In property, strata, and public liability law across Australia, “failure to maintain” generally refers to a breach of duty to keep property in a reasonably safe condition. This legal standard applies to property owners, strata schemes, councils, and other occupiers. Whether liability arises depends on the foreseeability of risk, what steps were taken to prevent harm, and whether the standard of care was met.
This article breaks down what “failure to maintain” means in practice and how courts determine liability when accidents, injuries, or losses occur.
What Is a Duty to Maintain?
Under Australian common law and the Civil Liability Act 2002 (NSW), all property owners and occupiers owe a duty of care to those who enter or use their premises. This includes a duty to:
- Maintain surfaces and structures in safe condition.
- Conduct regular inspections.
- Respond to hazards within a reasonable timeframe.
This duty is not absolute, it is based on reasonableness, not perfection.
The “Non-Delegable Duty” Trap
A sometimes overlooked issue in “failure to maintain” disputes is that, in limited categories of relationship, the law may impose a non‑delegable duty of care, a duty not merely to take reasonable care, but to ensure that reasonable care is taken by those to whom performance is entrusted.
The High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland‑Newcastle [2026] HCA 2 is a recent example of the doctrine being applied in an institutional care/supervision context, where the duty-holder had assumed responsibility for a child’s safety. However, the existence of a non‑delegable duty is fact‑specific and does not automatically arise merely because a property owner or occupier engages an external contractor to perform maintenance or repairs.
Where a non‑delegable duty does apply, the duty-holder cannot avoid liability simply by outsourcing the work: if the delegate fails to take reasonable care, the duty-holder may remain liable for that failure.
Takeaways: The High Court’s decision supports the general definition of non‑delegable duty and its application in a special “care/supervision/control” relationship, but it does not justify a broad claim that property owners/occupiers are “wholly liable” for contractors’ maintenance failures as a general rule.
What Is Considered a Failure to Maintain?
A failure to maintain arises when a party does not take reasonable steps to address a foreseeable risk. Examples may include:
- Ignoring complaints about leaking pipes or damaged stairs.
- Failing to repair broken lighting in common areas.
- Allowing vegetation, debris, or surface defects to create trip hazards.
Courts will assess whether the hazard was reasonably foreseeable, taking into account the following factors:
- Prior complaints or reports.
- The obviousness of the risk.
- Frequency of public use or exposure.
How Is Liability Determined?
1. Causation
The injured party must prove that the failure to maintain caused or materially contributed to the injury or loss. There must be a direct link between the maintenance failure and the harm suffered.
- Standard of Care
The court applies an objective test: what would a reasonable person in the same position have done? Relevant factors include:
- Cost and practicality of addressing the risk.
- Industry or regulatory standards.
- Maintenance schedules and resources.
3. Evidence
Successful claims often rely on:
- Maintenance logs and inspection records.
- Incident reports.
- Witness testimony.
- Expert opinions on industry standards.
Lack of documentation may weigh against the defendant and suggest systemic neglect.
Limitations and Practical Realities
The law does not expect every hazard to be eliminated. It requires reasonable precautions, not perfection. Courts often recognise that:
- Budgets may constrain immediate action.
- Some risks are minor and acceptable.
- Response times should be proportionate to the level of risk.
However, if an issue has been raised and ignored, especially one affecting health or safety, the owners or occupiers may be found liable.
Conclusion
“Failure to maintain” is not defined by isolated defects but by whether a party failed to take reasonable action to prevent foreseeable harm. Liability is determined by considering causation, foreseeability, the standard of care, and the availability of evidence. The burden is on property managers and owners to show they took adequate steps to inspect, maintain, and repair.
If you’re facing a claim related to property maintenance or need legal advice on your duty of care, feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our newsletter via our Website, and subscribe to our YouTube , LinkedIn, Facebook and Instagram. If you liked this article or video, please also give us a favourable Google Review.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) has over 17 years of experience as a commercial lawyer. He helps businesses navigate construction and technology law. Damin has held several big leadership roles, including serving as a director of a national law firm and the Chief Legal Officer for Lawpath.
He has personally helped more than 2,000 startups and small businesses. With over 300 five-star reviews, his clients clearly value his practical advice and simple way of explaining things. Damin has also hosted over 100 webinars that thousands of people have watched to get reliable legal help.
