly it was replaced. He accepted that according to his report he replaced the cable.
When shown Exhibit 6, Mr Meunier said the information contained on it, including test results, was completed by him. He said in cross‑examination the document is completed continuously and should account for all work done. In relation to Exhibit 10, he said he could not recall completing this document but would have done so on 10 November 2015.
Mr Meunier said anything and everything was tested in the house. Every circuit was covered. The testing was done prior to the hot water system being replaced.
Mr Meunier said this was the only job he had done where he could not give a definitive answer as to what caused the electrical fault.
In cross-examination Mr Meunier said the installation of three RCDs and replacement of the electrical cable would have been done after the resistance testing. Testing would have also been done prior to leaving the Property after items had been replaced. He said both tests gave the same results, or he would have recorded different readings on Exhibit 10.
When cross-examined about the hot water system electrical cable replacement, Mr Meunier said he could not recall much about it. He said the electrical cable was tied to a copper pipe and plugged into a power socket higher up. He remembered the condition of the electrical cable had some ultraviolet/sunlight damage. It was whitening from being exposed to the sun.
Mr Meunier denied in cross-examination that Mr Holic told him to replace the electrical cable. He did not think the electrical cable was replaced on 3 November 2015. He said if that occurred, it would have been noted on Exhibit 6.
When Mr Meunier looked at Exhibit 6, he said the RCDs were put in on 9 November 2015 and the final vault test was done on 11 November 2015. He could not recall replacing an electrical cable on a hot water system in 15 years. He said rain would not cause much deterioration of the electrical cable.
In re‑examination Mr Meunier said the testing was done pursuant to Australian Standard 3000. The tests were mandatory. They were done before and after the work was done from 3 - 11 November 2015. He said in 2015 only two RCDs were required for a house.
Subsequent events
Mr Oxman
Mr Oxman said he was not aware of any exit property inspection being done after he vacated the Property.
On 26 October 2018, Mr Oxman requested from Mr Norrish a copy of the Certificate. Mr Norrish emailed the Certificate on the same day.[11]
[11] Exhibit 11.2.
Mr Oxman noticed the Certificate he received was dated two years prior to his rental agreement and was made out to the previous owner. Mr Norrish told Mr Oxman that it was the most recent Certificate and that no other inspections were done. Mr Oxman said he was stunned to be told by Mr Norrish that no other inspection had been done.
Mr Oxman described the pain he suffered from the electric shock was to his right pectoral region. His back was still sore and his right arm weaker.
Mr Norrish
Mr Norrish was shown Exhibits 11.1 and 11.2. He said Mr Oxman rang him about RCDs quite a bit later and referred to his electric shock incident. Mr Norrish said nothing major was made of the electric shock incident and Mr Oxman asked if RCDs were in place. Mr Norrish said yes and sent him a copy of Exhibit 11.2 the December 2013 Certificate fairly soon after the call, possibly the same day.
Expert evidence - Michael Sage
Michael Sage is an electrical engineer with 50 years of experience in electrical installations. Mr Sage was called as a witness for Mr Oxman. Mr Sage's expertise is not in issue.
Mr Sage was the only expert witness called in this trial. He gave evidence on 2 March 2023 and was recalled on 29 June 2023. Mr Sage's cross‑examination was adjourned to the second hearing date to allow the defendant's counsel to obtain further instructions and, if necessary, expert advice in relation to some of Mr Sage's evidence in cross‑examination.
Mr Sage provided two reports, the first dated 23 February 2022 and a further report on 4 April 2023. These reports are Exhibits 52 and 53. The first report is very brief, consisting of four pages excluding appendices. The first report includes Mr Sage's opinion as to whether the Regulations and the Wiring Rules were complied with.
The defendant submitted that some paragraphs in Mr Sage's first report (Exhibit 52) were inadmissible because he failed to identify what factual assumptions he had made for coming to his conclusions, or because the factual basis was disputed. Paragraph 7.4 was excluded by consent.
During the trial, I ruled pars 1.4, 7.3, 7.6, 7.7 and 8.1 were admissible, but would reconsider this ruling once all evidence was completed. Having now heard evidence from Mr Oxman and Mr Sage, and considered his further report which is Exhibit 53, I am still of the view this evidence is admissible.
Mr Sage's involvement in this matter did not begin until 2017. At this point of time the hot water system and electrical cable leading into the Property had been replaced. As a result, his first report was based on photographs taken after the Incident (Exhibits 3.1 ‑ 3.16, 7.1 ‑ 7.13, 10.1 ‑ 10.3 and 11.2), background facts provided by Mr Oxman's former solicitors, a Western Power report dated 5 November 2015 and a telephone conference with Mr Oxman on 17 November 2021. In that telephone conference, Mr Sage said he was told by Mr Oxman that:
…
2.Roy reported that an electrician reported to him that the flexible cord connecting the gas water heater to the socket outlet had a deteriorated outer sheath and was in contact with, and cable tied to, a water pipe.
