Taylor v Fisher

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TAYLOR -v- FISHER [2018] WASCA 126
CORAM:   MARTIN CJ
MURPHY JA
BEECH JA

HEARD:   19 FEBRUARY 2018
DELIVERED          :   1 AUGUST 2018
FILE NO/S:   CACV 32 of 2017
BETWEEN:   EMILY BRITT TAYLOR
Appellant
AND
BENJAMIN FISHER
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number             :   CIV 2488 of 2014

Catchwords:

Torts - Negligence - Occupier's liability - Injury caused by deteriorated ceramic soap dish - Foreseeability of deterioration and injury - Breach of duty - Whether landlord required to replace soap dish

Legislation:

Civil Liability Act 2002 (WA), s 5B
Occupiers Liability Act 1985 (WA), s 5, s 9
Residential Tenancies Act 1987 (WA), s 42

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr J R Criddle
Respondent	:	Ms B A Mangan

Solicitors:

Appellant	:	Shine Lawyers
Respondent	:	Moray & Agnew

Case(s) referred to in decision(s):

Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313
Taylor v Fisher [2017] WADC 30
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

MARTIN CJ:

The appellant, Ms Emily Britt Taylor, suffered a deep laceration to her left elbow when it came into contact with the sharp edges of a damaged ceramic soap dish affixed to the wall of the shower recess in a residential property in South Hedland. She commenced proceedings in the District Court of Western Australia claiming damages from the respondent, Mr Benjamin Royce Fisher, who was the owner of the property.
The trial judge concluded that the risk of injury from contact with the soap dish was not reasonably foreseeable. He also concluded that a reasonable person in the position of Mr Fisher would not have taken the measures proposed on behalf of Ms Taylor in order to avert the risk of injury. For those reasons, he found that Mr Fisher had not breached the duty of care owed to Ms Taylor, and her claim was dismissed.
Ms Taylor appeals from that decision. She contends that the trial judge was wrong to find that the risk of injury was not foreseeable. She also contends that the trial judge should have found that Mr Fisher breached the duty of care which he owed to her by failing to replace the soap dish prior to her suffering injury.
For the reasons which follow, neither of those contentions should be accepted and the appeal should be dismissed.

The facts

No challenge is made to the findings of primary fact made by the trial judge. Rather, each of the two grounds of appeal is limited to challenging the conclusions drawn from those findings of primary fact. It follows that the facts relevant to the resolution of the grounds of appeal can be taken from the findings made by the trial judge, and that it is unnecessary to refer to the evidence.
The house in which Ms Taylor sustained her injuries was built in around 1974. It comprised three bedrooms, a dining room, a kitchen, a laundry, a toilet and a single bathroom. Mr Fisher inspected the bathroom before purchasing the property in 2010. However, he could not recall examining the soap dish at that time. According to Mr Fisher, the property was in reasonable living condition at the time it was purchased.
After purchasing the property, Mr Fisher rented it to tenants for approximately six months before living at the property himself for a period of approximately 16-17 months. Soon after moving to live at the property, Mr Fisher noticed that the soap dish had been broken and repaired with glue.
Shortly after Mr Fisher commenced living at the property, Ms Taylor's brother, Mr Joshua Taylor, moved to live at the property with Mr Fisher. In about May 2012, Ms Taylor's stepfather (Mr Davis) also moved into the property. In about July or August 2012, Ms Taylor's mother (Ms Davis) also moved into the property and Mr Fisher moved out.
From about 27 August 2012, by way of informal oral agreement, Mr Fisher leased the property to Ms Davis at a rent of $1700 per week. In order to offset the high cost of the rent, Ms Davis sought and obtained Mr Fisher's permission to sublet some of the bedrooms of the property, and to rent accommodation in the form of caravans that were placed on the property. Mr Fisher accepted that he was aware that the occupants of the caravans would be using the bathroom in the house. As South Hedland regularly experiences hot temperatures, it was expected that all those residing at the property would use the shower on a regular basis, as was the fact.
Pursuant to the informal lease between Mr Fisher and Ms Davis, Mr Fisher remained responsible for the maintenance and repair of the property. He would perform any minor maintenance work required at the property himself. When work of a more substantial or specialist kind was required, he would arrange for an appropriate contractor to undertake the work. Mr Fisher relied upon Ms Davis to notify him of any repairs or maintenance required. Pursuant to this arrangement, Ms Davis notified Mr Fisher of work that was required on various occasions, including an occasion on which Mr Fisher arranged for a qualified person to repair the airconditioning at the property, and another occasion on which he arranged for a plumber to fix the toilet.
In about February 2013, Ms Taylor moved to live at the property. Although she spent most nights at the residence of her boyfriend, she would generally return to the property in the morning to shower before going to work. At this time, about 13 people were living in the house and in caravans situated on the property.
On the morning of 20 March 2013, Ms Taylor injured herself whilst having a shower at the property. Her left arm struck the sharp exposed edge of the soap dish, causing her to suffer a deep laceration to the medial aspect of her left elbow and severing her ulnar nerve. The injury sustained was significant, and resulted in motor and sensory neuropathy. While Ms Taylor has made a good recovery, she is likely to experience some permanent deformity to her hand. Prior to trial, the parties agreed that Ms Taylor's damages should be assessed at $200,000 plus special damages of $23,060.32, subject to any reduction for contributory negligence.

