Background In our Legal Directions dated 22 March 2017, we reported on the decision of Taylor v Fisher (2017) WADC 30, in which the District Court of Western Australia held that the defendant’s (Fisher’s) failure to replace and thereafter inspect a soap dish did not give rise to a breach of his duty of care to the plaintiff (Taylor). Taylor lived with her family in a rental property owned by Fisher. On 20 March 2013, Taylor’s left elbow came into contact with a ceramic soap dish, resulting in a deep laceration to her elbow. The soap dish had been broken and repaired prior to Taylor renting the property and her contact caused the soap dish to re-fracture at the site of the repair. Taylor made a claim for damages against Fisher, alleging he had breached his duty owed to her pursuant to s9 of the Occupiers’ Liability Act 1985 (WA) (OLA) and breached his common law duty of care. Fisher did not dispute that Taylor had sustained an injury as a result of her elbow impacting with the soap dish, nor that he owed her statutory and common law duties, but denied that he was in breach of any statutory or common law duty. Decision at first instance The trial judge held that pursuant to s5(1) of the OLA, Fisher – as the lessor of the property – owed Taylor a duty 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. This duty was discharged upon Fisher taking reasonable steps to ensure that the premises were reasonably fit for the purpose for which they were let, namely habitation as a domestic residence. Fisher’s duty was informed by assessment of what constituted a foreseeable risk of harm and the appropriate response to that risk by a reasonable landlord. Although Fisher was aware the soap dish had been broken and repaired, the trial judge held that did not, of itself, lead to a finding that it was a ‘defect’ warranting further repair or replacement. The trial judge was not satisfied that the risk of injury from the soap dish was foreseeable at the time the property was leased because, he held that in order to be foreseeable, Taylor would have been required to establish that Fisher would have had to know or appreciate that the soap dish would deteriorate such that its edges became exposed, jagged or sharp, therefore posing a risk of injury. No such finding was available on the evidence. The trial judge held that Fisher’s duty under 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 landlord by a careful ‘layperson’s inspection’. As there was no evidence that the defect in the soap dish was apparent at the time the property was let (or would worsen in the weeks thereafter), the trial judge held that a reasonable inspection would not have identified the problem. Further, even if Fisher had been made aware or had become aware that the soap dish had deteriorated, the trial judge was not satisfied that a reasonable person in his position should have taken any of the ‘replacement / repair steps’ suggested by Taylor. On appeal On appeal, Taylor argued that the trial judge: erred in concluding that the risk of injury was not reasonably foreseeable, and should have found that Fisher breached the duty of care owed to Taylor by failing to replace the soap dish, thereby obviating the risk of injury. On foreseeability, Taylor asserted that the trial judge erred by positing the test as being triggered by the risk of a set of circumstances occurring that could result in injury, rather than by reference to relevant knowledge of the time at which the risk would materialise. Martin CJ held that Taylor had misconstrued the trial judge’s reasons. He held that the trial judge had in fact correctly found that in order for a risk of injury to users of the shower to be foreseeable, it had to be foreseeable that the soap dish would deteriorate and fail at some point in time, but also in a manner such that the soap dish exposed jagged or sharp edges to users of the shower. In their joint judgment, Murphy and Beech JJA agreed with Martin CJ. Noting the evidence did not establish any obvious signs of deterioration in the soap dish in the two year period between the repair and Taylor’s accident, and accepting Taylor’s general assertion that things that are repaired may, at some point in the future, break again, the Court unanimously held that this general observation did not discharge Taylor’s onus to prove that Fisher knew or ought to have known of an impending failure of the soap dish. Martin CJ held that the soap dish could not have been said to have been in a dangerous condition either at the time the property was leased or any time earlier than a week prior to Taylor’s injury. Martin CJ reiterated that the foreseeability of the risk that the repairs to the soap dish might fail should not be equated with foreseeability of the risk that the soap dish might cause injury. Unless the soap dish had failed such that it exposed a sharp or jagged edge at a time before the property ought to have been inspected, Martin CJ did not consider that a reasonable person in Fisher’s position would have anticipated the possibility of injury. Further, Martin CJ noted that none of the other residents anticipated that the soap dish would deteriorate to expose a sharp or jagged edge. The Court found that Taylor could succeed if it were concluded that the appropriate response to the risk posed by the soap dish was to replace the soap dish prior to any deterioration in its condition. Martin CJ did not conclude that a reasonable person in Fisher’s position would have replaced the soap dish prior to any deterioration being evident, since the evidence established that it was appropriate to undertake repairs. The result may well have been different if the evidence established that the decision to repair rather than replace was objectively unreasonable. Martin CJ held that Fisher’s duty was to regularly inspect the property, but not specifically the soap dish, so as to identify defects ascertainable by a reasonable layperson. The Court upheld the trial judge’s finding that a property owner could not be reasonably expected to have specific (expert) knowledge of the quality of materials such as epoxy glue or the rate at which it deteriorated, or be able to foresee that the soap dish would fail in a manner which created a risk of injury which was not far-fetched or fanciful. The Court noted that the failure of the other users of the shower to notice any defect / deterioration in the soap dish that could give rise to injury supported the trial judge’s objective assessment that a reasonable person in Fisher’s position would not have foreseen that the soap dish would deteriorate in a manner to create a risk of injury. Thus, even if Fisher was in breach of his duty to inspect, such a breach did not give rise to a liability as any such breach did not cause the injury. Accordingly, the Court unanimously dismissed Taylor’s appeal on the foreseeability ground, concluding that the trial judge was correct to conclude a reasonable person in Fisher’s position would not have foreseen the risk of the soap dish failing in a manner which posed a risk of injury to users of the shower. That essentially disposed of the appeal. In any event, Martin CJ also held that had foreseeability been made out, he would not have upheld the second ground of the appeal as, on the facts, a reasonable person in Fisher’s position would not have perceived the magnitude of risk to be significant. Further, a landlord such as Fisher could reasonably expect a tenant to notify him of a development such as the soap dish failing and creating a risk to users of the shower, to enable repairs or interim measures to then be undertaken to make the property safe. Implication of decision This decision clarifies the scope of the duty of care of a landlord, with particular reference to the appropriate approach to be taken in assessing whether a risk of harm was foreseeable and when the risk of harm was ‘not insignificant’. While items that are repaired may break again in the future, this is quite different to actual knowledge that items would break in a manner such as to pose a risk of injury to others. A claimant is required to precisely identify the appropriate response of an objective reasonable person by way of a response to a foreseeable risk at the time of a repair (rather than in hindsight) in order to establish liability Moray & Agnew acted for the landlord at trial and in this appeal.