…
4.Roy reported that he received a severe electric shock which left him with chronic nerve damage. Roy could not talk, had difficulty breathing, and had difficulty in walking. Roy managed to move to the main switchboard of the premises and isolate the power by switching off the main switch. Subsequently Roy was taken to hospital.
5.Roy had received the shock when he touching a tap and touching the shower head.
Mr Sage concluded that Mr Oxman's electric shock was caused by a deteriorated electrical flexible cable in contact with plumbing pipe to the shower he was using. RCD protection of the final subcircuit to the socket outlet, to which the electrical flexible cable of the water system was plugged in, would have mitigated or prevented the electric shock.
Mr Sage acknowledged that from the photographs he was unable to state whether the hot water system was correctly installed or wired.
Mr Sage's conclusion as to that cause of the Incident relies upon the factual accuracy of what Mr Oxman told him, including what an electrician at the Property told him and the Western Power report (Appendix 3 to Exhibit 52).
In evidence-in-chief on 2 March 2023, when Mr Sage was referring to his ultimate opinion in his first report, he referred to a case in Roebourne where an electrical fatality was caused by a mere pin hole in a flexible electrical cable. In cross‑examination, Mr Sage said that was the only case he was aware of where there had been electric current leakage due to pin hole damage.
Mr Sage surmised that if the electrical cable at the Property was exposed to sun and weather, and if it was old, then a pin hole or cracks could develop. He believed that the electrical cable at the Property had deteriorated to the extent that current would leak out of it to the plumbing. He was unable to find any other explanation or cause for the Incident.
Mr Sage said that an RCD is an extremely sensitive device. An RCD has a common 30 milliamps sensitivity. As a result an RCD will trip in milliseconds as opposed to seconds. Mr Sage said RCDs act to protect people by mitigating the electric shock a person receives.
In cross-examination Mr Sage said to check for pin holes or cracks in electrical cables would require test equipment. It is cheaper to simply replace a deteriorating electrical cable. He said an electrical cable similar to that photographed (Appendix 4 to Exhibit 52) would have double insulation with a PVC compound.
Mr Sage agreed that an RCD protects against a discrepancy between electricity coming into a circuit on the live wire and electricity leaving the circuit on the neutral wire. If there is a discrepancy within the circuit that the RCD protects, then the RCD will trip depending on the rating it is set at. For households the common RCD rating was 30 milliamps.
Mr Sage gave evidence that an RCD trips so quickly the shock you receive is a minor one and avoids a death or irreversible injury. An RCD would also avoid involuntary grasping of a live object and prevent a prolonged electric shock. He understood that at the time of the Incident there were two RCDs protecting the Property but they did not protect the hot water system.
Based on what Mr Oxman told Mr Sage about the impact of the electric shock on him in their telephone conference, Mr Sage was of the opinion he fell in Zone AC3 in the IEC Standard as to the 'Effects of Current on Human Beings and Livestock': Exhibit 39. Mr Sage again confirmed this opinion during his cross‑examination.
Mr Sage said that if a competent electrician saw deterioration in the electrical cable, he would replace it.
In cross-examination Mr Sage said that a reason why the electricians who attended the Property who carried out tests could not find current leakage from the electrical cable connected to the hot water system, could be an intermittent electrical fault. Weather conditions could make an electrical cable moist or dry at different times, causing leakage of current to be intermittent rather than permanent. At the time of testing, water or moisture could have evaporated so the electrical cable would be dry. In his second report Mr Sage gave an example of his own experience with an intermittent electrical fault in 2003 due to moisture which, when tested by an electrician showed no fault.
Mr Sage stated in his second report:
Whenever there is a break in the integrity of an electrical cable, moisture is liable to enter and be retained within the cable which acts like a vessel. Moisture obviously can come from rain, early-morning condensation, dew, etc. Temperature and relative humidity affect the point at which dew droplets form.
He gave examples of the impact of moisture upon an electrical cable degradation. Mr Sage considered that it is more likely than not that water entered the cable and electrical current leaked from the cable conductor (ie copper wire) through the conductive water to the copper water pipe.
Mr Sage explained how 'wicking' causes water/moisture to travel until it finds weaknesses in the internal insulation of an electrical cable.
In his second report Mr Sage said that if witnesses had observed that the electrical cable appeared powdery and had cracking or fine cracking, this would indicate that the cable had deteriorated to the point that the PVC outer sheath had embrittled and disintegrated into powder. This type of deterioration would be ample to allow current leakage through the mechanism of water or moisture or sparking.
