Allegations of negligence against real estate agent

McKenzie vs Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management) [2024] VCC 429

HBA acted for the insurer of a real estate managing agent. We succeeded before her Honour Judge Myers in the County Court of Victoria.

The plaintiff, Alan McKenzie, was the tenant of a property in Colac, Victoria. He alleged that when entering the rear of the property, he tripped and fell on a step which has a raised lip, resulting in injury. He alleged that he had previously reported the state of the back step to the managing agents.

The law is clear in that the defendant owed the plaintiff a duty to take such care as was reasonable in all the circumstances to ensure the plaintiff was not injured by reason of the state of the premises, or of things done or omitted to be done. That is, that an occupier is required to take reasonable care to avoid foreseeable risk of injury.

The features of the stairs were found to present a risk of harm, which was not insignificant. The absence of a handrail added to the foreseeable risk of harm, in that there was no handrail to grab in the event of mishap. 

The plaintiff submitted that the defendant had been negligent in not ensuring its staff had the appropriate training to identify or detect abnormalities in the steps. Further, that its assessment of the steps was inadequate because the state of repair had gone unnoticed. Consequently, if the defendant had not breached their duty, those factors would have been addressed.

Her Honour found that ‘reasonable care’ required the defendant to regularly inspect the house, respond reasonably to defects drawn to their attention, and ensure repairs were made which such inspections or notice disclosed to be reasonably necessary. The nature and extent of the duty did not require the defendant to train their staff in relation to assessment of the concrete steps and of the requirement of handrails. The duty owed is not one of strict liability. It is not a duty to ensure that premises are as safe as they can reasonably be made to be.

Her Honour said [at 301]:

“…Mr McKenzie has established no more than that the steps could have been made safer; that is different from establishing an unreasonable want of care.”

The plaintiff failed to establish that the defendant had breached their duty of care. Turning to causation, Her Honour was not persuaded the incident occurred in the manner alleged by the plaintiff in his oral evidence and was not satisfied that any defect in the steps was a cause of the incident.

We can therefore conclude that a managing agent owes a duty of care to tenants to take reasonable care in inspecting, maintaining, and reporting-on required repairs for any premises under their management. The duty to inspect and keep a premise safe for tenants does not extend to detecting structural issues.

A good and proper system of record-keeping, written policies for conducting inspections and handling tenant complaints regarding repairs can assist in defending claims such as these. This case highlights the scope and limitations of a reasonable duty of care.