Taylor v Fisher
[2017] WADC 30
•7 MARCH 2017
TAYLOR -v- FISHER [2017] WADC 30
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 30 | |
| Case No: | CIV:2448/2014 | 28 - 30 NOVEMBER 2016 | |
| Coram: | LEVY DCJ | 7/03/17 | |
| PERTH | |||
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | EMILY BRITT TAYLOR BENJAMIN FISHER |
Catchwords: | Torts Negligence Occupier's liability Injury caused by broken ceramic soap holder when plaintiff showering Landlord's duty of care Foreseeability |
Legislation: | Civil Liability Act 2002 (WA) s 5B(1), s 5B(2), s 5K Occupiers' Liability Act 1985 (WA) s 9 Residential Tenancies Act 1987 (WA) s 42 |
Case References: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Marsh v Baxter [2015] WASCA 169 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Phillis v Daly (1988) 15 NSWLR 65 Sakoua v Williams [2005] NSWCA 405, (2005) 64 NSWLR 588 Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
BENJAMIN FISHER
Defendant
Catchwords:
Torts - Negligence - Occupier's liability - Injury caused by broken ceramic soap holder when plaintiff showering - Landlord's duty of care - Foreseeability
Legislation:
Civil Liability Act 2002 (WA) s 5B(1), s 5B(2), s 5K
Occupiers' Liability Act 1985 (WA) s 9
Residential Tenancies Act 1987 (WA) s 42
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr J R Criddle
Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Shine Lawyers
Defendant : Moray & Agnew Lawyers
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Marsh v Baxter [2015] WASCA 169
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Phillis v Daly (1988) 15 NSWLR 65
Sakoua v Williams [2005] NSWCA 405, (2005) 64 NSWLR 588
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
- LEVY DCJ:
Introduction:
1 In about February 2013, Emily Britt Taylor (the plaintiff) moved from Queensland to live with her family in South Hedland. At that time her mother, stepfather and brother resided at a rental property situated at 106 Paton Road, South Hedland (the property). The property was at all material times owned by Benjamin Fisher (the defendant).
2 The plaintiff's boyfriend also lived in South Hedland but at a different address. Although she ostensibly resided at the property, from the time that the plaintiff came to live in South Hedland she spent most nights at her boyfriend's residence. The plaintiff would however, return to the property each morning to shower before going to work.
3 On the morning of 20 March 2013, approximately three to four weeks after moving to South Hedland, the plaintiff was showering at the property. Whilst showering, the plaintiff's left elbow came into contact with the ceramic soap holder (also referred to as 'the soap dish') on the wall of the shower recess. The contact caused the plaintiff to suffer a deep laceration to the medial aspect of her left elbow. It is not in dispute that the contact caused the plaintiff to suffer a significant injury to her left arm.
4 The plaintiff was initially treated at the Hedland Hospital Campus but was later transferred to Royal Perth Hospital where she underwent a repair to the ulnar nerve of her left arm. The plaintiff's injury at the level of the elbow resulted in motor and sensory neuropathy. She had weakness to muscles in her left hand, forearm and numbness in the distribution of the ulnar nerve.
5 Whilst the plaintiff has made a good recovery, it is likely that she will have at least some permanent deformity to her hand including scarring (see exhibits 3 and 4 being report of Dr Ross Goodhart, consultant neurologist, dated 9 June 2014 and report of Mr Jeremy Rawlins, specialist plastic, reconstructive and aesthetic surgeon, dated 8 March 2016, respectively).
The plaintiff's claim
6 The plaintiff claims that, at all relevant times, the ceramic soap holder was damaged and posed a danger to users of the shower. The damage, on the plaintiff's case, was that which was depicted in photographs taken very shortly after the plaintiff suffered her injury. On the plaintiff's case, the condition of the soap dish remained unchanged at all material times.
7 The plaintiff's statement of claim filed on 20 February 2015 included claims that the defendant:
1. breached his duty of care to the plaintiff by reason of implied terms of a tenancy agreement (statement of claim 5(a) - 5(j)); and
2. breached his duty of care to the plaintiff as a tenant, pursuant to s 42 of the Residential Tenancies Act 1987 (see statement of claim pars 6; 13(a) and 13(b)).
8 These claims were ultimately abandoned as separate and distinct claims.
9 The claims pursued by the plaintiff at trial were that the defendant breached the duty of care owed to her:
1. as an entrant to the premises, in respect of dangers arising from any failure in carrying out his responsibilities of maintenance and repair of the premises pursuant to s 9 of the Occupiers' Liability Act 1985 (see statement of claim pars 7; 14(a) and 14(b)); and
2. pursuant to the common law duty of care owed to the plaintiff to ensure that the premises were fit for occupation, free of defects, safe and that nothing at the property posed a risk of harm to her (see statement of claim pars 12(a) - 12(i) and 15).
10 In particular, the plaintiff alleges that the defendant was negligent by failing to rectify a damaged ceramic soap dish, or to take any precautions to protect the plaintiff, or warn her of the risk of harm that it posed to her. The plaintiff alleges that the risk of harm from the damaged ceramic soap dish was reasonably foreseeable in all the circumstances of the case.
The defendant's case
11 Whilst not disputing that he owed the plaintiff a duty of care, the defendant denies that the ceramic soap dish posed a foreseeable risk of harm to the plaintiff.
12 The defendant concedes that he was aware that the ceramic soap dish was damaged and had been repaired prior to him leasing the property to the plaintiff's family. However, the defendant denies that the degree of damage to the soap dish, at the time he leased the property to the plaintiff's family, was as depicted in the photographs. On his case, the soap dish did not have any exposed edges, was smooth and posed no danger to any user of the shower recess.
13 The defendant denies that anything he did, or failed to do, amounts to a breach of his duty of care to the plaintiff.
14 In the alternative, the defendant submits that if the defendant was negligent or in breach of a statutory duty, then the injury the plaintiff suffered was caused or contributed to by the plaintiff's own negligence.
15 The trial related to the question of liability alone. The quantum of damages has been agreed between the parties in the sum of $200,000 plus special damages of $23,060.32.
16 It is of course the case that the plaintiff bears the onus of proof on the balance of probabilities. For the reasons which follow, I find that the defendant is not liable to the plaintiff.