Attached to Mr Sage's second report are extracts of the Bureau of Meteorology certified weather data for 2 and 3 November 2015 at the general location where the Incident occurred. These record rainfall on 2 November 2015 between midnight and 9.00 am. The report of D Kala[12] generally confirms Mr Sage's opinion about humidity and moisture.
[12] Exhibit 51.
Mr Sage was of the view on the morning of the Incident, the cracked electrical cable was very likely still retaining moisture absorbed from the previous day's rain and affected by early morning dew and condensation in the humid environment. Mr Sage in his evidence, explained the PVC compound in an electrical cable contains plasticiser to make it flexible. With time and heat, the plasticiser can evaporate and render the cable brittle and subject then to cracking. He explained that if there was cracking in the cable, this could also be as a result of a loss of plasticiser as well as heat causing the electrical cable to deteriorate.
Mr Sage was asked about the possibility that rats had eaten through electrical cabling in the ceiling in the Property causing Mr Oxman's electric shock. In his second report he accepted this was a scientific possibility but set out a number of reasons why this was a most unlikely cause of the Incident.
Other evidence: Linda Stone
An earlier tenant of the Property, Linda Stone who lived at the Property between 2010 - 2014, gave evidence, but it is not necessary to outline her evidence in detail. Neither party referred to her evidence in their written closing submissions.
Ms Stone gave evidence that she did not have any trouble with the hot water system whilst living at the Property.
After she moved out of the Property, Ms Stone said she went back to get her mail. On this occasion, the tenant took her inside the Property and showed her renovations to the Property. A wall had been taken out between the kitchen and the lounge room. The kitchen had been substantially renovated.
In cross‑examination, Ms Stone said she never suffered an electric shock or tingle whilst living at the Property.
Determination of the issues - factual findings
What caused the plaintiff's electric shock on 3 November 2015?
As already noted, the plaintiff claims his electric shock was caused by the deteriorated electrical cable being tied to the hot water system pipe and the electric current then leaking from the cable to the water pipe which caused the plaintiff to suffer an electric shock when he touched the shower rose. The defendant denies that this is so, contending that alternative causes are more likely. As success on this issue is essential to the plaintiff's case, it is convenient to determine this issue immediately.
The documentary evidence in this trial is of limited assistance. There is no photographic evidence of the hot water pipe being connected to the electrical cable at the time of the Incident.
I accept the evidence of the plaintiff that when he returned to the Property on 3 November 2015, Mr Holic showed him that the electrical cable was connected to the hot water pipe with cable ties. I also accept the plaintiff's evidence that the electrical cable was old, cracked, chalky, dusty and sun damaged. Mr Oxman was consistent in his evidence as to this.
Ms Karu said she saw fine cracking on the electrical cable. She also said it was brittle and powdery. Her evidence although not identical, generally confirmed Mr Oxman's evidence about the state of the electrical cable on the date of the Incident.
I find the electrical cable was replaced on the day of the Incident. The replacement of the cable is consistent with it being in a deteriorated and therefore in an unsafe condition.
I do not consider the KH Signature Electrical job card (Exhibit 6.1) an accurate document as to the date the electrical cable was replaced. I do not find that it was a document completed contemporaneously by the employees of KH Signature Electrical.
Given Mr Holic's concession in cross-examination about his recollection of his attendance at the Property 'not being the best', I prefer the evidence of the plaintiff and Ms Karu as being more accurate and reliable generally as to the state of the electrical cable when they looked at it. I consider Mr Holic's evidence at [86] generally corroborates the plaintiff's evidence as to his observations of the state of the electrical cable.
I find Mr Sage a credible and reliable witness. On the evidence of Mr Sage both by way of his testimony and his two reports, Exhibits 52 and 53, I am satisfied on the balance of probabilities, the cracked electrical cable made intimate contact with the hot water system pipe. Moisture from humidity, dew or rain penetrated cracks in the electrical cable. Current then leaked from the cable to the water pipe and caused the electric shock to Mr Oxman when he touched the shower rose. On the evidence I find this is the most probable inference available as to what caused the Incident. I have no difficulty in finding that the electric shock was the direct cause of Mr Oxman's injuries.
I consider the other possible causes put to Mr Sage in cross‑examination such as a failed cable joint within another appliance at the Property; an event external to the house or rats eating through electrical cabling in the ceiling are merely theoretical and speculative. I consider on the evidence, these causes are inherently improbable.
