Who is liable if you are injured on or in your rented premises? In this article Richard Faulks talks about circumstances in which the landlord may be held liable.

Who is liable?

There are many circumstances where a tenant is occupying premises owned by a landlord and suffers an injury while using those premises or taking part in activities on the premises. Even though the tenant is the occupier of the premises, there may be circumstances where a landlord is liable for any injury that the tenant suffers. That can be the case, even if a 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, suffered an injury when he fell into a hole in the backyard of the residential premises on the NSW north coast, which he was renting from Gerard Lloyd.

The injury

The injury occurred when Mr Thornbury rushed across the yard to break up a fight between his dogs and a third dog that had entered the premises. In doing so, he fell into a hole. The hole was one of four holes that had been dug by a plumber in the previous week to try and resolve a drainage problem. Both the landlord, Mr Lloyd, and the injured tenant, Mr Thornbury, were aware of the activity and the holes. In fact, the 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 was aware of the potential danger and had sought to erect barriers around the holes, using poles and safety barrier mesh, but had run out of material.

The ruling

The District Court had found that the plaintiff 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 prior to 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, the 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.

Why is this case important?

This case confirms that a landlord must take all reasonable steps to prevent injury to those using their premises, including tenants who are occupying the premises. That duty will arise particularly in circumstances where the landlord arranges for some work to be carried out on the premises and is aware of a potential risk or danger by either being present or being told of it.

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.