The property
17 As noted above, the property was owned by the defendant.
18 According to the defendant, the house was built in about 1974 (ts 133). The property had three bedrooms, a lounge/dining room, kitchen, laundry, toilet, and one bathroom.
19 Although the defendant was a pastor at the time of the hearing, at the time the plaintiff suffered her injury he was a plasterer by occupation and had been since 2000.
20 The defendant purchased the property in 2010. He inspected the property before purchasing it. This included inspecting the bathroom. He did not notice anything amiss in the bathroom (ts 133) but could not recall whether he looked at the soap dish (ts 134). His memory was that although he had been taken through the house by the real estate agent to inspect the property, the soap dish was not pointed out to him (ts 144). According to the defendant, the house was in a reasonable to good living condition when he bought it (ts 133).
21 He rented the property out for about six months after purchasing it. Following that, in March 2011 he moved into the property to live. The property was in the same condition then as it was when he had purchased it. He lived in the property for approximately 16 - 17 months, moving out in either July 2012 (ts 137) or August 2012 (ts 135).
22 Very soon after moving into the property to live, he noticed that the soap dish had been broken and repaired.
23 At some stage Joshua Taylor, the plaintiff's brother, moved in to live with the defendant. Later, in about May 2012, the plaintiff's stepfather Mr Gregory Davis moved to Port Hedland for work. He also moved in. Eventually, in either July or August 2012, the plaintiff's mother Ms Davis moved in and the defendant moved out of the property.
The lease agreement relating to the property and the nature of the plaintiff's status at the property
24 It was not in dispute that from about 27 August 2012 onwards the defendant leased the premises to the plaintiff's mother, Ms Katrecia Davis. The lease of the premises was by way of an informal oral agreement between Ms Davis and the defendant. Pursuant to the lease, the defendant was still responsible for the maintenance and repair of the premises. Ms Davis leased the premises for the sum of $1,700 per week. That amount was originally negotiated between Mr Davis and the defendant.
25 In order to offset the high cost of the rent, Ms Davis sought and obtained the defendant's permission to both sublet some of the bedrooms at the property, as well as renting accommodation in the form of caravans that were placed on the property. The defendant told Ms Davis to 'treat the house as your own' (ts 138). He was also aware at some stage that the plaintiff was living at the premises.
26 The defendant accepted that he was aware that the occupants of the caravans would be using the bathroom in the house (ts 143).
27 According to the plaintiff, in about February 2013 when she came to live at the premises, she occupied a bedroom that she shared with her brother Joshua Taylor. I note that the plaintiff's evidence in this regard differed somewhat to that of her brother Mr Taylor. Mr Taylor said that whilst he and the plaintiff may have occupied a bedroom when she first arrived, he later occupied one of the caravans on the property.
28 In my view, nothing really turns on this issue. It may however be relevant to the plaintiff's credibility as a witness, particularly her memory of the condition of the soap dish at either the time she moved in or at the time of the injury.
The arrangement in relation to cleaning and maintenance of the property
29 According to the defendant, whilst he lived at the property he and the others jointly took care of the house. In particular, the defendant cleaned the shower recess and the soap dish. His observation of the soap dish in this period was that it was in the same condition as when he moved in. He said that when he touched it, he noticed that whilst 'it was rough from the glue', there were no sharp or jagged edges (ts 137).
30 He did no maintenance work on the property before the plaintiff's family moved in but did clean the property in anticipation of Ms Davis moving in. At that time he did not observe anything about the soap dish that caused him to have any concern about it (ts 138).
31 After Ms Davis moved in, the arrangement between the defendant and Ms Davis was that the defendant would do any of the minor maintenance jobs required at the property but anything more substantial, such as electrical work, would require him to arrange for a qualified person to undertake the work (ts 138). The defendant relied upon the plaintiff's mother to notify him of any maintenance required at the property. When required, Ms Davis would contact the defendant.
32 Minor maintenance jobs were at various times undertaken by either Mr Gregory Davis or the defendant. Examples of this, given by Ms Davis, included repairs or maintenance to air-conditioning and the toilet. On an occasion, Mr Gregory Davis had repaired a leaking roof. According to the defendant, after moving out he attended to a number of maintenance jobs at the property. He fixed: a leaking toilet; leaking taps in the laundry; a kitchen cupboard door and a light above the stove. He also got tradesmen to undertake air conditioner repairs and fix some down lights.
33 Despite the fact that some maintenance and repairs at the property were undertaken by Mr Davis, it is clear that the defendant was at all times ultimately responsible for the repairs or maintenance of the property.
The condition of the property
34 Apart from the plaintiff and the defendant, I heard evidence from three other witnesses about the condition of the house generally, including the bathroom and the soap dish prior to the plaintiff suffering her injury. These witnesses were: the plaintiff's mother Ms Davis; the plaintiff's brother Mr Taylor and the plaintiff's stepfather Mr Davis.
35 Whilst there were some differences between the plaintiff's witnesses and the defendant about the condition of the house generally, it is the variation in the witness accounts about the condition of the soap dish prior to the time that the plaintiff suffered her injury that is of more significance.
36 So far as they described the condition of the house generally, I note that the plaintiff's witnesses said that the house was old and needed work (see for example the evidence of Mr Joshua Taylor who described the house as being, 'old' and needing 'to be fixed up, but liveable' (ts 32); and Ms Katrecia Davis who described the property as 'an old property' and 'was run down'). According to the defendant, the house was in a 'reasonable to good' condition when he bought it (ts 133).
The plaintiff's evidence about the condition of the soap dish
37 As noted above, the plaintiff resided at the property for three or four weeks before she suffered the injury. She used the shower every day in that period.
38 The bathroom had a basin, a bathtub and a shower. There was no screen on the shower, just a shower curtain. The shower recess was a normal one, including showerhead, taps and a white porcelain soap dish.
39 According to the plaintiff, when she first moved in, the bottom half of the soap dish was 'damaged' and had been 'repaired with brown glue all over it (ts 8).