Findings of fact relating to the soap dish

At trial, Mr Fisher, Ms Taylor, and Ms Taylor's brother, mother and stepfather gave evidence relating to the condition of the soap dish in the period prior to Ms Taylor's injury. The evidence given by those witnesses was inconsistent in a number of respects. The trial judge resolved those inconsistencies by making the following findings of fact.
Soon after moving to live at the property Mr Fisher noticed that the soap dish had been broken and repaired. He observed 'brown glue' covering the fracture line along the front of the soap dish. However, the soap dish did not have any sharp, exposed edges during the period Mr Fisher resided at the property.
The condition of the soap dish gradually deteriorated over the time Ms Davis rented the property from Mr Fisher. Shortly before Ms Taylor suffered her injury, at least two porcelain pieces broke away from the soap dish. One of those pieces was discovered on the floor of the shower recess by Ms Davis on the day prior to Ms Taylor's injury. Another was discovered by Ms Taylor immediately prior to sustaining her injury.
The trial judge found that the soap dish became dangerous to users of the shower no earlier than about a week before Ms Taylor suffered her injury. However, none of the users of the shower were aware of the deterioration of the soap dish until Ms Taylor was injured. Because none of the occupiers of the property were aware of the deterioration of the soap dish, none of them notified Mr Fisher of any issue with respect to the condition of the soap dish. Although Mr Fisher visited the property from time to time in order to attend to maintenance and repair work, he was not aware of the deteriorating condition of the soap dish.

The expert evidence

The trial judge dismissed an objection to the expert evidence of Professor Charles Christopher Sorrell, professor of ceramic engineering at the University of New South Wales. Professor Sorrell expressed the opinion that the soap dish was probably made of vitreous whiteware, and that the adhesive which had been used to repair the soap dish was probably an organic polymer - most likely an epoxy. Professor Sorrell expressed the view that while vitreous whiteware was virtually unaffected by water, polymers generally absorbed water which caused them to swell and their properties to deteriorate. Accordingly, a ceramic soap dish repaired with polymer material would not have the same structural integrity as a pristine ceramic soap dish. In Professor Sorrell's opinion, it was likely that the damage to the soap dish had resulted from the deterioration of the adhesive with which it had been repaired.
In a written report which formed part of Professor Sorrell's evidence, he commented on the extent to which it was reasonably foreseeable that a repaired soap dish would deteriorate over time with frequent use of the shower. He observed:
The degradation of a pristine soapholder 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 only with general materials degradation over time.
The trial judge generally accepted the evidence given by Professor Sorrell.

Ms Taylor's claim

On the basis of these facts, Ms Taylor claimed that Mr Fisher breached a duty of care which he owed to her pursuant to s 9 of the Occupiers Liability Act 1985 (WA) and at common law. Although Ms Taylor had also pleaded that Mr Fisher breached a duty of care owed to her by reason of a term to be implied into the lease between Mr Fisher and Ms Davis, and by s 42 of the Residential Tenancies Act 1987 (WA), neither of those claims were pursued at trial.
Ms Taylor asserted that the soap dish posed a reasonably foreseeable risk of harm to occupiers of the premises, and that Mr Fisher had failed to take reasonable steps to avert that foreseeable risk. It was asserted on her behalf that Mr Fisher breached the duty of care which he owed to Ms Taylor by failing to, among other things:
(a)ensure that the premises were fit for occupation;
(b)take reasonable steps to ensure that the premises were free from defects at the time that Ms Taylor's family began leasing the property from Mr Fisher;
(c)repair, replace or remove the soap dish, or arrange for the repair, replacement or removal of the soap dish; or
(d)warn entrants to the property of the risk of injury posed by the damaged soap dish.
In the argument in support of the appeal, the focus of attention was upon the proposition that an appropriate response to the foreseeable risk posed by the damaged soap dish was to replace the dish entirely before it failed and posed a risk to occupiers of the premises.

