Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aldred v Stelcad Pty Ltd [2015] NSWCA 201 Hearing dates: 14 April 2015 Date of orders: 16 July 2015 Decision date: 16 July 2015 Before: Macfarlan JA at [1]; Emmett JA at [2]; JC Campbell AJA at [61] Decision: Appeal dismissed with costs. Catchwords: TORT – negligence – occupiers' liability – scope of duty of care owed by the owner of commercial premises to an employee of the tenant of the premises – relevance of the existence of "dangerous defects" – whether any such duty was breached Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5G, 5H Workers Compensation Act 1987 (NSW), s 151Z Cases Cited: Jones v Bartlett [2000] HCA 56; 205 CLR 166 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lapcevic v Collier [2002] NSWCA 300 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Category: Principal judgment Parties: David Aldred (Appellant) Stelcad Pty Ltd (Respondent) Representation: Counsel: R Sheldon SC with M Daley (Appellant) N Polin SC (Respondent) Solicitors: Brydens Law Office (Appellant) Moray & Agnew Lawyers (Respondent) File Number(s): 2014/189370 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Citation: David Aldred v Stelcad Pty Ltd [2014] NSWDC 63 Date of Decision: 6 June 2014 Before: Mahony DCJ File Number(s): 2012/328270 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MACFARLAN JA: I agree with Emmett JA. 2. EMMETT JA: This appeal is concerned principally with the question of whether the owner of a factory should be held liable for damages suffered by a worker injured in the factory in the course of his employment by the tenant of the factory. The respondent, Stelcad Pty Ltd (Stelcad), owned premises situated at Ingleburn (the Premises). Amerind Pty Ltd (Amerind) was the tenant of the Premises under a lease granted to it by Stelcad on 7 August 2006 (the Lease). The appellant, Mr David Aldred, was injured in the Premises in the course of his employment by Amerind. 3. Mr Aldred sued Stelcad in the District Court of New South Wales, claiming damages on the basis that Stelcad owed him a duty of care, that Stelcad breached that duty and that, as a consequence, he suffered the injury in question. A judge of the District Court (the primary judge) entered a verdict for Stelcad and ordered Mr Aldred to pay Stelcad's costs of the proceedings. Mr Aldred has now appealed to this Court from the orders of the District Court. 4. As will appear below, the terms of the tenancy between Stelcad and Amerind may have some bearing on whether Stelcad owed a duty to Mr Aldred and the content of that duty. It is therefore desirable to say something about the terms of the Lease before examining the circumstances of Mr Aldred's injury. The Lease 1. By the Lease, Stelcad demised the Premises to Amerind for a term of five years commencing on 1 March 2006 and terminating on 28 February 2011. The Premises consisted of the whole of the land known as 5-9 Lancaster Street, Ingleburn, together with all improvements on that land, other than the part of the improvements known as the "Pool Shop". The Premises included all driveways, internal parking areas, paths and walkways and all of the grounds and gardens up to the boundaries of the land. The building that formed part of the improvements consisted of approximately 10,000 square metres of factory space. 2. The Lease contained a number of provisions that would be regarded as typical for a lease of commercial premises such as the Premises. In particular, it contained a covenant by Amerind to pay rent, with a provision for adjustment of the rent. Amerind was also obliged to pay outgoings in respect of the Premises. 3. Clause 6 of the Lease dealt with the use of the Premises by Amerind. By cl 6.1, Amerind was prohibited, relevantly, from using the Premises otherwise than for the purpose of manufacturing, office administration, sales support and warehousing. By cl 6.5(c), Amerind agreed not to do, or permit to be done, on the Premises anything that, in the reasonable opinion of Stelcad, may become a cause of damage to Stelcad. By cl 6.5(g), Amerind agreed not to do, or permit to be done, anything by which the Premises or any part of the Premises may be damaged or strained or its walls or floors may be caused to sag. 4. Clause 7 of the Lease dealt with maintenance repairs, alterations and additions. By cl 7.1, Amerind agreed to keep the Premises in good repair and, at the expiration or sooner determination of the term of the Lease, to yield up the Premises to Stelcad in good repair. However, under cl 7.2, the obligations of Amerind under cl 7.1 were not to include responsibility for "fair wear and tear". 5. Two paragraphs of cl 7.4 are relevant: 7.4 The Tenant must at the Tenant's expense: […] (b) immediately make good any damage to any part of the Premises or any part of the Premises caused by the Tenant or by persons under its control; […] (l) keep and maintain all driveways, internal parking areas, paths and walkways in good working condition and repair having regard to their condition at the Commencing Date and fair wear and tear for which the Tenant is not liable. Further, under cl 7.6: 7.6 The Tenant must immediately give notice to the Landlord of: (a) any damage to and of any accident or defects in the Premises or in any of the services or other facilities provided by the Landlord in the Premises; and (b) any circumstance likely to occasion any damage or injury occurring within the Premises. 