40 Over the three to four weeks she resided at the property prior to the injury, the only change she noticed in the condition of the soap dish was on the morning she suffered the injury. Whilst she was having a shower, before she suffered the injury, she heard something drop to the floor. When she looked down she saw what appeared to be a 'little white flake on the ground, about the size of [her] fingernail' (ts 9) which she clarified to be about 1 cm in size.
41 According to the plaintiff, although the piece appeared as if it had come from the soap dish, when she looked at the soap dish she was unable to discern any difference in its appearance (ts 9). She continued with her shower until she suffered the injury.
42 The plaintiff's evidence was that the photographs (exhibits 1.1, 1.2 and 1.3) depict the state of the soap dish exactly as it was at the time of her injury (ts 10). The photographs clearly show the soap dish to be damaged. The photographs of the soap dish reveal that the edge of it had obvious cracks with parts of the white porcelain missing. The very end of the soap dish has an uneven edge, exposing a brown material where the white porcelain had previously been.
43 According to the plaintiff, when she resided at the property there were about nine or ten people living there. She could not remember precisely who lived in the caravans and the bedrooms in the house. Her mother Ms Davis thought there were 13 people living at the property at the time (ts 54).
44 Notably, the plaintiff was asked about a statement she had made to an investigator on 29 April 2013 in relation to the incident. In that statement, with reference to the soap dish, the plaintiff acknowledged she had said the following:
I never really paid much attention to it so I couldn't give a better description than it being white and made of a porcelain type material. I didn't notice any design or pattern on it.
I can't say that I noticed any damage to it when I was showering for the five or so weeks after I came to stay with my mum.
45 In evidence at the trial, the plaintiff qualified what she had said in her earlier statement. According to the plaintiff, what she had actually intended to convey was that she had not seen any further damage to the soap dish, over and above what she had originally seen, from the time she moved in until the time of the accident (ts 19). In her evidence, the plaintiff described the state of the soap dish as looking 'like it had attempted to be repaired, but it wasn't repaired'.
46 Despite what she had said in the earlier statement, the plaintiff maintained that she 'always knew that there was damage to the soap dish from the day [she] moved in' (ts 16).
47 According to the plaintiff, the soap dish did not change in its appearance or condition from the time that she moved in until the time she injured her elbow. It is of course the case that the plaintiff's knowledge of the condition of the soap dish was limited to the three to four weeks that she resided at the property.
48 I do not accept that the plaintiff is a reliable witness with respect to her memory about the condition of the soap dish. For one thing, it is clear from both her evidence and that of her mother's that at least two separate porcelain pieces broke away from the soap dish within a period of about twenty-four hours immediately before she suffered her injury. Objectively, it could not be the case that the condition of the soap dish remained unchanged in the weeks or days before her injury. I deal with this issue further below.
Mr Taylor's evidence about the condition of the soap dish
49 Mr Taylor, the plaintiff's brother, was a plasterer by occupation. In March of 2011 he obtained an apprenticeship to work in Port Hedland. He moved to Port Hedland in March 2012. He initially lived with the defendant at the property and remained there until at least the time the plaintiff suffered her injury.
50 In relation to his evidence about the bathroom, which included that it needed to be fixed up, Mr Taylor said that there was a shower rack which hung from the shower head. According to Mr Taylor, it contained soap, shampoo, conditioner, razors and cloths.
51 As to the soap dish, he said that when he first moved in it looked broken, but appeared to have been fixed by being 'glued together' (ts 32). It appeared discoloured.
52 As to whether the condition of the soap dish changed over the period between when he first moved in and when the plaintiff suffered the injury, Mr Taylor said that he didn't really take much notice of it as they were not using it (ts 33). I take this evidence to mean that the soap holder was not being used because they had a shower rack which served the same purpose.
53 He recalled however, that the soap dish appeared broken. He described it as having cracks in it and that the edges had bits missing. The missing parts had not been repaired. He said that he always remembered the soap dish as being 'broken and cracked' (ts 37).
54 Given his evidence that he did not really take much notice of the soap holder, I am not satisfied on his evidence that there were always bits missing from the soap holder during the time he resided there. It is open on his evidence that the pieces broke away at some point during the time when he first came to reside there and when the plaintiff suffered her injury.
Ms Davis' evidence about the condition of the soap dish
55 Ms Davis said that she showered daily. According to Ms Davis, when the plaintiff came to live at the property there were 12 people living there.
56 Like Mr Taylor, she gave evidence about placing something over the shower tap in the shower in order to hold soap and other items.
57 Ms Davis' evidence about the state of the soap dish was to the effect that, save for believing a very small piece of porcelain had fallen from the soap dish the day before the plaintiff's injury, its condition did not change over time. She said that the soap dish, as depicted in exhibit 1.2, was exactly how it appeared when she first moved into the property.
58 In relation to the events of 19 March 2013 being the day before the plaintiff suffered her injury, Ms Davis said that whilst she was showering she heard something fall to the floor. Although she had not actually seen it fall, when she bent down she discovered a piece of porcelain. She briefly looked at the soap dish but could not see anything different about it. She did not see any sharp edges. She was not entirely sure that the piece of porcelain she found had come from the soap dish (ts 72 - 73).
59 In cross-examination, Ms Davis agreed that prior to the time of her daughter's injury, whenever she had used the shower or cleaned it, she did not see any sharp or jagged edges on the soap dish. She said that although it was not pleasant to look at, she had not contemplated that the soap dish could cause the damage that it did (ts 65).
60 I note that whilst it is for the court to determine whether or not the risk of injury was foreseeable, in considering whether a reasonable person in the defendant's position would have foreseen the risk of injury to the plaintiff, it is relevant to note the fact that none of the witnesses, including Ms Davis, appeared to have contemplated such risk.
61 Unsurprisingly, given Ms Davis' evidence that the state of the soap dish remained unchanged over the period that she lived in the house, yet the photographs (exhibits 1.2 and 1.3) clearly show the soap dish with pieces of porcelain missing and an exposed sharp front edge, counsel for the defendant took Ms Davis to a statement she had made in about April 2013 wherein she had said the following:
Since I have lived here the soap dish has always been broken.
The right-hand side of it had been glued back at some point and the front of the soap dish appears to have post (sic – witness agreed should have read 'lost') the china from it and looks brown and red colour in comparison to the white soap dish.