I accept Mr Sage's evidence that the reason representatives of KH Signature Electrical could not find fault in the relevant electrical cable when they tested it after the Incident was that the moisture problem was intermittent. In the alternative, based on the evidence of Mr Meunier, the testing may have been done after the electrical cable was replaced. I consider these are reasonable inferences on the evidence available.
The defendant submits that there is an inconsistency between the plaintiff's evidence as to how he suffered the electric shock and what he told Ms Karu, the staff at the hospital and Mr Sage.
I accept that there are some inconsistencies in that evidence, I am however, satisfied that those inconsistencies are explained by the fact the plaintiff had just suffered an electric shock when speaking to Ms Karu and hospital staff.[13] I also note that when Mr Oxman was speaking to Mr Sage, he was recounting his experience six years after the Incident. With the passage of time there is natural dimming of recollection and I do not consider the differences in the plaintiff's accounts are such as to bring his credibility into question as to his evidence on this issue.
[13] Exhibit 34, hospital notes.
Both parties place some reliance on Exhibit 39 in relation to the effect of the electric shock on Mr Oxman and the likely level of current he received in the shock. Exhibit 39 is an Australian/New Zealand Standard as to Effects of Current on Human Beings and Livestock. In particular, the parties rely on sections 5.8, 5.9, Table 11 and Figure 20. As I have referred to in [122], Mr Sage also considered this exhibit in his evidence. I give this evidence very limited weight as the document is just a general standard. I consider the best evidence of the impact the electric shock had on Mr Oxman was his own evidence of the Incident which I have referred to in [66], which I accept.
Would an RCD have prevented Mr Oxman suffering the electric shock or reduced the severity of the electric shock?
The plaintiff contends that if the power socket to which the hot water system was connected had been protected by an RCD at the time of the Incident, he would not have suffered an electric shock or the severity of the electric shock he suffered would have been reduced.
The defendant disputes this.
The only expert evidence called in relation to this issue was Mr Sage who was called by the plaintiff. He was a suitably qualified expert, and I had no difficulty in accepting the expert evidence given by him.
I am satisfied on the balance of probabilities that if an RCD had been connected to the power socket that the hot water system was connected to, the RCD would have tripped by the time the electrical cable generated 30 milliamps of power and thus stopped or reduced the flow of electric current through the hot water pipe. Once the RCD tripped, the plaintiff would have then either avoided receiving an electric shock or the level of severity of the electric shock would have been reduced.
Having regard to the fact that the only expert called at trial could not say whether the RCD would have prevented the electric shock, as distinct from reducing its impact, I am unable to find that an RCD would have prevented the plaintiff receiving an electric shock. I am satisfied, however, that an RCD, if installed would at least have reduced the level of the electric shock he received.
Breach of statutory duty
The plaintiff claims that both reg 14(b) of the Regulations and Wiring Rule 3.9.8.4(b) imposed a statutory duty on the defendant to install an RCD on the power supply to the hot water system before leasing the Property to the plaintiff.
The plaintiff claims that a breach of the Regulations gives rise to a private right to sue the defendant for loss or damage caused by a breach of the Regulations because the Regulations are concerned with safety of a limited class or classes or persons which would include tenants.[14]
[14] Referring to Seiffert v The Prisoners Review Board [2023] WASCA 15 [269] - [276].
The plaintiff further submits that the definition of 'installed' in reg 12 and therefore reg 14(b) requires that installation be in accordance with the Wiring Rules as this regulation uses the word 'installed'. At [166] I set out the relevant parts of these Regulations.
The plaintiff further submits that Wiring Rule 2.6.3.1 requires residential electrical installations including all power point and lighting final subcircuits to be RCD protected.
The plaintiff submits that not only were at least two RCDs required to be installed at the Property, but the Regulations also required that RCDs protect all power point and lighting final subcircuits which would include the power socket to which the hot water system was connected at the time of the Incident. The plaintiff further submits no exemptions under the Regulations or exceptions under the Wiring Rules applied to the defendant.
The plaintiff also claims the defendant breached its statutory duty pursuant to Wiring Rule 3.9.8.4(b) as the electrical cable connecting the hot water system to its power outlet was less than 25 mm away from the hot water system's water piping.
The defendant submits that based on its interpretation of the relevant Regulations and Wiring Rules that applied at the time of the Incident, it had complied with its statutory duties. The relevant statutory duty only required two RCDs be installed at the Property at the time of the Incident. The defendant submits the December 2013 Certificate evidences its compliance. The defendant further submits, in any event, Exception 3 of Wiring Rule 2.6.3.1 applied to it at the time of the Incident.
The parties accept there were two RCDs installed at the Property and the power socket to which the hot water system was connected was not RCD protected when the Incident occurred.
