Who is legally responsible, or liable, if you, the tenant, are injured on or in your rented premises? In this article Richard Faulks and co-author Eddie Stewart talk about circumstances in which your landlord may be held liable.

Who is liable?

There are many circumstances in which a tenant, occupying premises owned by a landlord, may be injured while using or taking part in activities on the premises. In some circumstances the landlord is liable for the tenant’s injury, even though the tenant is the occupier of the premises – and even if the tenant is aware of the danger that causes the injury.

Lloyd v Thornbury [2019] NSWCA 154

This recent NSW Court of Appeal case illustrates this issue more clearly. The tenant, Dustin Thornbury, was injured when he fell into a hole in the backyard of the residential premises which he was renting from Gerard Lloyd.

The injury

Mr Thornbury fell into a hole after he had rushed across the yard to break up a fight between his two dogs and a third dog that had entered the yard. The hole was one of four that had been dug by a plumber in the previous week to try and fix a drainage problem. Both the landlord, Mr Lloyd, and the injured tenant, Mr Thornbury, were aware of the activity and the holes. In fact, Mr Thornbury had been present when the holes were dug.

Mr Thornbury suffered significant injury and sued both the plumber who dug the holes and the landlord, Mr Lloyd. There was some evidence that Mr Lloyd knew about the potential danger as he had tried to erect barriers around the holes, using poles and safety barrier mesh, but had run out of material.

The ruling

The District Court found that the plaintiff (the tenant) should succeed against the landlord but not the plumber. That finding was upheld by the NSW Court of Appeal. It was accepted that a reasonable person in the landlord’s position would have taken the precaution of backfilling or barricading the holes before the incident. As such, the landlord, Mr Lloyd, had breached his duty of care to his tenant and was found liable.

Contributory negligence

Not surprisingly, Mr Thornbury was also found to have contributed to his injury and there was a finding of 40% contributory negligence. The Court of Appeal also found that that was reasonable.

Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7

This recent case in the Victorian Court of Appeal demonstrates the concept of ‘agency’ in relation to landlords’ and real estate agents’ liability for injuries suffered by tenants. This particular judgment involved a dispute between Yeung, a landlord, and his real estate agent, Santosa Realty Co.

In this case, the tenant slipped on back stairs that were worn, slippery, unlit and without a handrail. Yeung and Santosa were jointly liable to pay damages totalling $433,899.80 as they had breached their duty of care to the tenant, similar to the earlier case of Lloyd v Thornbury in NSW. However, Yeung, the landlord, appealed to the Court of Appeal as he denied liability on the basis that he had employed Santosa as his agent.

What does it mean to be someone’s ‘agent’?

The ruling

The Victorian Court of Appeal confirmed authority that the duty of landlords to take reasonable care to avoid foreseeable risk of injury to tenants was a delegable duty, meaning landlords can engage contractors to ensure the safety of the property for occupants. In this case, Yeung had signed a management agreement with Santosa, who were required to conduct routine inspections and indicate what repairs were needed. The Court found that Santosa had not identified the risk of the back stairs and had they carried out their contractual obligations, the tenant would not have been injured. This meant that Santosa was held wholly liable to pay the damages pre-determined at trial.

Why are these cases important?

Both cases confirm that a landlord has a duty to take all reasonable steps to prevent injury to those using their premises, including tenants who are occupying the premises. The Court in Lloyd v Thornbury emphasised that this is especially likely to happen where the landlord arranges for work to be carried out on the rental property and is aware of a potential risk or danger by either being present or being told of it. On the other hand, the case of Yeung v Santosa demonstrated that this duty may be delegated to an apparently competent contractor, to act as the agent of the landlord in carrying out that duty.

How can we help?

If you are unsure of your rights and responsibilities as a landlord, or think you may be able to claim for an injury you have suffered, our Property and Personal Injury teams can assist you. Contact us 02 6285 8000 or by email.

You can read more about landlord obligations here.