The soap dish did not present any danger to us in my eyes. The edges were round and not sharp at all.
62 Despite what she had said in her earlier statement, Ms Davis remained of the view that that the condition of the soap dish did not change over time. As with the plaintiff's evidence on this issue, I do not accept the evidence of Ms Davis' in this regard.
Mr Davis' evidence about the condition of the soap dish
63 Mr Davis described the condition of the soap dish at the time that he moved in to the property in May or June 2012 as appearing to have been broken before and had 'dirty lines in it where it had been glued back together … with a glue or an epoxy or something'.
64 He said that 'the face of it … was not smooth. It was … clearly damaged, but there was [sic] no … sharp edges when I first moved in' (ts 76).
65 Like both the plaintiff and Ms Davis, Mr Davis said that he showered every day and did not notice any change in the condition of the soap dish up until the last time he used the shower prior to the plaintiff's injury.
66 Unlike Ms Davis and Mr Taylor, he said that he usually took the soap from the soap dish and had not noticed any sharp edges on the front of it. The evidence from both Mr Taylor and Ms Davis was that the soap and other toiletries were on a shower rack hanging over the shower head and therefore the soap dish was not used.
67 Initially he said that the condition of the soap dish did not change in the time between when he moved in to the property in May 2012 until the date that the plaintiff suffered her injury. Mr Davis took the photographs of the soap dish shortly after the plaintiff suffered her injury. Those photos became exhibits 1.1 - 1.3. However, with reference to exhibit 1.2, his evidence was that the photograph showed a greater damaged area than he remembered when he first moved in. More of the porcelain had broken off.
68 According to Mr Davis, when he first moved in the front part of the porcelain soap dish was not as exposed as it was now depicted in the photograph. He indicated that he remembered that originally an area comprising a couple of centimetres (from the centre of the photo at the bottom towards the left) had broken away, not the much larger exposed area depicted in exhibit 1.2.
69 Whilst Mr Davis was not able to say with absolute certainty when the condition of the soap dish had deteriorated, he was positive that the soap dish did not have a sharp edge, as depicted in the exhibits, a week prior to the day the plaintiff injured herself.
70 Counsel for the defendant took Mr Davis to a hand written statement he had made sometime prior to the trial. Mr Davis conceded that in that statement he had said:
The soap dish had been glued together prior to myself and my family moving into the premises at 106 Paton Road, South Hedland.
Prior to Emily's injury, to the best of my knowledge it was still in a complete state.
71 Whilst conceding in cross-examination what was contained in his earlier statement, Mr Davis went on to clarify that the when he used the words 'a complete state' to describe the soap dish, he meant that whilst there certainly were 'rough edges', there were 'no exposed sharp edges where people could hurt themselves'.
The defendant's evidence about the soap dish
72 As already noted above, the defendant inspected the bathroom prior to purchasing the property in 2010. Although he did not then notice anything amiss in the bathroom, very soon after moving into the property to live in (March 2011) he noticed that the soap dish had been broken and repaired. His evidence about what he noticed about the soap dish included that (ts 134 - 135):
• The glue on the soap dish was discoloured and 'the glue [was] holding the pieces together';
• 'it wasn't porcelain white like it should have been';
• there were cracks, but they were covered with glue so you could not see the cracks themselves;
• there were '[p]robably three or four cracks. The glue underneath seemed to be covering like, sort of smeared; …'
• when he saw that it was broken, he did not touch the soap dish or inspect it by touching it or rubbing it with his hand;
• whilst he lived there, he used the soap dish all the time. He used it to put soap in and to rest the shampoo bottle on top of it;
• whenever he cleaned the bathroom, he cleaned the soap and muck out of the bottom of it.
73 Later, in cross-examination, the defendant confirmed that shortly after moving into the property he became aware that the soap dish had been broken and repaired. This was evident because there was glue in the areas where it was apparent it had previously broken. He noticed that there was glue around a number of pieces on the right-hand side of the soap holder. The glue covered areas where the soap holder had cracked.
74 The glue extend extended over the front portion of the soap holder and underneath the front (ts 145). The defendant accepted that he could see that a piece of white porcelain had been stuck back onto the soap dish at the front (ts 145), however, denied that were any pieces of porcelain missing from the soap dish when he occupied the property.
75 He denied that the soap dish was in the condition depicted in exhibit 1.2 when he moved out of the property in 2012 (ts 146). He did however accept that all of the damaged areas depicted in the photo of the soap dish (exhibit 1.2) were damaged at the time he left the property, albeit that they had been repaired and were covered in 'brown glue' (ts 145).
76 Shortly after the plaintiff suffered the injury, the defendant attended the property. He was shown the soap dish by Mr Davis. The defendant saw a piece had broken off from the soap dish and that it had a sharp, jagged edge along the front of it. It was rough when he touched it.
77 Mr Davis made the soap dish safe by grinding away the sharp, jagged edge and eventually removing the soap dish.
78 The defendant took a number of photographs of the soap dish (exhibit 2) at the time he was shown it by Mr Davis. He had not previously seen the soap dish in that condition.
79 The defendant was shown exhibit 1.2, a photograph showing a close up of the soap dish after the plaintiff had injured herself. He accepted that the photograph accurately depicted the condition of the soap dish when he was shown it by Mr Davis. However, the defendant said that the condition of the soap dish when he saw it after the plaintiff's injury was 'drastically' different to the condition it had been in when last he saw it (ts 141 - 142).
80 As already noted, the defendant maintained that on the last occasion he had seen the soap dish, whilst there were cracks in it, the cracks were not exposed. They were covered in glue. According to the defendant, in contrast to how the soap dish appeared after the plaintiff's injury, the last time he the soap dish it was 'intact' and the cracks, whilst obviously there, were not 'visible' (ts 141). There were no pieces missing from the soap dish when he last saw it.
The expert evidence – Professor Charles Christopher Sorrell
81 The plaintiff called Professor Charles Sorrell, a professor of ceramic engineering at the School of Material Science and Engineering, University of New South Wales.
82 Professor Sorrell had about 40 years professional experience and about 30 years academic experience at the University of New South Wales. He taught about vitreous white wares and had been involved in a number of honours projects. Vitreous white ware was part of the curriculum taught in ceramic engineering.