1. Clause 17.2 provided that Stelcad was to have "the right (but not the obligation)" to enter upon the Premises with all necessary materials and equipment at all reasonable times. Clause 17.2 also provided that Stelcad was to have "the right (but not the obligation)", on reasonable notice, to enter and view the state of repair of the Premises, to carry out repairs or other works to the Premises and to execute any work required to remedy a defect that it was Amerind's duty to repair. Circumstances of Mr Aldred's Injury 1. On the Premises, Amerind carried on the business of selling timber veneer products. From August 2006, Amerind employed Mr Aldred as a forklift driver. His duties included preparing orders for delivery, delivering orders and then preparing other orders for delivery. 2. The flooring of the factory part of the Premises was concrete. Mr Aldred described it as "just normal concrete flooring" and said that it "had wear and tear in it". He said that, while he worked in the Premises in the period up to October 2009, he noticed that the floor was deteriorating. He said that holes started "popping up just through wear and tear" on the joins where the concrete slabs met together. He said that there were "quite a few" holes, about 10 or 15, and that they were located "all over the place". Mr Aldred could not say when he first saw the floor deteriorating or which area was the first to deteriorate. He said that he reported the deterioration in the floor to his superior at Amerind, but that nothing, to his knowledge, was done to fix the problem. 3. On 20 October 2009, Mr Aldred was at work in the Premises doing "day-to-day stuff", as he said. He was on a forklift and there was a piece of timber, known as a "glut", on top of a pack of board on the tines of the forklift. He stopped the forklift to remove the glut so that he could put the pack of board away properly. He stepped down from the forklift with his left foot, which went into a hole in the concrete flooring. He rolled his ankle and fell over onto his back. He suffered injury as a consequence. 4. Mr Aldred said that he took care when alighting from a forklift near an area that had deteriorated. However, he said, on the day in question, his view from the forklift was obstructed. Nonetheless, he agreed in cross-examination that the area where he rolled his ankle was precisely where he put his foot as he stepped off the forklift. He conceded that the hole in the concrete was not obstructed by the forklift, but he said that he was concentrating on putting the stock away. He agreed that he had parked the forklift immediately adjacent to an area that had deteriorated. The following exchange then occurred: Q. You then, it would appear, stepped off the forklift without looking down to where you're stepping – A. Yes. 1. Mr Aldred said that, at the time of his accident, he reported the incident to Mr Robert Belshaw, Amerind's production manager. Mr Belshaw said that Mr Aldred reported to him that he had twisted his ankle when "stepping off the forklift through a crack in the concrete". Mr Belshaw completed an incident report form recording that the incident occurred as follows: Stepped off forklift, foot went into crack in concrete, heard crack and fell over, did not see it. Mr Belshaw went and looked at the place where the accident occurred. He observed that a piece of concrete was missing and that a crack was evident next to the forklift off which Mr Aldred had stepped. 1. After the incident occurred, Amerind employed a company to fill up holes in the flooring with a product called MagnaPatch. Mr Belshaw said that Amerind employed the same company on other occasions to fill cracks in the concrete. He said that repairs were carried out to three sections of the flooring and that the repairs lasted for 8 to 12 months, but that the patches started to crack and they had to be fixed up again. He said that Stelcad had nothing to do with the repairs. Mr Belshaw agreed that there was a problem with holes continuing to appear in the concrete over the course of Amerind's occupation of the Premises and that, while things had been done to try to stop the problem, it kept on happening. However, no one to the knowledge of Mr Belshaw spoke to Stelcad about the problem. 