Published tribunal order
Tenancy Tribunal case 4626691 — Property damage
Decided 9 Oct 2023 · Published 9 Oct 2023 · Application 4626691
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
- The tenants’ claim for repayment of $400 paid for damage to the cook top is dismissed.
- The tenants are not liable to the landlord for the $169 cost of unblocking the washing machine pump.
Reasons
- One of the two tenants attended the hearing. Ms Bayliss attended for the landlord. Cook Top
- The tenant who did not attend the hearing was using the cook top in the premises and she reached up to the cupboard above the range hood to take down a soy sauce bottle to use in her cooking. She dropped the bottle and it fell onto the cook top damaging it. It had to be replaced and the landlord required the tenants to pay, and the tenants paid, the landlord’s $400 insurance excess.
- The tenants have applied for repayment of the $400 because they say the damage was the result of an accident, not their carelessness.
- Tenants must not carelessly damage the premises. Where damage beyond fair wear and tear occurs during the tenancy, it is for the tenant to prove that the damage was not caused by their carelessness.
- Carelessness means negligence. Negligence requires a breach of a duty of care. The duty of care in this case is to take such care as a reasonable and prudent person would take in the circumstances.
- There is a principle that applies where the facts speak for themselves. This allows an inference of negligence to be drawn from the fact of the event itself. This requires that the damage would not ordinarily occur without negligence, the defendant (in this case the tenants) has such control over the thing in question that it points to a breach of duty on their part and there is an absence of or inadequacy of explanation for the event.
- The tenants have pointed to some cases decided in the Tenancy Tribunal. They are not helpful. These types of cases depend on their own facts. One of the cases referred to involved the tenant dropping a food mixer on a cook top and the Tribunal found the tenant not to be liable. The Adjudicator found that it was an accident, not carelessness. There is an obvious similarity to this case. I can’t say how I would have decided that case because I did not hear it. But I may have decided it differently.
- I find that use of the word “accident’ in this context is not helpful. The tenant did not intend to damage the cook top and in that sense, it was plainly an accident. But that does not help to determine whether it was careless. Accidents happen all the time. Often, perhaps mostly, they are the result of someone’s carelessness. Car accidents are a good example. Occasionally they are no one’s fault, such as when they are caused by an unexpected mechanical failure. Mostly, they are the result of one or both drivers’ negligence.
- In my view, this is a case where the facts speak for themselves. I would not expect someone to drop a bottle in these circumstances if they took reasonable care. By that I mean the person taking care that they had a good hold of the bottle and concentrating on what they were doing. The care required is more because the person must reach high for the bottle and there is an obvious risk that if it is dropped, there will be significant damage to the cook top below. As well, it was not the best place to keep bottles.
- There was no evidence from the tenant who dropped the bottle and so no explanation was offered that displaces the inference of negligence. I find, therefore, that this was careless damage and therefore the tenants were liable for the insurance excess. The tenant’s claim for repayment is therefore dismissed. Washing Machine
- The washing machine was not working, and the tenants reported it to the landlords. They called out a technician who found that the pump was blocked by what the landlord called a toggle that had come off an article of clothing put by the tenants in the washing machine. The landlord produced a photograph of the “toggle”, and the tenant produced the article of clothing being a pair of track pants.
- I would not call the thing that caused the blockage a toggle. I would call it a ferule. It is a metal cap at the end of the pants pull cord that prevents the end of the cord from fraying.
- The question is, would a reasonable and prudent person in the circumstances have put the pants in the washing machine or would they have done something else such as handwashing them or putting them in a washing bag before putting them in the washing machine?
- There are some people who may have put them in a washing bag or may have hand washed them, but I do not accept that is what any reasonable and prudent person would have done in the circumstances. Things can come off clothing in the washing machine. For example, buttons can come off. But people do not generally put clothes with buttons in a washing bag. Indeed, I don’t accept that washing bags are very widely used and when they are used it would usually be to protect the clothes put in them not to protect the washing machine.
- I find that it was not careless of the tenants to put the pants in the washing machine. Ms Bayliss said that it was unfair that the landlord should have to pay for the call-out in the circumstances. But that is not the test. The test is whether the tenants were careless. If the tenants were not careless, the cost falls on the landlord, whether that seems fair or not. It follows that the tenants are not liable for the cost of calling out the technician and I have made a declaration to that affect. Filing Fee
- The tenants have had limited success and I so make no order for payment of the filing fee. Suppression
- In all the circumstances I would be unfair to the tenants to name them in this order. There is no public interest in doing so. I have therefore granted them name suppression.