Written by Peter CarterMarch 17, 2019
Ben Fisher purchased his Port Hedland three-bedder in 2010. Six months or so later he noticed that the soap holder on the wall of the shower recess – in the residence’s only bathroom – had been broken and repaired with “brown glue”.
Down the track a further 18 months, he was able to secure a lucrative rent for the Paton Rd home – at $1.7k/week – when he leased to Katrecia Davis on terms she could sub-let rooms and use space on the property as sites to rent to caravanners.
Fisher – a plasterer at the time of the incident – agreed that maintenance under the informal tenancy remained his obligation. He fixed minor jobs himself and hired tradesmen where required. He relied upon his tenant to notify any maintenance issues.
Emily Taylor – Katrecia’s daughter – moved from Queensland in February 2013 to join her mother, stepfather and brother at the home. By then 13 people were occupying the home and caravans in its yard – all using the same bathroom not the least for frequent showers due to the sweltering heat.
A month or so after taking up residence, – having spent the night at her boyfriend’s place – Emily returned to the residence to get ready for work.
She noticed (and disposed of) a porcelain fragment on the floor of the cubicle as she entered the shower enclosure but didn’t observe any difference in the soap holder’s appearance.
Emily began her shower. As she was rinsing, her left arm struck a sharp exposed edge of the soap dish producing a deep painful gash to her elbow and severing her ulnar nerve.
Ambulanced from the bloody scene to Hedland Hospital, she was then airlifted to Royal Perth Hospital for surgery.
In the inevitable injury compensation lawsuit that followed Emily contended the landlord ought to have been frequently checking the shower cubicle to determine the state of the glue-up job.
Neurologist Ross Goodhart attested to the motor and sensory neuropathy that had developed and the permanent deformity to her left hand and forearm. On the basis of that evidence and the report of plastic surgeon Jeremy Rawlins, the parties agreed the loss that Emily should be awarded – if her claim were to be successful – at $223k.
The possibility that the glue might fail and pose a risk of injury – so her argument ran – ought to have been obvious to the landlord and his failure to conduct those inspections was a breach of duty for which his insurer was liable.
Emily recruited Prof Charles Sorrell – a UNSW ceramic engineer – to provide expert evidence. The professor postulated the “brown glue” most likely had been an epoxy which over time deteriorated as it absorbed water and expanded.
It was in his view a poor choice of adhesive that did not improve the object’s structural integrity.
Doing the best he could to project the trajectory of the soap holder’s failure, Judge Laurence Levy in Perth’s District Court divined that the glue had begun to deteriorate not long before the accident and the dish itself had become a real hazard to those using the shower cubicle only in the prior 7 days.
He reasoned that the risk of injury was not foreseeable. Moreover even if it was, it would be unreasonable for Fisher – who by now had ceased to be a plasterer to become a pastor – to be required to inspect the property for defects on a daily basis.
After all, none of the occupants had put Fisher on notice that the shower accessory was deteriorating and Mrs Davis herself didn’t notice any sharp or jagged edges on the soap dish when she also had found a piece of porcelain that had come away from it the day before the bloody injury had occurred.
Emily appealed. Fisher had been aware the broken ceramic dish had “three or four cracks” covered in a glue, she emphasized and “that a piece of white porcelain had been stuck back onto the soap dish at the front”.
He ought therefore to be taken to have been aware of its potential danger.
And never being able to be sure – she stressed – at exactly what point the glue-job he had by his conduct approved would fail, he ought to have replaced the object if he weren’t able to increase his safety inspections.
Not so ruled the appeal judges. The fact that a fitting had been the subject of a repair did not automatically raise an obligation to carry out future inspections if the landlord was not kept appraised of its condition.
Chief Justice Wayne Martin in one of his last judgments before retirement put the conclusion as follows: “Soap dishes are inherently innocuous objects,” he wrote.
“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 fail in such a way as to expose jagged or sharp edges to prospective users of the shower.
“Unless and until [it] 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”.
Even if the injury was foreseeable, a reasonable person in Fisher’s position would not have perceived the magnitude of risk to Emily or any other occupant “to be great”.
What does this mean for investors?
Pastor Fisher escaped liability in the above circumstance, but landlords should not assume that similar events will always result in the same outcome.
It is in a landlord’s best interests to keep a resister of repairs to items that might need eventual replacement so that the condition of those items can be flagged with tenants and inspected regularly.
And now we know porcelain bathroom fittings can prove dangerous, check your soap holders!