Australia: Occupiers' liability: the landlord, the owners corporation, the criminal and the entrant

In brief - Nature and scope of duty owed by landlords and owners corporations

A number of High Court and NSW Court of Appeal cases illustrate the nature and scope of the duty owed by an absent landlord vis-a-vis a tenant occupier and an owners corporation in injury cases arising from accidents as well as criminal acts. Casualty claims handlers should be aware of these.

Landlord's duty of care dependent on amount of control over premises

Since Jones v Bartlett [2000] HCA 56; 205 CLR 166, there has been no doubt that a landlord owes a general duty to take care. What steps are required to discharge that duty depends on the amount of control the landlord has over the premises.

Liability split 50/50 between landlord and tenant

In Loose Fit Pty Limited V Marshbaum & Ors [2011] NSWCA 372, both the owner of commercial premises and the tenant occupier were found to owe a duty to take reasonable care to avoid a foreseeable risk of injury. In this case, the owner created the risk by renovating the premises and not installing a handrail in a staircase. Those renovations, which in the end did not comply with the applicable safety standards, later created the hazard which caused the plaintiff's injuries. The Court of Appeal considered that in the circumstances, a reasonable person in the position of the owner would have installed a handrail before entering into the 2006 lease with the occupier. By failing to do so, they had breached their duty of care to the plaintiff.

However, the occupier was not vindicated. The hazard in the Loose Fit v Marshbaum case was obvious and it was open to the landlord to take steps to avert the risk. The court went so far as to say that, even if the lease required the landlord to construct a handrail or to ensure that the premises complied with applicable safety standards, the occupier would not be relieved from taking reasonable precautions to ensure the safety of entrants.

Liability was apportioned 50/50 between the landlord and the occupying tenant.

Owners corporations not required to discover unknown and unsuspected defects

Pursuant to section 62 of the Strata Schemes Management Act 1996, the owners corporation is obliged to keep common property in a state of "good and serviceable repair."

In Ridis v Strata Plan 10308 [2005] NSWCA 246, the High Court found that to discharge its obligations under section 62, an owners corporation should have in place a system for monitoring the maintenance and state of repair of the common property. This does not extend to requiring the owners corporation to inspect premises for the purpose of discovering unknown and unsuspected defects. The owners corporation in the Ridis v Strata Plan case were found not liable for failing to identify a safety risk posed by ordinary glass installed circa 1939 despite the contemporary safety standards requiring the installation of safety glass in structures of that nature.

Is there a duty to guard against criminal acts?

In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, which involved an employee who was assaulted in the car park of a shopping centre where he worked, the High Court held that an owner/occupier of commercial premises owes a duty of care to tenants, their employees, customers and anyone lawfully in common areas. To discharge its duty, the owner/occupier must take reasonable steps to protect people against defects or danger in the property's condition.

In this case, the plaintiff was injured as a result of a criminal act and the High Court found the owner/occupier not liable and said that there would only be limited circumstances in which an owner/occupier could be held liable for injury suffered by an entrant as a result of the criminal acts of a third party.

Similarly, in Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 it was held that there was no special relationship between the strata plan proprietors and the plaintiff sufficient to trigger a duty of care that extended to safety measures to protect the latter from the risks of injury at the hand of outside assailants. Thus, the strata plan proprietors were not held liable for injuries caused to the plaintiff as the result of an assault that occurred in the common property of a secure block of units, despite the fact that access to the building was obtained because of the defective state of the entrance door lock. The court rejected that the harm was foreseeable and held that it was neither reasonable nor just to place such a duty of care on the strata plan proprietors.

Landlords and owners corporations should heed their duty of care

A landlord will not escape liability just because it is not in occupation of premises. The nature and scope of the duty owed will depend upon the role of the landlord in creating the risk or failing to remove or reduce it.

Similarly, an owners corporation owes a duty to occupiers and visitors on its common property. This can be discharged by implementing a reasonable system of inspection and does not require identifying hidden defects or dangers.

No obligation to guard against criminal acts

In contrast, the law remains that an owners corporation or an owner/occupier of commercial premises is not obliged to guard against the acts of criminals, even in circumstances where its failure to undertake repairs allowed the criminal access.

Gavin Creighton Rebecca Hosking
Insurance and reinsurance
CBP Lawyers

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.

Rebecca Hosking
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”

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.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


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.