83 In addition, Professor Sorrell had been involved in at least five cases involving fractured ceramic bodies resulting in sharp edges that caused damage.
84 Over objection by the defendant, I allowed Professor Sorrell to give opinion evidence as an expert in relation to the ceramic soap dish holder and ceramic engineering generally. In particular, after hearing his evidence I found that:
• the field of ceramic engineering was a recognised field of expertise; and
• Professor Sorrell had acquired sufficient knowledge or experience to be qualified to give an expert opinion about relevant matters, including relative strengths of pristine ceramics, epoxy, silicone and glue; and
• the subject matter of Professor Sorrell's evidence fell within the class of subjects upon which expert testimony is permissible; and
• his evidence did not amount to information which was wholly within the knowledge and experience of ordinary persons.
85 Given that the defendant knew of the pre-existing damage to the soap dish, in my view Professor Sorrell's opinion evidence is relevant to the question of whether the risk of harm from the soap dish was a risk that the defendant knew or ought to have known about so that a reasonable person in the defendant's position would have taken precautions against the risk of harm (see ruling at ts 155).
86 In my view, despite the defendant's objection to Professor Sorrell's evidence, at least so far as to the question of the reasonable foreseeability that the repaired soap dish would deteriorate, some of his evidence assists the defendant's case more than the plaintiff's. Ultimately, the defendant relies upon part of Professor Sorrell's evidence (see closing submissions of counsel for the defendant, ts 156).
87 Professor Sorell's report dated 8 April 2016 became exhibit 5. His curriculum vitae became exhibit 6 and the letter of instructions (with annexures) became exhibit 7.
88 Professor Sorrell was asked to provide an opinion in relation to:
1. Whether the reconstructed, or repaired soap holder would have the same structural integrity as a pristine or replacement soap holder; and
2. Whether it was reasonably foreseeable that a repaired soap holder would deteriorate with the passage of time and frequent use of the shower.
89 See exhibit 6 (pars 28 and 30) and exhibit 7 (page 2 of letter of instructions dated 16 February 2016).
90 It is relevant to consider the two separate issues that Professor Sorrell was asked to address in his report and subsequently gave evidence about at the trial.
First Issue: Whether the reconstructed or repaired soap holder would have the same structural integrity as a pristine or replacement soap holder
91 Although he did not physically examine the soap dish, based upon his knowledge, experience and the viewing of the photographs provided to him he concluded that:
• The soap dish consisted of a vitreous glassy white ware which was an aluminous porcelain.
• The adhesive [used to repair the soap dish] probably consisted of an organic polymer, most likely epoxy, but possibly a silicon.
92 Professor Sorrell noted that the photographs of the soap dish holder displayed what he said was a very well-known design of soap holders in Australia. In fact, he had a soap dish holder of the same kind in his own home.
93 In relation to his opinion that the adhesive 'probably consisted of an organic polymer, most likely epoxy, but possibly a silicon', that conclusion was based upon his knowledge that they were common adhesives used to repair ceramics. An alternative possibility was superglue, but as it is water soluble, he concluded that it was not suitable for use in wet atmospheres and was excluded.
94 Professor Sorrell opined that the '[m]echanical properties of ceramics are superior to those of adhesive' and that '[b]oth would have deteriorated over time with the rate and extent of the latter being considerably greater than those of the former'.
95 In relation to the relative strengths of ceramic materials, Professor Sorrell provided data from a very well-known textbook that gave ranges of typical properties. The typical ranges of porcelains fell into the range of between 50 - 100 megapascals which are 'pristine strengths' typically found shortly after manufacture (ts 115). However, the strengths deteriorated over time.
96 In terms of the mechanical strength, Professor Sorrell opined that polymers are weaker than ceramics and ceramics are weaker than metals. Consequently, his opinion was 'polymers are never as strong as a pristine ceramic' and 'if the ceramic has been glued …, then that will be a much weaker strength than the remainder of the body' (ts 115).
97 He was also of the opinion that water had virtually no effect on vitreous white ware save for the surface. On the other hand, polymers, without exception, absorbed water causing their properties to deteriorate over time. This resulted from the polymer swelling, which in turn disturbed the bond. This ultimately weakened the adhesive bond.
98 Professor Sorrell said that there was a significant difference between the use of an epoxy to repair the soap dish as opposed to silicon. Epoxy was relatively brittle but quite strong as far as polymers go. Silicones, on the other hand, are weaker but more readily bondable to a ceramic as they were flexible. Consequently, depending upon which substance was used to repair the soap dish, it would be expected to respond differently when struck.
99 I note however, there is no evidence that the soap dish was damaged as a result of being struck prior to the time that the plaintiff suffered her injury.
100 With reference to the photograph exhibit 1.3, Professor Sorrell could not see any residual silicon. In his opinion when silicone adhesive ruptured, 'you generally see a fair bit of the silicone still adhered [to the object]'. On the other hand, when epoxy typically fails, it 'comes off cleanly'. Since the photos depicted what he believed to be 'a clean break,' he was of the opinion that the substance used in the repair was likely to be an epoxy bond (ts 116).
101 Professor Sorrell concluded that the damage depicted in the photographs was likely to have resulted from a failure of the adhesive, leading to the exposed sharp, fractured surface on the remainder of the soap dish. Furthermore, this would have led to the 'introduction of additional flaws of very significant size, which would have the effect of lowering the strength of the ceramic in an additional amount'.
Second Issue: Whether it was reasonably foreseeable that a repaired soap holder would deteriorate with the passage of time and frequent use of the shower
102 I note thatwhilst Professor Sorrell was not really taken to this issue in any detail and that counsel for the defendant did not ask professor any questions at all, nonetheless in his report Professor Sorrell said:
The degradation of a pristine soap holder would be expected to be significantly slower than that of an organic adhesive. A materials technologist would be aware of these specific phenomena but the general public probably would be familiar with general materials degradation over time. (See report of exhibit 5, Report of Professor Sorrell at par 31).
103 As to the defendant's knowledge about glues and other epoxy substances, the only evidence before me was that he used epoxies as a plasterer (see ts 147).