2. Mr Neil Adams, an ergonomics and safety management consultant, prepared a report dated 31 May 2013, which was tendered on behalf of Mr Aldred. Mr Adams said that he examined the floor of the Premises in April 2013 and that the depression encountered by Mr Aldred was over 1,300 millimetres long, more than 150 millimetres wide and over 25 millimetres deep. Mr Adams said that there were reasonable means available to control, if not entirely eliminate, the risk of a trip and fall as a result of a worker encountering depressions in the floor of the Premises. He described the possible means as follows: * all substantial changes in the level of the concrete could have been repaired, either permanently by removing and reinstalling concrete slabs as appropriate, or temporarily by the use of suitable amounts of materials such as asphalt or concrete; * the depressions could have been filled and refilled as required with material that was suitably robust and appropriately flexible, such as asphalt; * sheets of steel (or similar material) of suitable thickness could have been screwed down over the depressions; and * appropriately contrasting highlighting paint could have been applied to the floor around each of the depressions to render the depressions more visually obvious and to serve as a constant reminder to workers of their presence and potentially hazardous nature. Mr Aldred's Claims 1. In his further amended statement of claim filed on 9 July 2013, Mr Aldred alleged that Stelcad was under a duty of care to him, was in breach of that duty, and was negligent. The allegations made in the statement of claim may be summarised as follows: * Stelcad is the owner of the Premises, which were leased by Amerind from Stelcad; * As at 20 October 2009, Mr Aldred was employed by Amerind to provide warehousing duties using a forklift in the Premises; * In the course of his employment, and working under the direction and control of Amerind, Mr Aldred utilised the equipment and system of work provided to him by Amerind; * On 20 October 2009, it was necessary for Mr Aldred to climb onto a forklift to move sheets of timber veneer; * When he stepped off the forklift onto his left foot, he stepped into a hole in the concrete floor of the Premises and his left ankle rolled; * Stelcad was negligent in the following respects: * failing to take any, or any adequate, precautions for his safety; * putting him in a position of peril; * failing to provide him with a proper and safe system of work; * failing to carry out any, or any adequate, risk assessment in respect of the task that he was required to undertake on the pitted concrete floor; * providing a warehouse floor that was unsafe; * failing to investigate and correct numerous depressions in the warehouse floor; * failing to repair substantial changes in the floor level, either permanently, by removing and reinstalling concrete slabs as appropriate, or temporarily, by the use of suitable amounts of material such as asphalt or concrete; * failing to fill and refill the depressions with appropriate flexible material such as asphalt; * failing to place over and screw down sheets of steel or similar material over each of the depressions; and * failing to highlight appropriately the depressions by painting around each of them to render them more visually obvious and to serve as a constant reminder to workers of their presence and potentially hazardous nature. 1. In its further amended defence to the further amended statement of claim, filed on 30 January 2014, Stelcad denied that it was negligent. Stelcad also made allegations that may be summarised as follows: * By reason of the provisions of s 5B and s 5C of the Civil Liability Act 2002 (NSW) (the Civil Liability Act), Stelcad was not negligent by or for failing to take precautions against the risk of harm to Mr Aldred; * The injury suffered by Mr Aldred was not causally connected to any act or omission of Stelcad within s 5D of the Civil Liability Act; * The risk in question was an obvious risk, of which, by the operation of s 5G of the Civil Liability Act, Mr Aldred is presumed to have been aware and Stelcad did not owe to Mr Aldred a duty to warn him of the risk of injury by reason of s 5H of the Civil Liability Act; * If Stelcad is liable to Mr Aldred as alleged, he materially contributed to his own injuries and disabilities by reason of his failure to keep a proper lookout. 1. Section 5B(1) of the Civil Liability Act relevantly provides 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, the risk was not insignificant and, in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against the risk of harm, the court must consider, amongst other things, the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking precautions to avoid the risk of harm. 2. Under s 5D of the Civil Liability Act, a determination that negligence caused particular harm comprises two elements. The first element is that the negligence was a necessary condition of the occurrence of the harm (factual causation). In determining, in an exceptional case, whether negligence that cannot be established is a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court must consider whether or not, and why, responsibility for the harm should be imposed on the negligent party. The second element is that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). For the purpose of determining the scope of liability, the court must consider whether or not, and why, responsibility of the harm should be imposed on the negligent party. 3. Section 5G of the Civil Liability Act relevantly provides that, in proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves, on the balance of probabilities, that he or she was not aware of the risk. Further, under s 5H, a person does not owe a duty of care to another person to warn of an obvious risk to that other person. Under s 5F, an obvious risk to a person who suffers harm is one that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Obvious risks include risks that are patent or a matter of common knowledge. 