It may seem a trivial matter, but a recent Court of Appeal ruling on who was responsible for maintaining the shower recess in a $1,700 per week rental property should be of keen interest to many landlords and insurers.
It may seem a trivial matter, but a recent Court of Appeal ruling on who was responsible for maintaining the shower recess in a $1,700 per week rental property should be of keen interest to many landlords and insurers.
The case concerned a modest three-bedroom house in South Hedland that had 13 tenants at the height of the mining construction boom.
The tenants included Emily Taylor, who suffered a deep laceration to her left elbow when it came into contact with the sharp edges of a damaged ceramic soap dish.
Ms Taylor started proceedings in the District Court claiming damages of $200,000 plus $23,060 special damages from property owner Ben Fisher.
The unusual aspects of this case included Ms Taylor calling the professor of ceramic engineering at the University of New South Wales, Charles Sorrell, as an expert witness.
Despite his testimony on the condition of ceramics and glues, Ms Taylor lost the District Court trial, but then took the case to the Court of Appeal.
In a ruling handed down earlier this month, three Supreme Court justices – Martin, Murphy and Beech – confirmed the landlord was not at fault.
Moray & Agnew partner Kerry Wood, who represented Mr Fisher, said the ruling would be helpful for landlords and their insurers.
"The decision highlights that the duty of a landlord is limited to taking reasonable care to avoid foreseeable risk of injury from defects, of which they are on notice” Ms Wood said.
In this case, Mr Fisher had no knowledge of any problem with the soap dish.
“The Court of Appeal found a reasonable person in his position could reasonably expect that if any problem did arise, the tenants in the house would notice it and ask him to repair the soap dish,” she added.
“It was not incumbent on Mr Fisher to replace the soap dish before any deterioration was evident.
“The trial judge found that a landlord has a duty to inspect their rental premises 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 them aware."
The house in question was built around 1974 and purchased by Mr Fisher in 2010.
While living at the property, he noticed that the soap dish had been broken and repaired it with glue.
In August 2012, Mr Fisher leased the property at a rent of $1,700/week.
In order to offset the high cost of the rent, the leaseholder obtained Mr Fisher's permission to sublet some of the bedrooms and rent out caravans that were placed on the property.
All of the tenants, including people in the caravans, used the single shower inside the house.
In March 2013, Ms Taylor injured herself when her left arm struck the sharp exposed edge of the soap dish, causing her to suffer a deep laceration and severing her ulnar nerve.
The court judgement stated that Ms Taylor had made a good recovery but was likely to experience some permanent deformity to her hand.
Ms Taylor, who was represented by Shine Lawyers, asserted that the soap dish posed a reasonably foreseeable risk of harm and that Mr Fisher had failed to take reasonable steps to avert that foreseeable risk.
The trial judge, Laurie Levy, 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 was aware of the deterioration of the soap dish until Ms Taylor was injured.
Because of this, none of them notified Mr Fisher.
Although Mr Fisher visited the property from time to time for maintenance and repair work, he was not aware of the deteriorating condition of the soap dish.
Judge Levy observed that for the accident to be foreseeable, Mr Fisher would have to 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.
In the Court of Appeal judgement, Justice Martin said no deterioration in the condition of the soap dish was apparent to any of the people regularly using the shower prior to Ms Taylor’s 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,” Justice Martin said.
“Any contrary conclusion could only be reached by in hindsight, having knowledge of the very unusual way in which Ms Taylor suffered her injury.”
His conclusion was supported by justices Murphy and Beech.
“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,” they wrote in the judgement.