The trial judge's reasons

After referring to the evidence and making the findings of fact which I have summarised above, the trial judge referred to a number of authorities relating to the standard of care at common law. He then considered a number of arguments which had been advanced in relation to s 9 of the Occupiers Liability Act, and concluded that Mr Fisher owed Ms Taylor a duty of care pursuant to that section. He observed that the question of whether Mr Fisher had discharged that duty of care required consideration of the following factors specified in s 5(4) of the Occupiers Liability Act, namely:
(a)the gravity and likelihood of the probable injury; and
…
(c)the nature of 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.
The trial judge then directed his attention to the Civil Liability Act 2002 (WA), and set out s 5B(1) and s 5B(2) of that Act, which provide:
(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.
The trial judge noted observations made in this court in Marsh v Baxter[1] to the effect that the statutory requirement that a foreseeable risk be 'not insignificant' imposes a slightly more demanding standard than the common law test. The trial judge also referred to other decisions of this court relating to the relationship between the Civil Liability Act, the Occupiers Liability Act, and the duty of care at common law. However, as both parties to this appeal were content to present their arguments on the basis that, in the circumstances of this case, there were no material differences between the statutory and common law duties, it is unnecessary to explore those issues.
[1] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [714] (Newnes & Murphy JJA).
The trial judge observed that while Mr Fisher was clearly aware that the soap dish had been broken and repaired, this did not automatically mean that the repaired soap dish constituted a defect which he was obliged to rectify. In that context he cited the following passage from the reasons of Gleeson CJ in Jones v Bartlett:[2]
There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective …
[2] Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [23] (Gleeson CJ).
The trial judge then observed:[3]
In my view, the evidence of Professor Sorrell to the effect that whilst a materials technologist would be aware that '[t]he degradation of a pristine soap holder would be expected to be significantly slower than that of an organic adhesive' but the general public would probably only be 'familiar with general materials degradation over time' (see report of exhibit 5, Report of Professor Sorrell at par 31) is significant. There is no evidence that the defendant had any special knowledge about the rate at which a repaired soap dish would deteriorate. He was not required to commission an expert to examine the soap dish.
At the time that he leased the property to the plaintiff's family, despite his knowledge that the soap dish had previously been broken and repaired, I am not satisfied that the risk of injury from the soap dish was foreseeable at the time the defendant leased the property to the plaintiff's family. To be foreseeable, the defendant would have to know or appreciate not only that the soap dish would deteriorate, but that it would deteriorate in such a way as to become exposed, jagged or sharp posing a risk to users.
[3] Taylor v Fisher [2017] WADC 30 [174] - [175] (reasons).
The trial judge then addressed the question of the steps which Mr Fisher should have taken to prevent the risk of injury to people who might have been on the property from time to time. In that context he observed, in relation to Mr Fisher:[4]
… knowing that the property was old and that the soap dish had been repaired, he was required to inspect the property from time to time in order to avoid any foreseeable risk of injury from defects which would be obvious to a reasonable person and of which an appropriate inspection might make him aware.
The difficulty for the plaintiff in this case is that, even if the defendant had routinely inspected the property, including the soap dish, there is no evidence that such an inspection would have made him aware of any obvious defect to the soap dish that might give rise to a foreseeable risk of injury to the plaintiff or any other person.
Whilst I have found that the defendant had a duty to inspect the property from time to time, that duty would not extend to inspecting the property daily, or indeed making enquiries on a daily basis.
None of the occupants of the property at the time of the plaintiff's injury who gave evidence at the trial, all of whom regularly used the shower, noticed any defect that could be considered to be a dangerous defect that would or might cause injury to persons using the shower in an ordinary way. None of the occupants had become aware of any unusual danger arising from the condition of the soap dish. No-one had put the defendant on notice that the condition of the soap dish was such that a reasonable person would have foreseen that his failure to remove or further repair the soap dish involved a risk of injury to the plaintiff.
Furthermore, prior to 19 March 2013 (the first occasion that a piece of porcelain was potentially noted to have broken away from the soap dish), even if the defendant had been made aware, or become aware from inspecting the soap dish, that the condition of the soap dish had deteriorated, I am not satisfied that a reasonable person in the position of the defendant, taking into account the magnitude of the risk and the degree of the probability of its occurrence, should have taken any of the precautions suggested by the plaintiff. I note that even at that stage Ms Davis, who must have looked at the soap dish to consider whether the piece she saw on the shower recess had come from it, did not notice any sharp or jagged edges.
The plaintiff, whilst showering and prior to suffering her injury did not notice that the soap dish might pose a risk to her safety.
If no one noticed the danger posed by the soap dish, it is difficult to see how it could be said that the risk of injury was reasonably foreseeable.
Consequently, I am not satisfied that the defendant's failure to inspect the soap dish gives rise to a breach of his duty of care to the plaintiff in all the circumstances of this case.
[4] Reasons [178] - [185].
Although the grounds of appeal and the submissions advanced in support of those grounds of appeal appear to presume that Ms Taylor's claim was dismissed entirely because of an adverse conclusion with respect to the foreseeability of risk, it is apparent from the passage set out above that in fact the trial judge also addressed the issue of breach, and concluded that he was not satisfied that a reasonable person in the position of Mr Fisher should have taken any of the precautions suggested on behalf of Ms Taylor. The better view therefore appears to be that the trial judge dismissed the claim not only because he did not consider that the risk of injury to Ms Taylor was foreseeable, but also because even if the risk had been foreseeable, the magnitude of the risk and the degree of the probability of its occurrence were not such as to require a reasonable person in Mr Fisher's position to take any action to reduce or eliminate that risk.

The grounds of appeal

There are two grounds of appeal. The first ground challenges the trial judge's conclusion that the risk of injury was not reasonably foreseeable. The second ground asserts that the trial judge should have found that Mr Fisher breached the duty of care which he owed to Ms Taylor by failing to replace the soap dish and thereby obviating the risk of injury.

Ground 1 - foreseeability

Before addressing the specific arguments advanced by Ms Taylor in support of the ground of appeal relating to foreseeability, it is desirable to make some general observations with respect to the legal principles involved.
The two-step process involved in assessing whether there has been a breach of a duty of care is conveniently enunciated in the classic passage from the judgment of Mason J in Wyong Shire Council v Shirt:[5]
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.
[5] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47.
In the same judgment, Mason J described a risk of injury as being foreseeable if it was 'not far-fetched or fanciful'. He observed:[6]
[F]oreseeability of the risk of injury and the likelihood of that risk occurring are two different things … [C]onsequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.
[6] Shirt, 47.
Consistently with these observations, the common law test for foreseeability has been described on a number of occasions as 'undemanding'. As I have already noted, in this case it is unnecessary to consider whether, or to what extent, the statutory test imposed by s 5B(1) of the Civil Liability Act - namely, that the risk be 'not insignificant' - imposes a more demanding test.