To succeed in a claim of breach of a statutory duty, the plaintiff must demonstrate, not only he has suffered harm from a breach of the statutory provisions, which Parliament may have intended generally to ground civil recovery and he falls into a protected class, but also that what has happened to him was within the fairly precise scope of harm which Parliament had been meaning to address.[15] The High Court in Byrne v Australian Airlines Ltd;Frew v Australian Airlines Ltd[16] described this cause of action as follows:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.
[15] O'Connor v SP Bray Ltd (1937) 56 CLR 464.
[16] Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd (1995) 185 CLR 410, 424.
Fleming's The Law of Torts[17] summarises the elements of the breach of statutory duty action as follows:
The elements of the civil action for breach of statutory duty … can be identified as: (a) the intention of Parliament to allow an action; (b) the plaintiff must fall within the 'limited class' of the public for whose benefit the statutory provision was enacted; (c) the damage suffered must also fall within the intended scope of the statute; (d) the obligation under the statute was imposed on the defendant; (e) the defendant must have breached the statute; and (f) that breach must have caused actual damage of some sort to the plaintiff.
[17] C Sappideen and P Vines (Eds), Fleming's The Law of Torts, (10th ed, 2011), 424.
This summary of the elements of the action has since been judicially adopted in Alcoa of Australia Ltd v Apache Energy Ltd.[18]
[18] Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 [80] (Le Miere J).
In considering whether a statutory duty was owed to the plaintiff and breached by the defendant, it is necessary to carefully consider the text and proper construction of the relevant statutory provisions. It is also necessary to determine whether the written rule the parties rely on is a statutory provision.
At the date of the Incident the relevant parts of reg 12 and reg 14 stated the following:
12.Terms used
In this Part -
…
installed, in relation to residential premises or common property relating to residential premises, means -
(a)installed in accordance with the Australian/New Zealand Wiring Rules in relation to those premises or that property; and
(b)not installed in relation to any other premises or property;
…
residential premises means premises that constitute or are intended to constitute a place of residence but does not include any common property relating to the residential premises;
residential tenancy agreement has the meaning given in the Residential Tenancies Act 1987 section 3;
…
14.Residential premises not occupied by owner
Subject to any exemption under regulation 18, an owner of residential premises that are not occupied by an owner must ensure that at least 2 residual current devices are installed in relation to the premises -
(a)before title to the premises is transferred; or
(b)before the owner enters into a residential tenancy agreement in respect of the premises with someone other than a person who was a tenant (as defined in the Residential Tenancies Act 1987 section 3) of the premises immediately before the commencement day; or
…
Penalty:
(a)in the case of an individual - a fine of $15 000;
(b)in the case of a body corporate - a fine of $100 000.
(emphasis added)
Wiring Rule 2.6.3.1[19] provides that for residential electrical installations:
[19] The parties provided two versions of the Wiring Rules, Exhibits 37 and 38. Exhibit 38 is the Wiring Rules that applied at the date of the Incident.
Additional protection by RCDs for the maximum rated residual current of 30 mA [milliamps] shall be provided for final subcircuits supplying -
(a)one or more socket-outlets; and
(b)lighting points; and
NOTE: For the purpose of this Clause, combination fan, light and heater units, smoke detectors, exhaust fans and ceiling sweep fans are all regarded as lighting points.
(c)directly connected hand-held electrical equipment, e.g. directly connected hair dryers or tools;
forming part of -
(i)individual domestic electrical installations; or
(ii)residential areas of other electrical installations (see Note below); or
(iii)multiple residential electrical installations that are provided for common use; or
(iv)external lighting installations in common areas of multiple residential electrical installations.
Where protection of final subcircuits is required, RCDs shall be installed at the switchboard at which the final subcircuit originates.
Exceptions:
1This requirement does not apply in medical treatment areas such as the home dialysis installations detailed in AS/NZS 2002.
2This requirement need not apply to certain alterations, additions or repairs in accordance with Clause 2.6.3.4.
3This requirement need not apply to a socket-outlet or a connecting device specifically for the connection of a fixed or stationary electric cooking appliance, such as a range, oven or hotplate unit, provided that -
(a)the socket-outlet is located in a position that is not likely to be accessed for general purposes; and
(b)the socket-outlet is clearly marked to indicate the restricted purpose of the socket-outlet and that RCD protection is not provided.
Wiring Rule 3.9.8.4(b) provides that:
(b)Gas and water services Requirements for the separation of distributed gas and water systems from low voltage wiring systems are provided in the AS/NZS 5601 series for gas services and AS/NZS 3500 for water services.