4. In addition, Stelcad relied in its defence on s 151Z(2) of the Workers Compensation Act 1987 (NSW) (the Compensation Act). Section 151Z(2) relevantly provides that, if in respect of an injury to a worker for which compensation is payable under the Compensation Act, the worker takes proceedings independently of the Compensation Act to recover damages from a person other than the worker's employer (the third party) and the worker is entitled to take proceedings independently of the Act to recover damages from that employer, then the damages that may be recovered from the third party are to be reduced by the amount by which the contribution which the third party would be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable. 5. Stelcad asserted that any damages awarded against it should be reduced by reason of the negligence and breach of duty of care on the part of Amerind in the following respects: * the particulars of negligence alleged by Mr Aldred against Stelcad; * its servants' or agents' negligently or carelessly operating forklifts in and around the Premises, thereby creating damage to the concrete floor, being cracking and damage to the joins between the concrete slabs; * failing to repair and maintain the areas of the concrete floor that had developed cracking in circumstances where Amerind knew or ought to have known of the existence of such cracking; * failing to devise, implement, maintain and enforce a safe place or safe system of work; * failing to highlight the depressions in the floor to render them visually obvious; * failing to implement appropriate and ongoing hazard identification and risk assessment processes; and * failing to repair or cover the areas of the concrete floor that had developed cracking. The Conclusions of the Primary Judge 1. The primary judge identified six questions concerning Stelcad's liability to Mr Aldred that required determination as follows: 1. whether Stelcad, as owner of the Premises, owed Mr Aldred a duty of care; 2. the scope of any such duty of care; 3. whether there was a breach of any relevant duty of care, having regard to the relevant provisions of the Civil Liability Act; 4. whether any such breach was causative of Mr Aldred's injury; 5. whether Mr Aldred contributed to his own injuries by his own negligence; and 6. whether any deduction was warranted by reason of s 151Z(2) of the Compensation Act in respect of any negligence on the part of Amerind. 1. The first two questions are closely related. Thus, it is necessary to determine not so much whether Stelcad, as the owner of the Premises, owed a duty of care to Mr Aldred, an employee of Amerind, the tenant of the Premises under the Lease, but what the scope of such a duty was. 2. The primary judge found (at [48]) that, when the Lease was granted, Stelcad did not know, nor should it have known, that the concrete flooring of the Premises would become damaged over time by reason of the use by Amerind of forklift trucks within the Premises. There was no challenge by Mr Aldred to those findings. 3. However, as the primary judge observed, the question was whether a duty of care arose because Stelcad subsequently became aware of a problem with the flooring. That depends upon the significance to be given to a handwritten document that was tendered on behalf of Mr Aldred without objection (the April Meeting Notes). The April Meeting Notes, which were produced by Stelcad in response to a subpoena served on behalf of Mr Aldred, appear to be notes made in respect of a meeting held on 27 April 2009. The meeting appears to have been attended by six people, who are identified in the April Meeting Notes as "David, Luke, Lee, John, Joe and GS". There was no evidence as to the identity of those individuals, although other documents in evidence, which were produced by Stelcad in response to the subpoena, suggest that "Luke" may have had a connection with Amerind. 4. The April Meeting Notes begin as follows: Factory, to [sic] big now – after smaller space Say 6,000m2? Stelcad's other properties (? 5 yrs to purchase? @ C'town) Lease 3 yrs + ? 1. They then appear to record the state of repair of the Premises. Thus, they say: Office w/c needs painting Office already painting by Amerind Signs ? OK, see council […] may need to pay fees A/C filters not cleaned […] Sarking – wind storm Factory WC – cistern "kicked in" – not cleaned There are then four items against which the notation "$AMER" appears, as follows: Damage to cladding increased – need armourguard or buffers – stop forklifts from hitting walls Floor – Forks breaking concrete edging (Luke can't stop – tried before) Bottom drive bitumen break up on sides (due to trucks cutting corners) Glass P/S just need […] Amerind to fix That suggests that the author of the April Meeting Notes was listing repairs for which Amerind would be required to bear the cost. There is then a further item as follows: Rear drive damage – Erosion? B/S Only on side of bitumen dr. – trucks turning on bitumen & not concrete causing problems At the end of the April Meeting Notes, the following appears: Get prices for Amerind road works walls painting floors *Look at rental situation That also suggests listing of repairs for which Amerind had the responsibility, although Stelcad was to obtain details of the cost of the repairs. 