Foreseeability - Ms Taylor's arguments and their resolution

Ms Taylor has provided particulars in support of the ground of appeal relating to foreseeability. Those particulars raise three specific issues. In addition, another specific issue has been raised in the written submissions filed on behalf of Ms Taylor. I will deal with each of those issues in turn.
The first particular given in support of the ground of appeal relating to foreseeability asserts that the trial judge erred by positing the test for foreseeability as being triggered by the risk of a set of circumstances occurring that could cause injury, and not by knowledge of the time at which the risk would materialise. As particularised, the proposition is a little difficult to follow. Its essence emerges from the written submissions, which contend that the trial judge erred by 'requiring foreknowledge of the precise moment of the repair's failure rather than the knowledge of an impending failure, which is the point at which the precaution was required.' The error is said to be manifest in par 175 of the trial judge's reasons.[7]
[7] See above at [27].
The fundamental problem with this particular is that it misconstrues the trial judge's reasons. The trial judge did not posit the test of foreseeability on the basis that a reasonable person in the position of Mr Fisher had to be aware of the point in time at which the soap dish would fail. To the contrary, the essence of the reasoning of the trial judge, evident in the paragraph of his reasons to which Ms Taylor specifically refers, is that in order for a risk of injury to users of the shower to be foreseeable, it had to be foreseeable not only that the soap dish would deteriorate and fail at some point in time, but also that it would fail in such a way as to expose jagged or sharp edges to users of the shower.
That analysis cannot be faulted. The relevant risk was the risk of injury. Failure of the soap dish would not create a risk of injury unless the failure resulted in the creation of sharp or jagged edges. Counsel for Ms Taylor did not suggest otherwise[8] and particular 1.2.1 of ground 1 is formulated on that basis. So, the reasoning of the trial judge was not based upon any assumption to the effect that a reasonable person in the position of Mr Fisher had to be able to foresee the time at which the soap dish would fail, but rather upon the proposition that a reasonable person in the position of Mr Fisher had to be able to foresee not just that the soap dish would fail, but that it would fail in such a way as to create a risk of injury by exposing jagged or sharp edges.
[8] Appeal ts, 6-8, 13, 17, 21.
For these reasons, the first aspect of the argument advanced in support of the attack upon the trial judge's conclusion with respect to foreseeability misconceives the reasoning of the trial judge.
The second particular provided in support of this ground of appeal asserts that the trial judge erred by failing to have regard to concessions said to have been made by counsel for Mr Fisher during the trial. The statements by counsel upon which this aspect of the ground relies were made in the course of argument relating to the admissibility of Professor Sorrell's evidence. The objection appears to have been advanced on the basis that expert opinion was not required to resolve the question of whether a reconstructed or repaired soap holder would have the same structural integrity as an undamaged soap holder. In that context, counsel submitted:[9]
And the only role that Professor Sorrell could possibly have would be almost as an advocate role to further articulate the reasons why everyone knows that soap holders that have been repaired, or ceramics that have been repaired with glue - we only have to think about broken china in our grandmother's china cupboard to know how the broken ones will break again, and that's just common knowledge.
[9] ts 105.
A little later, in the same context, counsel for Mr Fisher observed:[10]
[T]he starting point for the defendant is that overall it's a matter of common knowledge that these things do deteriorate over time, and there's a lot of pressure put on that soap dish in the circumstances of this case.
[10] ts 106.
There is a real question as to whether propositions advanced by counsel in the course of argument with respect to the admissibility of evidence should properly be construed as concessions binding Mr Fisher. However, even assuming for the sake of argument that these observations do constitute concessions binding Mr Fisher, it is important to identify their precise scope. In essence, counsel was observing that a reasonable person would understand that a repaired soap dish would not have the same structural integrity as an unblemished soap dish, and that a reasonable person would also expect that a repaired soap dish would deteriorate over time. Significantly, there was no concession made with respect to the time over which a reasonable person would expect the soap dish to deteriorate and, in particular, whether a reasonable person would expect deterioration to the point of failure within the foreseeable future. Nor was there any concession to the effect that a reasonable person would foresee that deterioration of a repaired soap dish over time would result in the exposure of jagged or sharp edges which would create a risk of injury.[11] So, even if the statements made by counsel were treated as concessions binding Mr Fisher, they do not bear upon the critical question which was whether a reasonable person in Mr Fisher's position would have foreseen a risk that was not far-fetched or fanciful that the soap dish would fail within the foreseeable future, in such a way as to expose a jagged or sharp edge creating a risk of injury to users of the shower. It follows that this aspect of the submissions advanced on behalf of Ms Taylor in support of the first ground of appeal does not advance Ms Taylor's case.
[11] This is significant in light of the reasoning adopted by the trial judge and in light of what is said in [38] above.
It is convenient to now deal with an issue raised in the written submissions arising from the trial judge's acceptance of Professor Sorrell's evidence, in the portion of his reasons set out above at [27]. On behalf of Ms Taylor it is submitted that the trial judge's reliance upon Professor Sorrell's evidence suggests that he incorrectly applied a subjective standard, or that the assessment of foreseeability was a matter for evidence rather than determination by the court (although in the result it seems that this latter aspect is not pressed).
When the reasons of the trial judge are read as a whole, there can be no doubt that he understood that the test for foreseeability was an objective test to be applied by reference to a reasonable person in the position of Mr Fisher. Professor Sorrell's evidence was a convenient way for the trial judge to enunciate a view which he had himself formed, to the effect that members of the general public would not have any special knowledge of the quality of materials such as epoxy glues or the likely rate at which such materials would deteriorate. It is again necessary to point out that the reasoning of the trial judge did not depend so much upon an assessment of the point in time at which a reasonable person might think that the dish would fail, but rather upon the unlikelihood of a reasonable person foreseeing that the dish would fail in such a manner as to create a risk of injury which was not far‑fetched or fanciful.
The last specific matter particularised on behalf of Ms Taylor in support of ground 1 focuses upon the trial judge's conclusion that Mr Fisher:[12]
… knowing that the property was old and that the soap dish had been repaired … was required to inspect the property from time to time in order to avoid any foreseeable risk of injury from defects which would be obvious to a reasonable person and of which an appropriate inspection might make him aware.
[12] Reasons [178].
Ms Taylor contends that this conclusion is inconsistent with the conclusion that the risk of injury from the soap dish was not foreseeable.
With respect to the trial judge, it is difficult to apprehend precisely what he intended to convey by referring to the soap dish in the context of his conclusion that Mr Fisher was obliged to inspect the property from time to time. What does appear clear, however, is that the trial judge did not find that Mr Fisher was under a duty to inspect the soap dish. That conclusion follows from the reference in the passage I have cited at [28] above to the requirement that Mr Fisher inspect for defects 'which would be obvious to a reasonable person and of which an appropriate inspection might make him aware', followed by observations to the effect that regular inspection of the soap dish would not have made him aware of any defect. That conclusion is reinforced by the trial judge's observations that none of the residents of the property, including Ms Taylor, noticed any defect in the soap dish even though they were regularly using the shower.
Reading his reasons as a whole, it is clear that the trial judge has found that while Mr Fisher may have been under a duty to regularly inspect the property, he was not under a duty to regularly inspect the soap dish. That conclusion is entirely consistent with the trial judge's conclusion that a reasonable person in Mr Fisher's position would not have foreseen that the soap dish would deteriorate in such a way as to expose jagged or sharp edges, thereby creating a risk of injury.
For these reasons, the specific attacks upon the reasons of the trial judge with respect to foreseeability must be rejected. However, it remains to be considered whether error has been demonstrated in the trial judge's conclusion that, on the facts which he found, the risk of injury from the soap dish was not foreseeable.
The factual circumstances in Jones were, in some respects, not dissimilar to the circumstances of the present case. In that case, the adult son of the tenants of domestic premises suffered injury when he accidentally walked into an internal glass door. He asserted that the glass in the door did not comply with contemporary safety standards, and claimed damages from the landlord.
As I have noted,[13] the trial judge relied upon the observations made by Gleeson CJ in Jones.
[13] At [26] above.
In Jones, Gaudron J reiterated views she had expressed in the earlier decision of Northern Sandblasting Pty Ltd v Harris[14] to the effect that the duty owed by a landlord was a duty 'to take reasonable care for [the] safety [of those who constitute the tenant's household] by putting and keeping the premises in a safe state of repair'.[15] She rejected the proposition that there should be recognised a duty on the part of a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone can make them.[16]
[14] Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313.
[15] Jones [88].
[16] Jones [90].
Gummow and Hayne JJ observed:[17]
Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in irregular fashion and ordinarily would not be dangerous when so used.
[17] Jones [178].
Turning to the circumstances of the present case, the soap dish could not be said to have been in a dangerous condition either at the time Mr Fisher leased the premises to Ms Davis, or, on the findings of the trial judge, at any time earlier than one week before Ms Taylor suffered her injury. The soap dish did not pose any risk of injury to any of the residents unless and until two events had occurred:
(a)the glue holding the soap dish together deteriorated to the point at which the dish started to disintegrate; and
(b)the dish disintegrated in such a way as to expose jagged or sharp edges.
The question posed by the first ground of appeal is whether a reasonable man in Mr Fisher's position would have foreseen the risk that both of those matters might occur in the foreseeable future, and that the risk of their occurrence was not far-fetched or fanciful.
As I have noted many times, foreseeability of the risk that the repairs to the soap dish might fail is not to be equated with foreseeability of the risk that the soap dish might cause injury. That risk would only be foreseen if it could be foreseen that the soap dish would fail in such a way as to expose jagged or sharp edges to prospective users of the shower. In that regard I respectfully agree with the trial judge's conclusion that a reasonable person in the position of Mr Fisher would not have foreseen the risk of the soap dish deteriorating in such a way as to become a risk to the safety of users of the shower. Soap dishes are inherently innocuous objects. Unless and until this soap dish failed in such a way as to expose a jagged or sharp edge, I do not consider that a reasonable person in Mr Fisher's position would have anticipated that possibility. I agree with the trial judge that it is of some significance that none of the residents of the premises who gave evidence anticipated the possibility. Nor, even after the possibility had eventuated, did they observe or report the risk during the days preceding Ms Taylor's injury.