Conclusions on the evidence: findings of fact about the soap dish
104 The condition of the soap dish in the three to four week period prior to her injury and at the time she suffered the injury is a significant part of the plaintiff's case.
105 On the plaintiff's case, the soap dish, as depicted in exhibits 1.1 - 1.3, remained materially unchanged for the entire three to four weeks leading up to the time of her injury. In fact, on at least her mother's evidence, it remained materially unchanged in the period between August 2012 and 20 March 2013 being the date the plaintiff suffered the injury. Upon a careful analysis of all the evidence, I am not satisfied on the balance of probabilities that this was in fact the case. I have come to this conclusion for the following reasons.
106 Firstly, the defendant's evidence was that although it was clear that the soap dish had been broken and repaired with 'glue' prior to him leasing the property to Ms Davis, it was not then in the condition depicted in the photographs. When he saw the soap dish shortly after the plaintiff's injury, it was 'drastically' different in appearance. The irresistible inference from the defendant's evidence is that the condition of the soap dish did change between August 2012 and 20 March 2013. This is supported by other objective facts set out below.
107 Secondly, the description given by the defendant about the condition of the soap dish when he leased the property to Ms Davis is generally consistent with each of the descriptions given by the plaintiff, Ms Davis and Mr Davis in their written statements made prior to the trial. Noting that each of the plaintiff and her witnesses gave evidence about what they said they had intended to convey in their written statements, they all agreed that they had given the descriptions recorded in their statements. Mr Taylor's evidence about the state of the soap dish when he moved in was also generally consistent with the other witnesses.
108 Thirdly, the prior inconsistent statements identified in the witnesses written statements (which do not include the plaintiff's solicitors' letter of instruction to Professor Sorrell since its contents were not proved pursuant to s 21 and s 22 of the Evidence Act 1906 (WA)), causes me to have serious doubts about the accuracy and reliability of the evidence of the plaintiff, Ms Davis and Mr Taylor with respect to the condition of the soap dish prior to the time that the plaintiff suffered her injury. I note that the period of three years and eight months elapsed between when the plaintiff suffered her injury and when they gave evidence at the trial. I have already noted that the plaintiff's evidence about sharing a room with Mr Taylor was inconsistent with his account.
109 Fourthly, despite the fact that each of the witnesses used the shower regularly, if not daily, at no time prior to the accident did any of the witnesses notice that the soap dish had a sharp jagged edge, yet the photos clearly show the soap dish with a significant area that is exposed and jagged. It is difficult to accept that, if the soap dish did have sharp jagged edges that were exposed for some time, that none of the witnesses noticed it.
110 Fifthly, Mr Davis ultimately conceded that when he moved in to the property the soap dish was not in the condition that it was as depicted in exhibits 1.1 - 1.3. Although he was not certain when the soap dish deteriorated, he was positive that a week prior to the day the plaintiff injured herself the soap dish did not have the sharp edge depicted in the photographs.
111 Sixthly, I accept the evidence of both Ms Davis and the plaintiff that they found small pieces of porcelain on the floor of the shower recess whilst showering on 19 and 20 March 2013 respectively.
112 Seventhly, although it is clear that the plaintiff's elbow came into contact with the soap dish, there is no evidence capable of supporting a conclusion that it was this contact that caused the soap dish to have a jagged or sharp exposed edge.
113 Eighthly, I accept Professor Sorrell's evidence that it is likely that the soap dish was repaired with an epoxy substance which was of a lesser strength than a pristine ceramic.
114 Based upon all of the evidence, I am satisfied on the balance of probabilities that the soap dish gradually deteriorated over the period that Ms Davis occupied the property. I find that two separate porcelain pieces broke away from the soap dish very shortly before the plaintiff suffered her injury. I note that both Ms Davis (the day before on 19 March 2015) and the plaintiff (on 20 March 2015 immediately prior to suffering the injury) found pieces of porcelain on the floor of the shower recess. That evidence is consistent with the expert opinion evidence of Professor Sorrell that:
• it is likely that the substance used to repair the soap dish was an epoxy; and
• the use of an epoxy is likely to result in a clean break.
115 On the available evidence, the soap dish became a danger to users of the shower no earlier than about a week before the plaintiff incurred the injury. Despite this, none of the witnesses were aware of that fact.
Conclusions on the evidence: other relevant findings of fact
116 Significantly, I also find that whilst the defendant attended the property from time to time pursuant to his duties with respect to the maintenance and repair of the premises, there is no evidence that in the period between 27 August 2012 and 20 March 2013 that he:
• ever inspected the soap dish; or
• made any enquiries about the condition of the soap dish; or
• was told by any of the occupiers of the property about the deteriorating condition of the soap dish; or
• became aware that the condition of the soap dish had deteriorated.
The Law relevant to the issue of liability: duty and standard of care
117 As noted above, the plaintiff's pleaded case at trial was that the defendant breached his duty of care to the plaintiff. On the plaintiff's case, that duty of care is said to arise due to both the Occupiers Liability Act 1985 (WA) and the common law.
118 In the context of this case, when considering whether the defendant owed the plaintiff a duty of care and whether that duty was breached, it is necessary to have regard to the following areas of law:
• The common law in negligence;
• The Residential Tenancies Act 1987 (s 42);
• The Occupiers Liability Act 1985 (WA) (s 5 and s 9); and
• The Civil Liability Act 2002 (WA).
The standard of care in common law negligence
119 In Town of Port Hedland v Hodder [No 2] [2012] WASCA 212 (19 December 2012) McLure JA at [271] with reference Mason J's 'classical statement' in Wyong Shire Council v Shirt[1980] HCA 12; (1980) 146 CLR 40, summarised the questions to be considered in determining whether there has been negligent conduct (that is, a breach of a duty of care), namely:
• Firstly, whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff: Wyong (47) (Mason J); and
• Secondly, what a reasonable person would do by way of response to the risk (the negligence calculus), including 'consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have': Wyong (47 - 48) (Mason J).
