Australia: Should the owner of a commercial property and the tenantoccupier be jointly responsible for an injury occurring on the premises?

Curwoods Case Note
Last Updated: 6 December 2011
Article by Samantha Thorndike

Judgment date: 30 November 2011

Loose Fit Pty Limited v Marshbaum and Ors [2011] NSWCA 372

New South Wales Court of Appeal1

In Brief

  • An occupier of premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to an entrant who uses reasonable care for his or her own safety.
  • What constitutes the exercise of reasonable care depends on the circumstances of the particular case and always with reference to the pre-conditions of breach of duty of care set out in s 5B of the Civil Liability Act 2002 (NSW) (CLA).
  • In determining whether a landlord is in breach of the duty of care owed to an entrant, the questions that have to be addressed are whether there was a foreseeable risk of harm and, if so, what a reasonable person in the landlord's position would have done in response to that risk.
  • As a general proposition, liability for injuries sustained by an entrant on commercial premises will primarily rest on a tenant-occupier, rather than the landlord. However, each case will be determined on its facts.


On 10 November 2006, Mrs Marshbaum (plaintiff) attended a gymnasium in Mosman operated by Loose Fit Pty Limited (Loose Fit). The gymnasium was located on the first floor of a small shopping centre owned by Mr Kocx and Ms Hickie (Owners). After the plaintiff finished her training session at about 11 am, she descended the upper flight of stairs and lost her footing on the third step. The plaintiff tumbled down the stairs sustaining multiple impacts causing injury. The plaintiff was said to be of short stature and solid build.

The relevant stairs were polished timber with differing riser heights and varying tread depths. The upper flight of stairs had not been fitted with a handrail. The original concrete stairs had been installed in 1977. The original plans approved by Mosman Council required handrails to be installed but the handrails were not in place when the Owners purchased the premises in 2003. In 2003, shortly after acquiring the premises, the Owners arranged for a builder to carry out substantial renovations, costing approximately $200,000. The builder was not licensed and approval for the building work was neither sought nor obtained from Mosman Council. The renovations did not include the installation of handrails on either the upper or lower flight of stairs, in breach of the Building Code of Australia (BCA).

In June 2005, Loose Fit obtained a lease from the Owners for part of the premises. At this time, the leased property did not include the relevant staircase. During the negotiation of the 2005 lease, Loose Fit requested that a handrail be installed on the lower flight of stairs. The principal of Loose Fit gave evidence at trial that he did not consider a handrail was required for the upper flight of stairs as there was a stud wall along one side of the stairs which he had used as support. The principal was noted to be very fit, 180 centimetres in height and had large hands.

In September 2006, approximately 6 weeks before the Plaintiff's injury, Loose Fit entered into a fresh lease with the Owners. This new lease extended the leased property to include the whole first floor and the staircase. Shortly after the accident, Loose Fit contacted a building contractor to assess the stairs and install a handrail for the upper flight of stairs.

Supreme Court

The plaintiff brought proceedings in the Supreme Court of New South Wales against Loose Fit in both tort and contract. She alleged Loose Fit had breached its duty of care by failing to install a handrail on the upper flight of stairs and for breaching an implied term of the fitness contract to make the premises as safe for use as reasonable care and skill on the part of Loose Fit could make them.

Both Mr Cowling, engineer called on behalf of the plaintiff, and Dr Cooke, architect called on behalf of Loose Fit, were in complete agreement as to the dimensions of the staircase and its deficiencies. In particular, they agreed that the failure to install a handrail on the upper flight of stairs breached the relevant building standards at the time the stairs were built and also when the renovations were carried out in 2003.

Although Hoeben J did not accept that Loose Fit had any actual knowledge of the problems with the upper flight of stairs, he found Loose Fit should have made relevant enquiries which would have revealed a handrail was required by the BCA. Hoeben J also found that it was obvious that a person of small stature, such as the plaintiff, would not be able to grip the top of the stud wall as a means of support.