Conclusion - ground 1

The trial judge was correct to conclude that a reasonable person in Mr Fisher's position would not have foreseen the risk of the soap dish failing in such a way as to pose a risk of injury to users of the shower. None of the criticisms of the reasoning of the trial judge advanced in support of this ground of appeal have been made out. The ground of appeal must be dismissed.

Ground 2 - breach

This conclusion is sufficient to dispose of the appeal. However, for the sake of completeness, I will address ground 2 on the assumption that a different conclusion had been reached in respect of ground 1. There is, however, significant artificiality in this process, because the question of whether there has been a breach of duty requires consideration of the foreseeable risk, including the magnitude of the risk, the degree of the probability of its occurrence, and the nature of the injury likely to be caused in the event that the risk materialises.
The propositions of law summarised by Buss JA in Department of Housing and Works v Smith [No 2][18] in relation to the liability of an occupier or lessor are relevant to the second ground of appeal:
In my opinion, some well‑established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence, remain relevant in considering cases of alleged breach of duty by an occupier or lessor. 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. Second, 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. Third, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourth, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifth, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness: see New South Wales v Fahy (2007) 232 CLR 486 at [7] per Gleeson CJ; at [57] ‑ [58] per Gummow and Hayne JJ; Neindorf v Junkovic (2005) 80 ALJR 341 at [93] per Hayne J; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 at [3] per Gleeson CJ and Kirby J; at [50] per Hayne J; Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] ‑ [129] per Hayne J; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 at [36] per Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ; Illawarra Area Health Service v Dell [2005] NSWCA 381 at [85] per Mason P (Handley JA and Young CJ agreeing); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309 per Mason, Wilson and Dawson JJ.
[18] Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [87].
It must be assumed, for the purposes of argument in relation to ground 2, that the risk of injury being suffered as a consequence of the deterioration of the soap dish was reasonably foreseeable. However, even if that assumption is made, for the reasons I have given, a reasonable person in the position of Mr Fisher would not have perceived the magnitude of that risk to be great. Further, a reasonable person in the position of Mr Fisher would have proceeded on the assumption that if the soap dish failed in such a way as to pose a risk of injury to users of the shower, that fact would quickly be reported to him in order that repairs might be undertaken. A reasonable person in Mr Fisher's position would also have assumed that if the failure of the soap dish was such as to cause a significant risk of injury prior to repair works being undertaken, interim measures could and would be taken to reduce the

risk of injury - such as smoothing down the sharp or jagged edges, or covering them with something such as masking tape.

The position adopted on behalf of Ms Taylor on appeal implicitly accepts that Ms Taylor's claim could only succeed if it were concluded that the appropriate response to the perception of a risk that the soap dish might fail and pose a risk of injury was to replace the soap dish before any deterioration in its condition became apparent. That is because the evidence established that no deterioration in the condition of the soap dish was apparent to any of the people regularly using the shower prior to Ms Taylor suffering her injury. In the circumstances of this case, I do not consider that a reasonable person in Mr Fisher's position would have considered that the risk of possible deterioration and consequent injury necessitated replacement of the soap dish before any deterioration was evident. Any contrary conclusion could only be reached by in hindsight, having knowledge of the very unusual way in which Ms Taylor suffered her injury.