1. The primary judge found that the April Meeting Notes could not be relied on by Mr Aldred to impute relevant knowledge of a dangerous defect in the Premises to Stelcad. His Honour was not persuaded that, on the basis of the April Meeting Notes alone, Stelcad was aware, or ought to have been aware, of any defect in the flooring of the Premises that might give rise to a foreseeable risk of injury to employees of Amerind, as a tenant using the Premises in the course of their employment, let alone the particular defect giving rise to Mr Aldred's injury. His Honour found, having considered the terms of the Lease, that Stelcad was not under any relevant duty to take reasonable care to prevent a foreseeable risk of injury to Mr Aldred. His Honour considered that the case as pleaded against Stelcad by Mr Aldred reflected a duty of care owed by an employer/occupier, and not an owner, of the Premises. 2. The primary judge said that his finding that there was no relevant duty of care owed by Stelcad extended to a finding that the scope of any duty that may have been owed by Stelcad to Mr Aldred did not include taking reasonable care to avoid the relevant risk of harm, namely, foreseeable risk that Mr Aldred might injure himself when alighting from a forklift onto the flooring of the Premises, by placing his foot in the defect in the floor. His Honour said that he made that finding because the Premises were factory premises in which Mr Aldred worked on a daily basis. He and Amerind were aware of the irregularities in the flooring caused by the movement of the forklift trucks over sections of the flooring and the gradual deterioration of the concrete at the joins. His Honour found that it was not foreseeable by Stelcad, as owner of the Premises, that Mr Aldred would suffer injury in the way that he did. 3. Further, the primary judge concluded, the likelihood of harm to Mr Aldred was quite remote to Stelcad. His Honour considered that Mr Aldred had not established that the risk of harm was not insignificant. His Honour concluded that, in the circumstances, a reasonable person in Stelcad's position would not have taken any precautions against such a risk. Therefore, Stelcad could not have been negligent, having regard to the provisions of s 5B of the Civil Liability Act, and no issue of causation could arise to be determined pursuant to s 5D of the Civil Liability Act. 4. Nevertheless, the primary judge found that Mr Aldred did not contribute to his injuries by his own negligence. His Honour found that Mr Aldred's view of the irregularity in the flooring was obstructed by the load being carried by the forklift and that, when he stepped off the forklift, he was unaware of the defect into which his foot was to be placed. In those circumstances, his Honour would not have made a finding of contributory negligence. There is no challenge to that conclusion by Stelcad. 5. Finally, in relation to liability, the primary judge concluded that, if Mr Aldred had been entitled to succeed against Stelcad in a cause of action in negligence, Stelcad would have been entitled to a complete indemnity from Amerind under s 151Z(2) of the Compensation Act. His Honour considered that Amerind owed Mr Aldred a non-delegable duty of care, which was co-existent with any duty said to be owed to him by Stelcad, as owner of the Premises. His Honour considered that Amerind was clearly negligent in failing to provide a safe system of work for Mr Aldred, in circumstances where the defects had appeared over a period of time prior to his injury and Amerind was clearly aware of the defects. His Honour noted that it was Amerind's contractual obligation to repair the defects, and that it did so following Mr Aldred's injury. His Honour held that the terms of the Lease created no contractual obligation on Stelcad to repair the flooring and, therefore, it would have been entitled to a total indemnity from Amerind. The Appeal 1. By his notice of appeal filed on 29 August 2014, Mr Aldred makes complaint in relation to three areas: 1. the primary judge erred in failing to find that Stelcad owed him a duty of care, in failing to find that Stelcad had notice of the condition of the Premises that caused him harm and in failing to find that Stelcad was in breach of its duty of care; 2. the primary judge erred in finding that Amerind would have been obliged, under s 151Z(2) of the Compensation Act, to indemnify Stelcad if Mr Aldred succeeded against it, and in treating the contractual relationship between Stelcad and Amerind as determinative of the issue of breach as between Mr Aldred and Stelcad; and 3. the primary judge erred in the assessment of damages in that the award for non-economic loss was manifestly inadequate, the allowance for future economic loss did not reflect the likely impact on Mr Aldred of the economic incapacity from which he suffers and his Honour estimated Mr Aldred's need for domestic assistance and failed to give adequate reasons for the award that he made in that respect. 