120 In Department of Housing and Works v Smith[No 2][2010] WASCA 25; (2010) 41 WAR 217 [55] Buss JA summarised the duty of care, at common law, owed by a lessor or an occupier to any other person whose presence may be on premises is reasonably foreseeable, as follows:
• So far as occupiers are concerned, they owe a duty of care at common law to any person whose presence on the premises is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises. See Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, 488 (Mason, Wilson, Deane & Dawson JJ); Phillis v Daly (1988) 15 NSWLR 65, 76 (McHugh JA); Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [17] (Gleeson CJ), [102] (Hayne J).
• A lessor of residential premises owes a duty of care to his or her lessee to take reasonable care to avoid foreseeable risks of harm to the lessee having regard to all the circumstances of the case. See Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [84] (Gaudron J), [100] (McHugh J).
• A lessor of residential premises (whether in his or her capacity as lessor or as occupier) owes a common law duty of care to his or her lessee.
121 InDepartment of Housing and Works v Smith[No 2], Buss JA at [87] went on to summarise some well-established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally under the common law of negligence. They are:
• First, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done.
• Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury.
• Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case.
• Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant.
• Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
Section 42 of the Residential Tenancies Act 1987 (WA)
122 Although the plaintiff originally claimed that the defendant breached his statutory duty of care allegedly owed to the plaintiff pursuant to s 42 of the Residential Tenancies Act 1987 (RTA) (par 6 and pars 13(a) and 13(b) of the plaintiff's statement of claim), that claim was ultimately abandoned. Nonetheless, counsel for the plaintiff ultimately submitted that the relevance of s 42 of the RTAwas that it set out the obligations of a landlord that 'are part of the duty of care that is owed at common law by a landlord to his tenant (see plaintiff's counsel's closing submission, ts 194). The questions to be considered in relation to the standard of care in common law negligence have been set out at [119] - [121] above.
123 The defendant submits that since the plaintiff was not a party to the residential tenancy agreement, no question of a duty of care pursuant to s 42 of the RTA arises for consideration in this case.
124 Section 3 of theRTA defines a 'residential tenancy agreement' tomean 'any agreement, whether or not in writing and whether express or implied, under which any person for valuable consideration grants to any other person a right to occupy, whether exclusively or otherwise, any residential premises, or part of residential premises, for the purpose of residence';
125 A 'tenant' means 'a person who is granted a right of occupancy of residential premises under a residential tenancy agreement' and includes, where the context requires, a prospective, or former, tenant.
126 Section 42 of the RTA sets out the obligations that a lessor has when letting premises. Relevantly, s 42 (2) requires that the lessor:
(a) must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character; and
(b) must maintain the premises in a reasonable state of repair having regard to its age and character and must conduct any repairs within a reasonable period after the need for the repair arises; and
(c) must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.
127 In relation to the lessor's responsibility for cleanliness and repairs, s 42(1) defines 'premises' as includingfixtures and chattels provided with the premises, but does not include -
(a) any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or
(b) any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.
128 Section 49 of the RTA allows for a residential tenancy agreement to provide for, or to exclude, the right of a tenant to sublet the premises.
129 On the evidence, it appears that the plaintiff was not a tenant. There is no dispute that the plaintiff's mother allowed her to live at the premises. The plaintiff was neither paying rent nor board to her mother. She was however, permitted to live at the premises. There is no suggestion that the plaintiff was not lawfully on the premises at the time she was injured.
130 Even if the plaintiff had not ultimately abandoned this aspect of her claim against the defendant, in my view, since the plaintiff was not a tenant, the defendant did not owe any duty of care to the plaintiff pursuant to s 42 of the RTA. In any event, for the reasons that follow, nothing ultimately turns on the question of whether or not she was a tenant.
The Occupiers Liability Act 1985(WA) (the OLA)
131 The plaintiff's claim brought pursuant to s 9 of the OLA is brought on the basis that the defendant breached hisduty of care to her as an entrant to the premises, in respect of dangers arising from any failure in carrying out his responsibilities of maintenance and repair of the premises. More particularly, the plaintiff alleges that the defendant's failure to properly maintain, repair or replace the soap dish makes him liable for the injury she ultimately suffered.
132 Section 9 of the OLA, which sets out the duty of care of owed by a landlord, reads as follows:
(1) 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.
(2) Where premises are occupied or used by virtue of a sub-tenancy, subsection (1) shall apply to any landlord who is responsible for the maintenance or repair of the premises comprised in the sub-tenancy.
(3) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.
(4) This section applies to tenancies created before the commencement of this Act as well as to tenancies created after its commencement.
Did the defendant owe the plaintiff a duty of care pursuant to the OLA?
133 The defendant admits that 'pursuant to s 9 of the OLAhe owed a duty to 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 the act to be shown by an occupier of the premises to persons entering on those premises' (see par 7 of the defence filed 16 March 2015).
134 I note that a 'landlord's' liability pursuant to s 9(1) of the OLAarises in circumstances '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.
135 The evidence from both the plaintiff and Ms Davis was that the plaintiff was an occupier of the premises either pursuant to the original tenancy agreement or alternatively as a sub-tenant.
136 There is no dispute that from about August 2012 the defendant leased the premises to Ms Davis. The lease was pursuant to an oral agreement. Thus, in this case it is clear that the premises were occupied or used by virtue of a tenancy agreement.
137 Nor is there any dispute that, pursuant to the lease, the defendant as landlord was responsible for the maintenance or repair of the premises.
138 In addition to the defendant's admission, made at par 7 of the defence, that pursuant to the OLA he owed a duty of care to persons who may from time to time be on the premises, I note that at par 15 of the defendant's Outline of Submissions' dated 21 November 2016 the defendant admits that he 'had a duty to show towards the plaintiff the care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the rental premises'. However, in oral final submissions counsel for the defendant submitted that no question of a breach of a duty of care pursuant to s 9 of the OLA arises for consideration in this case since the plaintiff was not an 'occupier' of the property.
139 Counsel for the defendant submitted that the occupiers of the property at the relevant time, as that term is understood in in the context of s 9 of the OLA, were Ms Davis and Mr Davis. Counsel for the defendant went on to submit that 'it's the fact of the control that is the basis of the liability' (see counsel for the defendant's closing submissions, ts 177 - 178, 30 November 2016).
140 I do not accept the defendant's submission in this regard. In my view, this submission is inconsistent with the purpose and terms of not only s 9 of the OLA, but theOLAitself.