For these short reasons, even if I had concluded that ground 1 of the appeal should be upheld, I would not have upheld ground 2. This is another reason why Ms Taylor's appeal must be dismissed.

Conclusion

Each ground of appeal, and the appeal, must be dismissed for the reasons I have given.

MURPHY & BEECH JJA:

This is an appeal against a decision of Levy DCJ: Taylor v Fisher.[19] The appellant (the plaintiff) was living in premises owned by the respondent (the defendant) and leased, at the relevant time, by the plaintiff's mother. On 20 March 2013, the plaintiff injured herself while showering at the property when her left elbow came into contact with the ceramic soap dish on the wall of the shower recess. The contact caused the plaintiff to suffer a significant injury, namely a deep laceration to the medial aspect of her left elbow. The plaintiff sued the defendant for negligence in causing her injury. The primary judge dismissed the plaintiff's claim and she now

appeals that decision. For the reasons which follow, we would dismiss the appeal.

[19] Taylor v Fisher [2017] WADC 30 (primary decision).

Background

The background facts found by the trial judge are not in dispute. His Honour's findings included the following matters.

The premises and their occupation

The premises at which the accident occurred were residential premises in South Hedland. The house on the property was built in 1974.[20]
[20] Primary decision [18].
The defendant purchased the property in 2010. He then rented the property for about six months. In March 2011, he returned to live on the property.[21]
[21] Primary decision [20] - [21].
The defendant moved out of the property again in about July/August 2012. At around this time, he leased the property to the plaintiff's mother, Ms Davis.[22]
[22] Primary decision [21], [23] ‑ [24].
Ms Davis sought and obtained the defendant's permission to sublet the premises.[23]
[23] Primary decision [25].
The plaintiff moved into the premises in February 2013.[24] There were about 12 people living in the house then.[25] The defendant knew that occupiers of the house and some caravans on the property would be using the bathroom in the house.[26]

The soap dish

[24] Primary decision [27].

[25] Primary decision [55].

[26] Primary decision [26].

During the period in which the plaintiff lived at the house, the soap dish was not the only receptacle in use for soap in the shower recess. A shower rack, hung around the showerhead, was also used, at least by Ms Davis and the plaintiff, for holding soap, shampoo, etc.[27]
[27] Primary decision [50], [56].
The soap dish was made of porcelain and had been repaired with the use of an epoxy.[28] It was in that condition when the defendant moved into the property in March 2011.[29] The property was, in March 2011, in the same condition as it was when he purchased it in 2010.[30]
[28] Primary decision [113], [159].
[29] Primary decision [22], [72].
[30] Primary decision [21].
The soap dish was intact with no exposed or visible cracks in the period March 2011 to August 2012 when the defendant leased the property to Ms Davis.[31]
[31] Primary decision [80], [106] - [107].
Although the ceramic dish gradually deteriorated over the period of the lease to Ms Davis, the first time it had an exposed jagged edge was no earlier than about 13 March 2013, a week before the accident.[32]
[32] Primary decision [104] - [115].
Two separate pieces of porcelain broke off the ceramic soap dish on 19 and 20 March 2013.[33]
[33] Primary decision [114], [159].
Even then, none of the witnesses using the shower in the relevant period had observed the soap dish to be in a dangerous condition.[34]
[34] Primary decision [115], [159].
The soap dish posed a risk of injury to users of the shower on the day of the accident, 20 March 2013.[35]
[35] Primary decision [159].

The plaintiff's claim

The plaintiff alleged that the defendant breached his common law and statutory duties by:[36]
1.failing 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;
2.failing to ensure the premises were fit for occupation;
3.failing to take any reasonable precautions 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;
4.failing 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 a hazard or risk of injury to the plaintiff;
5.failing to warn the plaintiff that the dish was damaged and/or unsafe and posed a hazard or risk of injury;
6.failing to take any or any reasonable steps to rectify the identified defects, when he knew or ought to have known that the dish posed a risk of injury to the plaintiff, within a reasonable amount of time;
7.permitting the plaintiff to reside at the premises when he knew or ought to have known that the soap dish posed a risk of injury to the plaintiff; and
8.failing to take any or reasonable care for the safety of the plaintiff.
[36] Primary decision [158].

Expert evidence

The plaintiff called Professor Sorrell to give expert evidence. Professor Sorrell was a professor of ceramic engineering at the School of Material Science and Engineering, University of New South Wales. He taught about 'vitreous white wares'[37] and had been involved in a number of honours projects in that regard. He also had previously given evidence in five cases involving 'fractured ceramic bodies'.[38]
[37] Primary decision [82].
[38] Primary decision [81] - [83].
Professor Sorrell was asked by the plaintiff to provide an opinion in relation to:[39]
1.whether the repaired soap dish would have had the same structural integrity as a 'pristine or replacement soap holder'; and
2.whether it was reasonably foreseeable that the repaired soap dish would deteriorate with the passage of time and frequent use of the shower.
[39] Primary decision [88].
The defendant's counsel objected to the evidence. She said, in effect, that the evidence was inadmissible because it was common knowledge that ceramics repaired with glue may at some stage break, and common knowledge that things deteriorate over time.[40] The judge overruled her objection.[41]
[40] ts 103 - 107.
[41] ts 108, 154 - 155.
Professor Sorrell's evidence was relevantly to the effect that (1) the soap dish was likely to have been ceramic,[42] although he did not inspect it,[43] (2) the repairs to the soap dish were likely to have been made by an epoxy adhesive,[44] (3) epoxy, which is a polymer, absorbs water over time, and, like any polymer, epoxy deteriorates at a faster rate than ceramics,[45] (4) the 'specific phenomena' relevant to the rate of deterioration of epoxy would be known to a 'materials technologist', but 'the general public would be familiar only with general materials degradation over time'[46], and (5) the damage to the soap dish in March 2013 was likely to have arisen from the failure of the epoxy adhesive.[47]
[42] Professor Sorrell specifically said the soap dish was likely a vitreous, glassy white ware which is an aluminous porcelain, which is a type of ceramic; ts 113.
[43] Primary decision [91].
[44] Primary decision [91].
[45] Primary decision [91], [97].
[46] Primary decision [102], [174]; GB 51.
[47] Primary decision [101].