Wiring systems shall maintain a separation of not less than 25 mm from any above‑ground gas or water piping. Separation from underground gas and water services shall be in accordance with Clause 3.11.5
…
I have no difficulty accepting that the Property was a 'residential premises' at the time of the Incident and the Lease for the Property was a 'residential tenancy agreement' as defined in reg 12.
The plaintiff submits that the word 'installed' means installed at the time of the Incident and in compliance with the Wiring Rules pursuant to the definition contained in reg 12.
The plaintiff submits the word 'ensure' in reg 14 means the defendant was unable to delegate its statutory obligation.
Regulation 12 is a regulation which provides definitions for terms used in reg 14. Definitions do not have substantive effect. They are not to be construed in isolation from the operative provision(s) in which a defined term is used. Rather, the operative provision is to be read by inserting the definition into the provision.[20] As a result it is not possible to 'breach' a definition.
[20] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228 [62], [150], [218].
The plaintiff's interpretation of reg 14(b) asserts that in order to determine whether an RCD has been 'installed', you have regard to the Wiring Rules which stipulate how to install in Wiring Rule 2.6.3.1. I do not accept this submission. The reference to 'install in accordance with the Wiring Rules' in reg 12 does not connote that one looks to the Wiring Rules to determine how many RCDs are to be installed. That question is the subject of the provision in reg 14 only. This regulation only requires two RCDs to be installed.
As the parties have accepted at the date of Incident two RCDs were installed at the Property, therefore, if reg 14(b) created a statutory duty on the defendant, it was compliant with this duty at the time of the Incident.
Both parties accept that at the date of the Incident the hot water system water pipe and the electrical cable did not comply with Wiring Rule 3.9.8.4(b) as they were within 25 mm of each other.
The Wiring Rules are an Australian/New Zealand Standards document comprising 465 pages and are very technical in their nature. The Wiring Rules were provided by Joint Technical Committee El-001 and approved by the Councils of Standards for Australia and New Zealand.
The Wiring Rules are not statutory rules or regulations. In isolation, a breach of a clause or provision in the Wiring Rules cannot be a breach of a statutory duty as the Wiring Rules are not a creature of statute. In those circumstances, notwithstanding the acceptance of both parties that Wiring Rule 3.9.8.4(b) was breached at the date of the Incident. No statutory duty was imposed on the defendant for compliance with that rule.
For these reasons, the plaintiff has not established any breach by the defendant of any statutory provision. Consequently, I dismiss the plaintiff's claim against the defendant for breach of statutory duty.
Breach of contract
The plaintiff claims that the defendant breached an oral agreement entered into between the parties. He pleads that prior to entering into the Lease, and prior to the plaintiff taking occupancy of the Property, there was an oral agreement that the defendant would obtain an electrical inspection report certifying that the electrical wiring was safe. The plaintiff pleads this oral agreement constituted a contractual warrant or collateral contract for him to sign the Lease and/or occupy the Property.
The defendant says that there was no such agreement between the parties.
When Mr Norrish gave evidence, he could not recall any conversations he had with the plaintiff between his first contact with him and the lease signing. Mr Norrish did have a vague recollection of meeting the plaintiff at the Property in August 2015.
Clearly there would have been, and I infer that there were, some discussions between the parties at that meeting about the Property. This was the purpose of the meeting. If there were discussions about renovations done to the Property, questions about the electrical work done may have also arisen.
The plaintiff was cross‑examined about his evidence that the meeting with Mr Norrish at the Property occurred in August 2015 yet in the plaintiff's pleadings, and his solicitors' letter to Mr Sage, mention was made of dates in September and October 2015.[21] I consider this inconsistency between the previous instructions of the plaintiff to his legal representatives as to the date of his meeting with Mr Norrish at the Property and his evidence as to the date as having some material impact on his credibility as a witness. The plaintiff explained the difference in dates occurred as he recently found photographs showing the date of the meeting with Mr Norrish when he took the photographs. The inconsistency does suggest the plaintiff's general recollection of the meeting and what was discussed at the meeting is not reliable.
[21] Exhibit 52, Appendix 2; Exhibit 55.
More significantly, Mr Oxman's conduct after these discussions, counts strongly against acceptance of his evidence that Mr Norrish promised to provide an electrical inspection report on the safety of the Property after the renovations.
On 8 September 2015, Mr Oxman emailed to the defendant's Property agent a signed application to enter into a residential agreement.[22] In the section to be completed by the tenant, there is no mention of the provision of a Certificate, yet other special conditions requested have been inserted by Mr Oxman.
[22] Exhibit 1.
No Certificate was provided to Mr Oxman before he moved into the Property.
After Mr Oxman and his partner signed the lease and moved into the Property, Mr Oxman did not raise the issue of a Certificate again until October 2018.