141 I note that the long title of the OLA reads: 'An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises'. Section 9 is headed 'duty of care of landlord'.
142 The term 'occupier of premises' is defined pursuant to s 2 of theOLAto mean a 'person occupying or having control of land or other premises' (my emphasis added). The fact that the definition of 'occupier of premises' includes either a 'person occupying' or 'having control of land or other premises' indicates that the two terms are not one and the same. Whilst the term occupy is not defined in the OLA, I note that in Jones v Bartlett (16 November 2000) Gaudron J said [80]:
It is trite law that different persons may occupy the same premises at the same time: Wheat v E Lacon & Co Ltd[1966] UKHL 1; [1966] AC 552 at 578, 581 per Lord Denning, 585 per Lord Morris of Borth-y-Gest, 587 per Lord Pearce, 588-591 per Lord Pearson. Once a lessee has entered into possession of premises, however, the lessor no longer occupies those premises: See Voli v Inglewood Shire Council[1963] HCA 15; (1963) 110 CLR 74 at 89 per Windeyer J; Wheat v E Lacon & Co Ltd[1966] UKHL 1; [1966] AC 552 at 579 per Lord Denning.
143 Thus, whilst the plaintiff may not have had the control of the premises, she along with Ms Davis, Mr Davis, Mr Taylor and any other person who resided in the house were occupiers for the purposes of s 9(1) of the OLA.
144 In any event, even if I am wrong about whether or not the plaintiff was an 'occupier' of the premises, it is clear that pursuant to s 9(1) of the OLA a landlord in the position of this defendant (where he was responsible for the maintenance and repair of the premises) owes the same duty of 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 [the OLA] to be shown by an occupier of premises towards persons entering on those premises'.
145 Relevantly, pursuant to s 5(1) of the OLA, the duty of care of an occupier of premises that is required to be shown 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 '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'. The question of whether or not the occupier (or the landlord in the position of the occupier) has discharged their duty of care, in this case requires consideration of at least the following relevant factors, all of which are included in s 5(4) of the OLA. The relevant factors are:
(a) the gravity and likelihood of the probable injury; and
(b) …
(c) the nature of the premises; and
(d) …
(e) the age of the person entering the premises; and
(f) the ability of the person entering the premises to appreciate the danger.
146 Consequently, the defendant owed the plaintiff a duty of care pursuant to s 9(1) of the OLA. I will deal with the question of whether that statutory duty was breached by the defendant below.
The Civil Liability Act 2002 (WA) (CLA)
147 In this case, the 'harm' suffered by the plaintiff occurred on 20 March 2015. Consequently, the CLA applies when determining whether the defendant has breached his duty of care to the plaintiff.
148 The plaintiff bears the onus of proving a breach of duty. This requires the plaintiff to prove, on the balance of probabilities, those matters set out in s 5B(1) of the CLA.
149 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.
150 Section 5B(2) of the CLA provides:
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.
Contributory negligence – s 5K of the CLA
151 As already noted above, the defendant submits in the alternative that, if the defendant was negligent or in breach of a statutory duty, then the injury the plaintiff suffered was caused or contributed to by the plaintiff's own negligence. In this regard, the defendant submits that if prior to the occurrence of the plaintiff's injury, the soap dish had deteriorated to the condition depicted in the photographs shortly after the plaintiff suffered her injury, then the soap dish was clearly dangerous and the plaintiff knew or ought to have known about the risk of harm from the soap dish and the accident was caused by the plaintiff's own negligence. In particular, the defendant submits that the plaintiff was negligent in the ways set out at par 15 of his defence, namely by:
(a) causing her elbow to forcefully strike the soap dish whilst showering;
(b) failing to keep a proper lookout whilst showering;
(c) failing to report to either her mother or the defendant that the soap dish needed repair or replacement; and
(d) failing to take reasonable care for her own safety whilst utilising the shower.
152 Section 5K of the CLA sets out the standard of contributory negligence as follows:
(1) The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
- (2) For that purpose -
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
153 Insofar as the requirement that the 'risk of harm' be not 'insignificant' (s 5B(1)(b) CLA), it has been recognised that this imposes a more demanding standard than the common law test, albeit not by very much: see Marsh v Baxter [2015] WASCA 169 [714] per Newnes & Murphy JA.
154 In determining whether a reasonable person would have taken precautions against a risk of harm (s 5B(1)(c) of the CLA), the court is required to consider the matters set out pursuant to s 5 B(2) of the CLA. In that regard, in Marsh v Baxter, Newnes & Murphy JA at [719] noted:
The observations of Gummow and Hayne JJ in New South Wales v Fahy[2007] HCA 20; (2007) 232 CLR 486 [57], albeit made with reference to the general law, apply equally in the statutory context, namely that '[the inquiry] requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury' (original emphasis).
The interrelationship between the OLA, the CLA and the common law
156 On the other hand, in Department of Housing and Works v Smith [No 2]Buss JA, upon an analysis of Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628 and his Honour's own analysis of s 5B of the CLA, concluded that the CLA does not modify or supplant the common law principles which determine whether a duty of care exists: [74] - [77]. 157 Buss JA went on to consider some well-established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence and concluded that they remain relevant in considering cases of alleged breach of duty by an occupier or lessor. Those propositions have already been set out at [121] - [122] above in relation to the common law in negligence. |
158 In relation to the plaintiff's claims that the defendant breached his duty of care pursuant to the common law and the OLA, it is alleged that his duty to the plaintiff was breached by:
• his failure to provide and maintain a safe environment in which the plaintiff was not exposed to a hazard, such dangers arising from a failure on his part in carrying out his responsibilities of maintenance and repair of the premises (statement of claim par 14(a)(i))
• his failure to ensure the premises were fit for occupation (statement of claim par 12(a))
• his failure to take any reasonable to ensure that the premises were free of defects at the time that the plaintiff and her family commenced their tenancy, and remained free of defects during the term of the tenancy (statement of claim par 12(b))
• his failure to repair, or arrange for a qualified tradesperson, to ensure the dish was replaced, removed or adequately repaired when he knew or ought to have known that the dish was damaged and posed
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