The primary judge's findings on negligence

The primary judge first considered the position as at the time when the defendant leased the premises to Ms Davis in around August 2012.[48]
[48] Primary decision [162] - [175].
The judge's findings were to the following effect:
1.The defendant noticed that the ceramic soap dish had been broken and repaired with glue when he moved in, around March 2011.[49]
2.None of the witnesses, including Ms Davis, ever contemplated the risk of injury arising from the ceramic soap dish.[50]
3.The defendant neither knew nor ought to have known of the rate at which the repaired dish would deteriorate.[51]
4.At the time he leased the property, the defendant neither knew nor ought to have known that any deterioration to the ceramic soap dish during the lease would reach the point where the soap dish would be left with exposed jagged or sharp edges.[52]
[49] Primary decision [22], [72], [106].
[50] Primary decision [60], [184].
[51] Primary decision [116], [174].
[52] Primary decision [173] - [175].
As to the third of those findings, the judge said:[53]
In my view, the evidence of Professor Sorrell to the effect that whilst a materials technologist would be aware that '[t]he degradation of a pristine soap holder would be expected to be significantly slower than that of an organic adhesive' but the general public would probably only be 'familiar with general materials degradation over time' (see report of exhibit 5, Report of Professor Sorrell at par 31) is significant. There is no evidence that the defendant had any special knowledge about the rate at which a repaired soap dish would deteriorate. He was not required to commission an expert to examine the soap dish.
[53] Primary decision [174].
His Honour then considered the position after the commencement of the lease of the premises to Ms Davis.[54] His Honour found, in effect, that:
1.the defendant, as landlord of an old home, was required to 'inspect the property from time to time in order to avoid any foreseeable risk of injury from defects which would be obvious to a reasonable person and of which an appropriate inspection might make him aware';[55]
2.the 'duty' to inspect did not require daily inspections or the making of daily enquiries;[56]
3.the soap dish did not, in any event, reveal any obvious defect which would have been visible on inspection;[57]
4.no one had notified the defendant that the soap dish had deteriorated such that it involved a risk of injury;[58] and
5.if, in the period prior to around 19 March 2013, the defendant had, upon inspection, become aware that the soap dish had deteriorated, any inspection would not have revealed any jagged or sharp edges.[59]
[54] Primary decision [176] - [186].
[55] Primary decision [178].
[56] Primary decision [180].
[57] Primary decision [179].
[58] Primary decision [181].
[59] Primary decision [182].
The judge concluded that he was not satisfied that the defendant's failure to inspect the soap dish gave rise to a breach of his duty of care to the plaintiff in all the circumstances of the case.[60]
[60] Primary decision [185].
It is evident, when the primary judge's reasons are read as a whole, that his Honour had drawn a distinction between a gradual deterioration in the strength of the epoxy with no sign of cracking or potential fracture of the dish, and a deterioration to the point where the epoxy failed to the extent that the soap dish was left with jagged or sharp edges.

Grounds of appeal

The first ground of appeal alleges that the primary judge erred in finding that 'the risk of injury from a deterioration of a repair to a ceramic soap dish was not reasonably foreseeable'.
In substance, the plaintiff relies on three contentions.
The first is to the effect that judge erred in law in his treatment of the issue of foreseeability. The particulars to this ground are not, with respect, easy to follow. In substance, the first point seems to be captured in the following parts of the plaintiff's written submissions:[61]
[The judge] erred in requiring foreknowledge of the precise moment of the repair's failure rather than the knowledge of an impending failure which is the point at which the precaution was required.
…
[The judge] should have found that [knowing that up to 13 people would be using the shower on a daily basis, the defendant] would have been aware that the damaged soap dish would be under significant pressure and would accordingly likely to fail sooner rather than later. (emphasis added)
[61] Plaintiff's written submissions, par 24, 33.
The plaintiff's counsel illustrated these propositions by reference to a suggested analogy. It was said that the defendant's conduct was comparable with a person who allows a car to be driven by another knowing that the nuts on the wheel are loose. If someone allows the car to be driven knowing that the wheel nuts are loose, it is foreseeable that, in the absence of tightening the nuts, 'the wheel will come off its rim'.[62]
[62] Plaintiff's written submissions, par 25.
The second point raised by the plaintiff under ground 1 is that the judge erred in 'failing to have any regard to the concessions made by the [defendant's] counsel' at trial.
Thirdly, it is said that given other findings made by his Honour,[63] the judge erred in failing to find that there was a 'not insignificant risk that the repaired ceramic soap dish would continue to deteriorate to the point of exposing sharp edges'.[64]
[63] Primary decision [115], [159], [162], [163], [178].
[64] Particulars, par 1.2.1. Plaintiff's grounds of appeal, particular 1.2.1.
Further, there is some criticism of the judge's reliance on that part of Professor Sorrell's evidence referred to in [84] above.[65]
[65] Plaintiff's written submissions, pars 28 - 34.
Ground 2 alleges that the judge erred in fact in finding that the defendant had not breached his duty of care. It is alleged that the judge should have found that the defendant breached his duty of care 'by failing to take the precaution of replacing the soap dish which would have obviated the risk of injury to the [plaintiff]'.