The absence of any follow-up by Mr Oxman as to the provision of a Certificate between the August 2015 meeting and Mr Oxman occupying the Property, plus for nearly a further three years after Mr Oxman had suffered his electric shock gives me concern about Mr Oxman's credibility and reliability in relation to what was actually discussed at the meeting at the Property with Mr Norrish and whether there was a subsequent text message exchange about an electrical safety inspection for the Property.
After Mr Oxman moved into the Property, and after the Incident, he communicated by emails to the Property agent about the Property but there is no mention of a Certificate.[23]
[23] Exhibits 9 and 55.
The fact there is no mention of a Certificate by the plaintiff in what I have described in [185] and [189], and that there was no follow‑up by the plaintiff after September 2015, suggests there was no concern about this by him and is consistent with there being no discussion or agreement with the defendant that he be provided with a Certificate.
I am not satisfied on the evidence as a whole, on the balance of probabilities, that the parties agreed at the meeting in August 2015 that the defendant would provide to the plaintiff a Certificate relating to the post‑renovation position that the electrical work at the Property was done to code and so it was safe before he signed the Lease and occupied the Property.
I am not satisfied that there was a mobile telephone text message exchange between the parties about whether an electrical safety inspection had been done some time after Mr Oxman's and Mr Norrish's meeting at the Property.
The plaintiff has failed to prove that there was any oral discussion or agreement between them that the defendant arrange for an electrical safety inspection at the Property and provide him with a Certificate before he signed the Lease or occupied the Property.
For that reason, the plaintiff's claim for breach of contract against the defendant is dismissed.
Negligence
The plaintiff claims the Incident was caused by the negligence of the defendant as particularised at [14(a)] - [14(f)].[24]
[24] Amended statement of claim, pars 10(a) - 10(f).
At common law a landlord who leases premises for residential purposes owes a duty to the tenant and those, who constitute the tenant's household to take reasonable care for their safety by putting and keeping the premises in a safe state of repair.[25]
[25] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.
Section 5B of the Civil Liability Act 2002 (WA) (CLA) modifies the common law as to breach of duty of care by articulating situations in which a person is not liable for harm.[26] It does not modify or supplant the common law principles which determine whether a duty of care exists or not.[27] It provides:
[26] CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77]; Department of Housing and Works v Smith [No 2][2010] WASCA 25; (2010) 41 WAR 217 [70] - [83] (Buss J) (Smith).
[27] Subsection 5B(2) restates the common law position as set out in The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J). See Smith [77]; Rankilor v City of South Perth [2016] WASCA 29 [43].
5BGeneral principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Section 5B requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk. This is to be determined objectively, not with the benefit of hindsight.[28]
[28] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gummow J) (Dederer); Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31], [40] (French CJ, Gummow, Hayne, Heydon & Crennan JJ); CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [78]; Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [12], [33], [120] (Buss P & Vaughan JA); [116], [120] (Murphy JA)) (Allied Pumps).
Section 5C of the CLA sets out general principles for the determination of causation.
Pursuant to s 5D of the CLA the onus of proof in proving causation is always on the plaintiff and the level of proof is on the balance of probabilities.
The defendant accepts that any statutory duty imposed on it is relevant to determine the existence and scope of a common law duty of care.
As I have found, the defendant did not breach the statutory duty under reg 14 of the Regulations the plaintiff relies upon. I have also found the Wiring Rules are not a statutory instrument giving rise to a statutory duty. There is no evidence of negligence of the defendant by a breach of statutory duty. In those circumstances, the plaintiff has failed to prove the particularised breaches of a duty of care it submits was owed to the plaintiff in pars 10(b), 10(c) and 10(d) of the amended statement of claim. The Property did have the appropriate and correct RCD protection to meet the statutory requirements at the time of the Incident.
The plaintiff in the remaining particulars of the breaches of a duty of care in his amended statement of claim pleads the duty was breached by the defendant by failing to ensure the Property was safe for tenants, failing to carry out adequate checks or inspections to detect changes such as those which caused the Incident, and failing to carry out adequate maintenance and repair of the Property, in particular the hot water system.
The defendant accepts it owed a duty to take reasonable care to avoid foreseeable risk of harm to Mr Oxman.[29]
[29] Defendant's closing submissions, par 130; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [168] (Gummow & Hayne JJ).
In Jones v Bartlett, Gummow and Hayne JJ said:
Broadly, the content of the landlord's duty to the tenant will be coterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely, habitation as a domestic residence.
It is necessary to identify the risk of harm before assessment of what a reasonable response to that risk would be.[30]
[30] Dederer [59] (Gummow J); Allied Pumps [12].