1. In relation to the first complaint, there was generally no dispute between the parties as to the relevant principles. Rather, the disputation was as to the application of those principles to the facts of the present case. One particular area of dispute was the correctness or otherwise of the primary judge's reliance on the existence of "dangerous defects" as being essential to a finding of a duty of care of a landlord to a third party (such as Mr Aldred). It is therefore desirable to state some general principles as to the liability of a landlord to entrants on demised premises. Relevant Legal Principles 1. The duty of care of a landlord is that which arises under the ordinary principles of the law of negligence. That is to say, the duty of a landlord is to take reasonable care to avoid foreseeable risk of injury to a person who enters onto the demised premises. The nature and extent of the duty and its practical content in a particular case is governed by the circumstances of the case. [1] In the absence of a contract supporting a higher duty, the duty of a landlord in relation to the safety of premises does not in general require the landlord to commission experts to inspect premises to look for latent defects. Nor does a landlord have a duty to make premises as safe as reasonable care can make them. In general terms, the duty of a landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. [2] 2. The nature and scope of the duty that is owed may differ as between landlord and tenant, on the one hand, and landlord and other persons, on the other. The latter is likely to be less stringent than the former. Further, the reasonableness of steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched, the obligations of the parties allocated inter se and any specification of limited purposes to which the premises may be put. [3] 3. The primary judge relied on Lapcevic v Collier [2002] NSWCA 300, which applied Jones v Bartlett, for the proposition that: [t]he duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for the purpose for which they are not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known. [4] [emphasis added] Earlier in Jones v Bartlett, the term "dangerous defect" had been described as follows: […] a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries. However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used. [5] 1. However, in Loose Fit v Marshbaum, this Court stated that: Jones v Bartlett does not stand for the proposition that a landlord of commercial premises breaches the duty of care owed to an entrant onto the premises only if the entrant is injured by a "dangerous defect". […] The questions that have to be addressed are whether there was a foreseeable risk of harm to the entrant and, if so, what (if anything) a reasonable person in the landlord's position would have done in response to that risk. The existence of a "dangerous defect" might be an important consideration in answering those questions, but it is not necessarily the only decision. In New South Wales it is necessary also to take account of s 5B of the [Civil Liability Act]. [6] [emphasis added] 1. Counsel for the respondent sought to contradict the first sentence just quoted on the basis that it was inconsistent with Lapcevic v Collier's application of Jones v Bartlett. However, Jones v Bartlett did not concern commercial premises. In that case, before the two passages quoted above, was the following comment: This case, like [Northern Sandblasting v Harris], is concerned with a letting for residential purposes. What follows is to be understood with that in mind. That which is required in respect of premises let for commercial or educational or other purposes may well differ, but that is not for decision in this case. [7] 1. One difference between residential and commercial premises is that a lessee of the former may have a comparatively limited capacity to rectify defects in the premises. Moreover, because leases of commercial premises encompass a very wide range of situations, from small retail leases to large trading operations, it can be particularly difficult to articulate generalisations about such premises without considering the circumstances of the individual case. 2. The relevant duty is owed not only to tenants but to other entrants on the demised premises. Nevertheless, the duty of the landlord to such other entrants will in many cases be narrower than that owed to them by an occupier of the premises, such as a tenant. 