In a recent case heard in the NSW District Court, the spotlight was firmly on a situation that went terribly wrong, underlining the perils of when a strata scheme fails in their duty of care. In this case, the lines of responsibility blurred as the Owners Corporation (called a Body Corporate here in QLD), and the Employer all came under scrutiny. The case serves as a poignant reminder of the intricacies involved in strata and the importance of identifying who bears ultimate responsibility when things go away.

The Case in Question

SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274.

On 12 June 2020, a 64-year-old man was fatally injured at his place of work, Maluko Pty Ltd, in Wollongong. While attempting to open a damaged metal security gate, the gate fell on him. SafeWork NSW investigated Maluko Pty Ltd (the employer) and found them guilty of breaching sections 19(1) and 32 of the Work Health and Safety Act 2011 (NSW). They were convicted by the District Court of New South Wales and consequently fined $375,000. Action is yet to be brought against the owner’s corporation and strata management company.

What Went Wrong?

The Owners Corporation reported the damaged gate to the strata management firm the day after it became damaged, and the strata manager issued a work order for the repair on that day but did not inform the repairer of any urgency. Neither the Owners Corporation nor the strata management firm carried out a risk assessment or took any measures to reduce the risk of personal injury arising from the damaged gate. The gate was then manually operated at the open and close of business each day by workers at the strata scheme. An announcement was not made, and no signage was erected to indicate the gate should not be used.

What WHS Duties Failed?

In this instance, the owners should have ensured the following:

1. Request priority and urgency around the work order, including following up.
2. Carry out a risk assignment by engaging a third party to provide suitable control measures.
3. Ensure all relevant parties are made aware of the damaged gate.
4. Make safe by restricting access to the area by tape or signage.

The Strata Scheme’s Role

Under sections 106(1) and (2) of the Strata Schemes Management Act 2015 (NSW), the Owner’s Corporation has a duty to properly maintain and keep in a state of good and serviceable repair the common property at the site. Therefore, the Owners Corporation had a duty to renew and replace any fixtures compromised at the site within common property areas. The Owners Corporation must actively participate in decision-making and oversee the strata manager’s performance. Timely reporting of issues is essential. This holds true for Bodies Corporate in Queensland as well.

All bodies corporate have a common law duty of care in relation to anyone in the strata property or visiting the strata property, whether for work or other reasons. Each year, many residential Bodies Corporate are sued when a person is injured through consequence of failing to mitigate reasonably foreseeable hazards that result in a person being injured.

If a Body Corporate is negligent in its approach to safety obligations, it may find itself pursued in one or both of the below scenarios:

1. Defending a prosecution from the local Safe Work entity if the entity thinks the common property is not solely used for residential purposes
2. Getting sued by someone who has suffered damages to person or property because of the BC’s failed duty of care

In conclusion, the recent NSW District Court case illustrates the multifaceted nature of WHS obligations and the overlapping duties each party can have when an incident occurs on common property.

It is recommended that every Body Corporate motions and votes on getting a Safety Report completed every 12 months. When the committee agrees for the rectifications to be done and Body Corporate Manager then enlists the trade services required. This allows the Body Corporate to show that they have done as far as is reasonably practical to minimise risk on the common property.

Accidents will happen, if we all do our best to minimise the risk of harm, this will also assist the Body Corporate in getting insured for a reasonable amount. The same goes for poorly maintained properties. Well maintained building will have a positive impact on your premium. Insurers are now pricing strata to reflect the risk of the area. By maintaining the building assets, and having proactive maintenance will help prevent claims.

Need more information on Work Health and Safety? Call 1300 136 036 or email [email protected]