Here, the risk was that Mr Oxman as a tenant on the Property might suffer an electric shock.
There is no evidence that it is standard routine practice for residential property owners to arrange for an independent inspection of a house to ensure it is safe in terms of gas, electrics, water systems, structural stability or anything else other than by property agents preparing property condition reports at the commencement of a lease.
There is no evidence that anyone had suffered an electric shock at the Property before the Incident.
After the defendant purchased the Property in December 2013 but before Mr Oxman and Ms Karu entered into the Lease, renovations were done to the interior of the house on the Property including adding electrical devices such as an oven. There is no evidence that renovations were done to the exterior of the house.
There is no evidence that the defendant or its director Mr Norrish were aware that there was damage to the electrical cable from the hot water system which was cable tied to the hot water system prior to the Incident.
The deteriorated electrical cable was on the exterior of the house on the Property and not part of the internal renovations to the house on the Property.
The eyewitnesses' accounts of their observations of the deteriorated electrical cable after the Incident (before it was replaced) do not suggest this would be easy for a person to observe or find.
On the evidence, I am satisfied that there was no feature of the exterior of the house on the Property which ought reasonably to have suggested to the defendant, that it would be appropriate to obtain an electrical inspection or replace or repair the hot water system or the electrical cable from the hot water system. There was no apparent danger of which the defendant would have been reasonably expected to be aware.
I have already found that the plaintiff did not request an electrical inspection and Certificate of the defendant. There is no evidence that the defendant was aware that there were any concerns with the electrics to the Property leading up to the plaintiff's Lease and occupation.
There is no general obligation imposed on a landlord to arrange an electrical safety inspection or obtain a Certificate every time a property is leased.
The plaintiff has failed to prove the defendant was negligent towards him in any of the six respects particularised in the amended statement of claim.
Occupiers' liability
The plaintiff claims the defendant breached the duty of care owed to him as the defendant was an 'occupier' of the Property under s 5 and s 9 of the OLA.
The plaintiff claims the duty the defendant owed was reasonable care to ensure that he did not suffer injury by reason of dangers which are due to anything done or omitted to be done at the Property and for which the defendant was responsible. As a landlord, the plaintiff submits that the defendant owed the same duty of care as that arising from the duty owed by an occupier of the Property pursuant to s 5(1) of the OLA.
The defendant denies it was an occupier of the Property under the OLA or owed the plaintiff a duty of care under the OLA.
The plaintiff claims the defendant as owner and lessor of the Property had control of the Property.
Section 2 of the OLA defines an 'occupier of premises' as a 'person occupying or having control of land or other premises'.
Section 9(1) of the OLA states the following:
Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.
(emphasis added)
Section 9(1) of the OLA extends the common law duty of care to a statutory duty on a landlord where a landlord owes the same duties to persons entering the premises as the duties owed by the occupier of the premises under the OLA.[31]
[31] Smith [62] - [63] (Buss JA).
The duties owed by an occupier of premises under the OLA are defined in s 5(1) as:
Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(emphasis added)
In determining whether an occupier of the premises has discharged his duty, s 5(4) of the OLA lists the following matters for consideration:
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
As a result of the findings I have made at [208], [209], [210], [211], [212], [213], [214] and [215], I am unable to find that the plaintiff has proved that the hot water system and the electrical cable connected to it at the time of the Incident constituted a danger that in all the circumstances a reasonable person would have foreseen and therefore required maintenance or repair by the defendant.
The plaintiff further claims the defendant had a contractual duty to maintain the Property under cl 21.3 and cl 22 of the Lease and pursuant to s 42(2)(c) of the Residential Tenancies Act.[32]
[32] The plaintiff does not pursue the allegations arising out of the need for 'urgent repairs' in par 13(b) of the amended statement of claim, see par 21 of the plaintiff's amended opening submissions and s 42(2)(b) of the Residential Tenancies Act.
Section 42(2)(c) of the Residential Tenancies Act makes a term of every residential tenancy agreement that:
[T]he lessor must comply with all requirements in respect of buildings, health and safety under any written law insofar as they apply to the premises.
The plaintiff submits that the relevant requirement that the defendant was obliged to comply with were the statutory requirements referred to in [158] and [159].
I have already found that the defendant had complied with reg 14 at the date of the Incident and the Wiring Rules did not create a statutory duty for the defendant. As a result, the defendant did not breach any contractual duty owed to the plaintiff to maintain the Property in compliance with s 42(2)(c) of the Residential Tenancies Act.
Conclusion
For these reasons the plaintiff's claims against the defendant are dismissed.
Subject to hearing from the parties, the plaintiff should pay the defendant's costs, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GL
Associate to Judge Prior
24 JANUARY 2024
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