LANDLORD NOT LIABLE IN SOAP DISH CASE
March 22, 2017
Taylor v Fisher  WADC 30
The plaintiff moved from Queensland to South Hedland in Western Australia to live with her family in a rental property owned by the defendant (the property). Her mother, stepfather and brother resided at the property.
On 20 March 2013, three to four weeks after she moved in, the plaintiff’s left elbow came into contact with a ceramic soap dish in the shower of the property, which resulted in a deep laceration to the medial aspect of her left elbow. There was no dispute between the parties that the plaintiff’s elbow had come into contact with the soap dish and that she suffered injury as a result.
The plaintiff’s case
The plaintiff claimed that the soap dish was damaged and posed a danger to users of the shower at the property. The plaintiff maintained that the damage was depicted in photographs that were taken of the soap dish shortly after she suffered her injury, and that the condition of the soap dish remained unchanged from the time that she moved in. The photographs of the soap dish (taken following the plaintiff’s injury) depicted sharp and jagged edges, with pieces missing from the edge of the soap dish.
The plaintiff claimed that the defendant had breached the duty of care owed to her pursuant to s9 of the Occupiers’ Liability Act 1985 (WA) (OLA) and pursuant to the common law duty of care. The plaintiff alleged that the defendant was negligent in failing to rectify the damaged 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 maintained that the danger posed by the soap dish was reasonably foreseeable.
The plaintiff further pleaded that the defendant breached his duty of care by reason of implied terms of a tenancy agreement and pursuant to s42 of the Residential Tenancies Act 1987 (WA); however, this claim was ultimately abandoned by the plaintiff.
The matter proceeded to trial on the issue of liability alone, with quantum being agreed.
Findings of fact
The condition of the soap dish in the weeks leading up to the plaintiff’s injury formed a significant part of the plaintiff’s case.
There was no dispute that prior to leasing the property, the defendant was aware that the soap dish had been damaged and repaired with an epoxy, which repair was weaker than a pristine ceramic or porcelain soap dish.
The plaintiff asserted that the condition of the soap dish had at all times been unsafe and dangerous. The defendant’s case was that the soap dish did not have sharp or exposed edges and did not pose a danger to persons using the shower at the time the property was leased. The defendant’s evidence was that the soap dish was drastically different in appearance on the day of the accident than when the property was inspected at the time it was let.
His Honour accepted the defendant’s case on the facts based on the evidence of the plaintiff, her mother, her brother and stepfather, who had not noticed any sharp edges on the soap dish at the time they moved into the property. In particular, His Honour found it difficult to accept that had the soap dish had been unsafe for an elongated period, as the shower had been used on a daily basis by four people, none of whom noticed any defect.
The plaintiff and her mother gave evidence that they found small pieces of ‘porcelain’ on the shower floor the day prior to and on the day of the injury (19 and 20 March 2013). This supported His Honour’s finding that the soap dish gradually deteriorated over time, with two pieces breaking away from the soap dish on 19 and 20 March 2013 respectively. By the time the plaintiff had sustained her injury, the soap dish had become a danger to the occupants of the property and posed a risk of injury to users of the shower.
There was no evidence that the defendant inspected the soap dish, made any enquiries regarding the soap dish, nor was he told by the occupiers of the property as to the deteriorating condition of the soap dish or made aware that the soap dish had deteriorated.
Issue for determination
The issue for consideration was whether the defendant had breached any duty of care owed to the plaintiff, having regard to what he knew at the time he leased the property, and whether he should have taken any steps or precautions to prevent the risk of injury.
This required assessment of the appropriate and reasonable conduct in circumstances where the defendant knew the soap dish had been broken and repaired prior to leasing the property, but was not aware of any deterioration in the soap dish. Further, an issue arose as to whether, in the light of the risk of harm, and having regard to the age and character of the property, a reasonable landlord would have replaced the soap dish.
Pursuant to s5(1) of the OLA, the duty of care of an occupier to a person entering onto 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. Thus, the defendant – as a lessor of residential premises – owed the plaintiff a duty of care to take reasonable care to avoid foreseeable risks of harm arising from the condition of the premises and by any failure to undertake maintenance and repair of the premises.
His Honour held that the defendant would discharge that duty by taking reasonable steps to ensure the premises were reasonably fit for the purpose for which they were let, namely habitation as a domestic residence. His Honour endorsed the authorities that established that a residential landlord does not owe a duty to ensure the property is absent of defects, nor to commission experts to inspect premises to identify latent defects, nor to make the premises as safe as reasonable care can make them. The defendant’s duty was determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.
While the defendant was aware the soap dish had been broken and repaired, this did not necessarily mean it was a ‘defect’ warranting further repair or replacement. A ‘defect’ giving rise to an obligation to repair is something more than a condition capable of causing injury (Sakoua v Williams  NSWCA 405 (2005) 64 NSWLR 588 ).
His Honour was not satisfied that the risk of injury from the soap dish was foreseeable at the time the defendant leased the property, even after finding that the defendant knew that the soap dish had been damaged prior to leasing the property and had been repaired. In order to be foreseeable, the defendant would have to know or appreciate that the soap dish would deteriorate in such a manner so that its edges became exposed, jagged or sharp, therefore posing a risk to others. No such finding was available in the circumstances.
His Honour held that the defendant’s duty pursuant to the OLA was to inspect the 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 him aware. There was no evidence that the defect causative of the accident was apparent at the time the property was let or would develop in the four weeks thereafter. Thus no reasonable inspection would have identified the problem.
Even if the defendant had been made aware or had become aware that the soap dish had deteriorated, His Honour was not satisfied that a reasonable person in his position should have taken any of the precautions suggested by the plaintiff. Neither the plaintiff nor her mother, having seen pieces of porcelain on the floor of the shower, noticed any sharp edges on the soap dish and did not contemplate a risk of injury. His Honour found it difficult to find that the risk of injury was foreseeable, given no one noticed the danger of the soap dish.
His Honour dismissed the plaintiff’s action, holding that the defendant’s failure to replace and thereafter inspect the soap dish did not give rise to a breach of his duty of care to the plaintiff.
This case makes it clear that a landlord’s duty extends to ensuring a residential property is fit for the purpose for which it was let; however, this duty is limited to taking reasonable care to avoid foreseeable risk of injury from defects of which a landlord is on notice.
A landlord has a duty pursuant to the OLA to inspect a 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 him aware. However, in this case, the plaintiff failed in her claim as she was unable to show that an inspection would have made the defendant landlord aware of any danger posed by the soap dish.
Moray & Agnew acted for the landlord in this successful defence.
Authored by Kerry Wood, Partner and Anna Chacko, Associate, Perth.
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