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 demised premises will primarily rest with the occupier-tenant, because the tenant is generally in possession and has control of the demised premises and can determine who enters and under what conditions. However, everything must depend on the particular circumstances of each case. [8] 3. During the course of argument, counsel for Stelcad agreed that the term "dangerous defects" could be understood as meaning no more than some defect that involves some risk of injury, and therefore can be understood consistently with the reference to "risk" in the Civil Liability Act. Notwithstanding the primary judge's use of the language of "dangerous defect", for the reasons that follow, his Honour did not err in concluding that Stelcad did not owe a duty of care to Mr Aldred, and in any event did not err in concluding that any such duty was not breached. Duty of Care and Breach of Duty 1. Any duty that Stelcad owed to entrants onto the Premises, such as Mr Aldred as an employee of its tenant, Amerind, is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. In the circumstances of the present case, the question is whether there was a basis for concluding that Stelcad was aware, or ought to have been aware, of the deterioration in the concrete flooring of the Premises and any attendant foreseeable risk of harm. 2. Mr Aldred contends that an inference should be drawn from the April Meeting Notes that, by 27 April 2009, Stelcad knew that damage was being done to the flooring of the Premises by forklifts running over it and that the damage was giving rise to a risk of injury to entrants into the Premises. He contends that, in circumstances where Stelcad called no witness to explain the circumstances in which the April Meeting Notes were brought into existence, or to explain the discussions that were recorded in them, such an inference could more readily be drawn. [9] That inference is based principally on a part of the April Meeting Notes that says: Floor – Forks breaking concrete edging (Luke can't stop – tried before) 1. There are, in effect, two inferences that Mr Aldred seeks to have drawn. The first is that the contents of the April Meeting Notes came to the attention of a relevant employee or officer of Stelcad. That might be shown by demonstrating that one of the persons present at the meeting was the relevant officer or employee of Stelcad. Alternatively, it might be shown that one or other of the persons who attended the meeting had a duty to communicate the information imparted at the meeting to the relevant officer or employee of Stelcad and that there was no reason why that person would not have discharged that duty. The second inference is that the information that was imparted at the meeting recorded in the April Meeting Notes was to the effect that the damage to the flooring that was being caused by forklifts was such as to create a foreseeable risk of injury to persons in the Premises. Mr Aldred says that, if that inference can be drawn, then a duty arose on the part of Stelcad to take steps to obviate the risk. 2. As I have indicated, the primary judge found that there was no defect at the time when the Lease was granted and there was no basis for concluding that Stelcad ought to have been aware of the possibility of deterioration in the flooring by reason of the use of forklifts. The case has been put solely on the basis that the defect developed during the term of the Lease and that Stelcad was aware of the defect, or ought to have been aware of the defect, by reason of the information imparted in the course of the meeting recorded in the April Meeting Notes. That requires a consideration of the terms of the April Meeting Notes, as well as the relationship between Amerind and Stelcad in relation to the Premises, as governed by the terms of the Lease. 3. The provisions of the Lease have some bearing on the issues, in that Mr Aldred relies on the power conferred by cl 17.2 on Stelcad to enter the Premises and carry out repairs for which Amerind was responsible. As indicated above, the extent to which a duty is imposed upon a landlord, and the content of that duty, will be influenced by the terms of the tenancy. Mr Aldred contends that, because Stelcad had the power to enter the Premises and carry out repairs, it was under a duty to him, as an entrant on the Premises, to exercise that power, notwithstanding any breach by Amerind as tenant. 4. The provisions of the Lease to which reference is made above clearly demonstrate that Amerind had a contractual obligation to inform Stelcad of any damage to or defects in the Premises and any circumstances likely to occasion any damage or injury occurring within the Premises (cl 7.6). It is also clear that the alleged defect, consisting of the breaking up of the edges of concrete slabs, was occasioned by the activities of Amerind in driving forklifts on the floor. That gave rise to an obligation on Amerind to repair the damage occasioned by its conduct (cl 7.4). 5. By April 2009, more than three years of the term of the Lease had passed. The commencement of the April Meeting Notes indicates that the likely purpose of the meeting was to investigate the possibility of early termination of the Lease. Thus, they record that Amerind no longer required a space as large as that afforded by the Premises. It appears that there was discussion about the possibility of Amerind's either buying or acquiring a tenancy of other properties owned by Stelcad. It is in that context that they apparently record work that would be required to reinstate the Premises to their condition at the time of the commencement of the Lease. 