It was therefore found applying ss 5B and 5C of the CLA that a reasonable person in the position of Loose Fit would have concluded there was a foreseeable risk of injury to females of short stature, that the risk of a fall was not insignificant in that there was a real likelihood of it occurring, that the consequences were likely to be serious and that the burden of taking precautions to avoid the risk was small both by way of inconvenience and expense. Hoeben J found that Loose Fit had breached its duty of care to the plaintiff and an implied contractual warranty by failing to install a handrail as a precaution against the risk of a person of small stature falling.

Although the plaintiff did not sue the Owners, Loose Fit issued a cross-claim against the Owners alleging they knew or ought to have known about the imperfections of the staircase. In determining the cross-claim, Hoeben J relied on the decision of Jones v Bartlett2 in deciding that the Owners' duty was to take reasonable care to ensure that the premises leased to Loose Fit contained no "dangerous defects".

Hoeben J dismissed the cross-claim as he did not consider the absence of a handrail to be a "dangerous defect" and did not consider that a reasonable landlord would have installed the handrail. Judgment was entered in favour of the Plaintiff against Loose Fit in the sum of $433,441.57.

Court of Appeal

Loose Fit appealed the decision of Hoeben J with regard to liability only but did not challenge any of the findings of primary fact. Sackville AJA delivered the unanimous judgment of the Court of Appeal.

In the Court of Appeal, Loose Fit submitted that it was the occupier of the staircase at the time of the fall, that authorities had established that no stairs could ever be perfectly safe and that the risk of slipping or falling is an everyday risk against which members of the public can guard by taking care for their own safety. It was submitted that Loose Fit had only been the occupier for 2 months prior to the fall, that the staircase had been renovated by the Owners, that there were no previous complaints or accidents and that the principal of Loose Fit was inexperienced in the conduct of business and had no knowledge a handrail was required.

The Court of Appeal reaffirmed that Loose Fit, as occupier of the premises, owed a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Limited v Zaluzna3. The obligation is to exercise reasonable care to prevent injury to an entrant who uses reasonable care for his or her own safety: Roads and Traffic Authority of New South Wales v Dederer4. However, what constitutes the exercise of reasonable care will depend on the circumstances of the particular case: Wilkinson v Law Courts Limited5. In order to establish breach of duty of care, it is also necessary for the entrant to satisfy the 3 preconditions set out in s 5B of the CLA: Laresu Pty Limited v Clark6. Thus the entrant must show in relation to an occupier's failure to take precautions against a risk of harm that: the risk was foreseeable; the risk was not insignificant; and in the circumstances, a reasonable person in the occupier's position would have taken those precautions.

The Court of Appeal agreed with the findings of the primary judge that Loose Fit had breached its duty of care to the plaintiff. As the effect of s 5A(1) of the CLA applies the same standard of care whether a claim is brought in tort or contract, the Court of Appeal also agreed with Hoeben J's decision to uphold the plaintiff's contractual claim. In particular, they noted the expert evidence that there was a real likelihood of harm befalling a user of the staircase in the absence of a handrail. The risk of harm was not insignificant. They agreed it would have been obvious that a short person would not have been able to grip the stud wall of the upper flight of stairs as a means of support and that the installation of a handrail was a simple and inexpensive measure in response to the risk of injury. This was especially so considering Loose Fit had requested the installation of a handrail on the lower level of stairs.

The lease did not require the owners to construct a handrail on the staircase nor did it make the owners responsible for ensuring that the premises complied with applicable safety standards. Nevertheless the Court of Appeal found even if the lease contained such provisions, Loose Fit as the occupier, would not be relieved from taking reasonable precautions to ensure the safety of entrants.

The Court of Appeal found the absence of previous falls was not decisive, particularly as the configuration of the staircase had been in place for only a relatively short period.