Disposition

Ground 1

In written submissions, the plaintiff accepted that, in relation to foreseeability, the relevant questions were (1) whether the risk of harm was foreseeable in the sense that the defendant 'knew or ought to have known of the risk', and (2) that the risk was 'not insignificant'.[66]
[66] Plaintiff's written submissions, pars 19 - 23, with reference to s 5B(1)(a) and (b) of the Civil Liability Act 2002 (WA).
The judge did not, as the appellant asserts, find that 'foreknowledge of the precise moment of the repair's failure'[67] was required. Rather, the judge directed his attention to whether it was reasonably foreseeable that the soap dish would deteriorate or fail in such a way as to pose a risk of injury to users.[68] There is no error in that approach.
[67] Plaintiff's written submissions, par 24.
[68] Primary decision [175].
On the unchallenged findings of fact, there was no cracking or other visible evidence of any, even minor, deterioration in the repaired soap dish in the period from at least March 2011 to mid‑March 2013. A general understanding, in the abstract, that things that are repaired may, at some time in the future, break again is an insufficient basis for the assertion that, at the time of the grant of lease, the defendant knew or ought to have known 'of an impending failure', or that the soap dish would 'likely … fail sooner rather than later'.[69] Yet, both those assertions underpin the allegation that the judge misunderstood or misapplied the test of foreseeability.
[69] Plaintiff's written submissions, pars 24, 33.
Further, the suggested analogy with the car is inapposite. A car is an inherently dangerous thing as it is in motion and travels at speed. The nuts on the wheel are ordinarily concealed under the hubcap. If the wheel nuts are loose, in the ordinary course the wheel will loosen and the driver's ability to control the car is materially impaired. There is no real similarity with a repaired ceramic soap dish attached to a wall that has been functioning for at least two years with no sign of cracking or other deterioration. If the wheel nuts loosen and the driver loses control, the prospect of a serious accident is high. If a soap dish fails, in the ordinary course the soap goes somewhere else until the dish is fixed or replaced.
There is no substance to the first point raised under ground 1.
As to the second point, the relevant statements by counsel for the defendant[70] were not 'concessions'. They were objections to the evidence on the basis that questions of foreseeability and a reasonable response to the risk were to be determined, in the circumstances, by reference to common knowledge and experience, rather than the expertise of a professor of ceramic engineering. Whilst, it might be thought, there was much force in the objections, they were overruled and Professor Sorrell's opinions were admitted into evidence to be assessed along with all the other evidence in the case. The objections made by counsel for the defendant did not amount to a concession that the risk of injury to the plaintiff was foreseeable in the sense that the defendant knew or ought to have known about the risk, or to a concession that the risk of injury was not insignificant.
[70] ts 105 - 106.
As to the third point, the findings that:
1.the defendant knew that there was a 'defect' in the soap dish, in that he knew it had been broken and repaired with glue;[71]
2.knowing this, the defendant was obliged to inspect the property from time to time to avoid any foreseeable risk of injury from defects of which an inspection might have made him aware;[72] and
3.the soap dish had gradually deteriorated over the period between 2012 and 20 March 2013,[73]
are not inconsistent with the judge's conclusion on foreseeability and do not sustain the plaintiff's case. Any duty of inspection does not assist the plaintiff's case because, as the judge found,[74] given that none of the occupants of the property who regularly used the shower noticed any defect in the soap dish that could give rise to a risk of injury, there was nothing to suggest that an inspection by the defendant would have made him aware of anything more than what he already knew about the soap dish.
[71] Primary decision [176].
[72] Primary decision [178].
[73] Primary decision [159].
[74] Primary decision [179] - [181].
On the unchallenged findings of primary fact, and in light of the observations referred to in [98] above, the plaintiff had not established that the risk of injury from the presence of the soap dish was not insignificant. However, even if that conclusion were wrong, the plaintiff, in order to succeed in the appeal, must establish ground 2, referred to in [105] ‑ [107] below.
As to the plaintiff's criticism of the judge's reference to Professor Sorrell's evidence referred to in [84] above, that is an unusual complaint given that the evidence comes from Professor Sorrell's report which was tendered by the plaintiff and admitted into evidence over the objection of the defendant. In any event, insofar as the judge found that a reasonable person in the position of the defendant would not be aware of the phenomena relevant to the rate of deterioration of epoxy, he was clearly correct. But the judge did not need to rely on Professor Sorrell's evidence in that regard. The judge's finding is capable of support on the basis of the application of common sense. No relevant error is established. We would dismiss ground 1.

Ground 2

A failure to eliminate a reasonably foreseeable risk does not establish negligence.[75] Proper enquiry at the breach stage involves identifying with some precision what a reasonable person would have done by way of response to the foreseeable risk.[76] It is fundamental that the question of whether a defendant breached its duty to exercise reasonable care is to be approached prospectively, not with the benefit of hindsight.[77]
[75] Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [3]; Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [356].
[76] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [192]; Amaca [356].
[77] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [105], [126] - [129]; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [47].

Ground 2 of the grounds of appeal is expressed in language which, impermissibly, has a retrospective focus. The question is not whether the soap dish should have been replaced so as to obviate the risk of injury to the plaintiff, but whether, viewed prospectively at the time of the grant of the lease, a reasonable response to the risk of injury to users of the shower required the defendant to install a new soap dish in the shower recess.
The obviousness of the risk and the remoteness of the likelihood that others will fail to observe it and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response to a foreseeable risk.[78] It was open to the judge, on the undisputed findings of fact, to find that the defendant was not negligent. The prospect that repaired things may, over time, fail is a matter of common experience. The defendant had no insight in that respect which was not available to the plaintiff and other users of the house. Further, the defendant was in no better position than the plaintiff to observe the condition of the soap dish. It was fixed to the wall adjacent to the wall on which the shower head and taps were fixed. There is nothing to suggest that the shower recess area was a particularly narrow or confined space. There was ample room for the plaintiff and other users of the house to avoid the soap dish in the event that it did deteriorate to the point where it might cause injury. A reasonable person in the position of the defendant could reasonably expect that if any problem did emerge with the condition of the soap dish, any resulting hazard would be observable by those living in the house and he would be notified so as to enable him to effect any necessary repairs or replacement.
[78] Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [35] ‑ [36].
We would dismiss ground 2.

Conclusion

The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE MARTIN
1 AUGUST 2018

[2018] WASCA 126

1 AUGUST 2018

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Duty of Care

Breach of Duty