6. While the purpose of the meeting in the first place would not be decisive as to whether or not information was conveyed to Stelcad, as landlord, concerning a possible reasonably foreseeable risk of injury, it is relevant to the construction of the document itself. Thus, it is not possible to construe the April Meeting Notes as recording the conveying by Amerind, as tenant, of information about the state and condition of the Premises so as to inform Stelcad of the existence of a possible risk of injury. 7. Clause 7.6 is significant in relation to the April Meeting Notes. Under cl 7.6, as I have said, Amerind was required to give notice to Stelcad of any damage to and of any accident or defects in the Premises and, any circumstances likely to occasion any damage or injury occurring within the Premises. There is no suggestion in the April Meeting Notes that the reference to the breaking of concrete edging was in some way raised in the context of the obligation imposed on Amerind under cl 7.6. 8. The overall thrust of the April Meeting Notes was to record defects for which Amerind bore responsibility under the Lease. Thus, in the light of the provisions summarised above, Amerind was required to keep the Premises in good repair, save for responsibility for "fair wear and tear" (cl 7.2). Further, Amerind had an obligation at its own expense to make good any damage to any part of the Premises caused by it or by persons under its control (cl 7.4). Clearly enough, as I have said, the damage to the flooring was caused by the operation of forklifts by Amerind and its employees. 9. In the hearing of the appeal, Mr Aldred sought to advance a contention that the deterioration in the concrete flooring was "fair wear and tear" within the meaning of cl 7.2. That contention was not advanced before the primary judge. Indeed, counsel for Mr Aldred contended precisely to the contrary. Before the primary judge, Mr Aldred expressly contended that the damage to the flooring of the Premises was not "fair wear and tear". Rather, he contended that it was in some way a structural defect, such that any obligation to repair it lay with Stelcad. Significantly, there was no suggestion that the damage to the concrete flooring was "fair wear and tear". A contention was advanced that the primary judge made a finding to that effect. However, his Honour made no such finding. His Honour did no more (at [12]) than refer to the language used by Mr Aldred in evidence that the damage to the concrete resulted from "wear and tear". 10. There was never an enquiry as to whether or not the damage to the concrete flooring was "fair wear and tear" within the meaning of the Lease. There was certainly no finding by the primary judge that the damage constituted "fair wear and tear" within the meaning of the Lease. It is not now open to Mr Aldred, as he sought to do, to contend that the damage to the concrete edges by reason of the use of forklifts by Amerind was damage for which Stelcad had any responsibility under the Lease. 11. In the circumstances, I do not consider that the April Meeting Notes, even assuming that they came to the attention of the relevant officer or employee of Stelcad, are capable of conveying to that officer or employee information to the effect that there was a foreseeable risk of injury in the Premises, arising from the state and condition of the concrete flooring, such as to attract a duty on the part of Stelcad, as owner and landlord, to take steps to obviate that risk of injury. There is no basis for construing the April Meeting Notes as putting the recipient on notice of enquiry as to whether or not the broken concrete edging might give rise to a foreseeable risk of injury. It is impossible to draw any inference from the evidence as to when the hole in question first appeared. Some six months had elapsed since the time of the meeting in April when Mr Aldred suffered his injury. There is no basis for concluding that Stelcad ought to have been aware of the deterioration in the concrete flooring of the Premises and any attendant foreseeable risk of harm. 12. There was no breach by Stelcad of any duty of care that it owed to Mr Aldred as an entrant on the Premises (even if such a duty was owed). It follows that there was no error on the part of the primary judge in reaching that conclusion. That is sufficient to dispose of the appeal. Other Complaints 1. Having concluded that the first of the three matters of complaint cannot succeed, it is unnecessary to deal with Mr Aldred's complaints concerning s 151Z of the Compensation Act and the assessment of damages. Conclusion 1. The appeal must be dismissed with costs. 2. JC CAMPBELL AJA: I agree with Emmett JA. ********** Endnotes 1. Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 at 343. 2. Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 at [84], [86] and [87]. 3. Ibid at [89], citing Jones v Bartlett [2000] HCA 56; 205 CLR 166 at [169] and [174]. 4. Jones v Bartlett at [197], cited in Lapcevic v Collier at [34]. 5. Jones v Bartlett at [178]. 6. Loose Fit v Marshbaum at [90]. 7. Jones v Bartlett at [169]. 8. Loose Fit v Marshbaum at [91]. 9. See Jones v Dunkel [1959] HCA 8; 101 CLR 298. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2015