The NSW Court of Appeal considered the liability of a landlord of commercial premises to a person who was injured while working there. The claim against the landlord had been dismissed at trial.

The premises were used as a factory by the injured man’s employer. The injured man gave evidence that during the course of his employment the concrete floor deteriorated, developing cracks and holes. He stepped into one of those holes when alighting from the forklift and injured his ankle.

The employer’s practice had been to fill the cracks/holes, but the fill would itself deteriorate over time. There was no evidence that the floor had any problems when the premises were first let to the employer. There was evidence of a meeting which took place five months before the accident. Notes of the meeting were brief and did not even clearly indicate who was present. The notes included: Floor – forks breaking concrete edging. The Court found that the context of the meeting was the employer’s desire to move to smaller premises and the ‘make good’ works which it would be required to undertake at its cost before leaving.

The Court had regard to the provisions in the NSW Civil Liability Act, which are the same as the corresponding ones in the Victorian Wrongs Act, that a person is not negligent in failing to take precautions against the risk of harm unless the risk was one of which the person knew or ought to have known and the risk was not insignificant and a reasonable person would have taken those precautions. The Court added:

As between an occupier-tenant, on the one hand, and the landlord on the other, of commercial premises, liability for injuries sustained by an entrant onto the premises will primarily rest with the occupier-tenant, because the tenant is generally in possession and has control of the premises and can determine who enters and under what conditions.  However, everything must depend on the particular circumstances of each case.

The Court had regard to the requirements in the lease that the tenant must immediately make good any damage caused by the tenant, and immediately give notice to the landlord of any defect in the premises or of any circumstances likely to occasion injury within the premises. The Court found that the landlord had not been informed about the problems with the concrete floor.

The Court did not allow the injured man to raise at the appeal a new point, namely that the tenant had no obligation to fix the floor because the damage amounted to ‘fair wear and tear’ for which, under the lease, the tenant had no responsibility.

The Court confirmed both the dismissal of the claim and the order that the injured man pay the landlord’s legal costs.

Aldred v Stelcad Pty Ltd.

While landlords of commercial premises owe a duty of care to persons entering the premises, the primary duty of care remains with the tenant-occupier.  The extent of the landlord’s duty may be defined in part by the terms of the lease.