The Court of Appeal thought it was of little relevance that Loose Fit had only occupied the stairs for a short period between the commencement of the 2006 lease and the plaintiff's fall. Even though the staircase had been fitted out by the Owners, it did not detract from Loose Fit's duty to take reasonable precautions to prevent injury to entrants. Although the principal of Loose Fit was inexperienced, the critical question was whether a reasonable person in Loose Fit's position would have installed a handrail on the upper level. The Court of Appeal therefore upheld the decision of the primary judge.

In determining whether the primary judge had been incorrect to conclude that the Owners, if sued by the plaintiff, would not have been liable, the Court of Appeal reviewed the primary judge's reliance on the decision of Jones v Bartlett. They noted that Jones v Bartlett involved a landlord's liability to a family member of a residential tenant. In that case, it was held that the duty of a landlord in relation to the safety of premises does not require the landlord to commission experts to inspect premises to look for latent defects or to make them as safe as reasonable care could make them. Rather, the duty of a landlord was to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk.

Although one of the judges in Jones v Bartlett referred to the concept of a "dangerous defect", the Court of Appeal considered the primary judge's reliance on the question of whether the absence of a handrail could be characterised as a "dangerous defect" was flawed. Rather, the Court of Appeal said the key question was whether there was a foreseeable risk of harm and what, if anything, a reasonable person in the landlord's position would have done in response to that risk, in accordance with s 5B of the CLA.

Although the Court of Appeal agreed that, as a general proposition as between a tenant-occupier and the landlord of commercial premises liability for injuries sustained by an entrant on the premises will primarily rest with the tenant-occupier, the Court reiterated that everything must depend on the particular circumstances of each case. In this case, the circumstances were unusual. In particular, the Owners created the risk by renovating the premises using an unlicensed builder and neither seeking nor obtaining Council approval for the renovations. The renovations undertaken did not comply with the applicable safety standards which created the very hazard which later resulted in the plaintiff's injuries.

The Court of Appeal considered the Owners were in at least as good a position as Loose Fit to appreciate that the absence of a handrail on the upper level created a risk to the safety of entrants and that the risk was simple and inexpensive to eliminate. This particular case therefore could be distinguished from cases where the risk to safety was only ascertainable by a landlord from careful inspection of the premises prior to the lease being entered into.

The Court of Appeal considered in the circumstances, a reasonable person in the position of the Owners would have installed a handrail before entering into the 2006 lease. By failing to do so, they had breached their duty of care to the plaintiff. The Court of Appeal found it was just and equitable that Loose Fit recover from the Owners, a contribution of 50% of the damages payable to the plaintiff.

The Court of Appeal unanimously ordered that Loose Fit's appeal against the plaintiff be dismissed but that Loose Fit's appeal against the Owners be allowed with judgment entered against the Owners for 50% of the judgment sum, being $221,720.78.


This judgment is a timely reminder that decisions of a landlord and tenant-occupier's liability will be determined with reference to the specific circumstances of the case. What constitutes the taking of reasonable steps by the landlord is likely to be more demanding in respect of commercial premises than residential premises.

Both the owner of commercial premises and the tenant -occupier owe a duty of care to entrants to avoid a foreseeable risk of harm. Generally, liability for injuries sustained by an entrant on the premises will rest primarily with the tenant -occupier. However, this decision demonstrates that the courts will depart from general propositions of law if the facts of a particular case justify a higher contribution from the owner.

If owners of commercial premises have undertaken renovations, they must ensure they use appropriately qualified tradesmen and make relevant enquiries to ensure there are no breaches of relevant building standards. Otherwise, they are at risk of contributing substantially to a claim by an injured entrant, even if the premises have been leased to someone else.

The terms of the lease must always be considered in determining the liability between a tenant and landlord which may well affect the reasonableness of steps to be taken by the landlord.

As always, each case is to be determined on its relevant facts and with reference to the general principles set out in s 5B of the CLA.


1 Campbell JA, Handley AJA and Sackville AJA

2 [2000] HCA 56

3 [1987] HCA

4 [2007] HCA

5 [2011] NSWCA 196

6 [2010] NSWCA 180

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.