The tragic incident involving a gate collapse in a strata titled body corporate highlights the critical importance of duty of care for owners and strata managers in ensuring the safety of residents and occupants. This case underscores the potential legal ramifications of neglecting workplace safety standards in residential, commercial and industrial strata titles schemes.
Table of Contents:
- QUESTION: As the strata manager is a PCBU, are they only responsible for what they intend to control regarding the management and control of common property?
- ARTICLE: The Incident
Question: As the strata manager is a PCBU, are they only responsible for what they intend to control regarding the management and control of common property?
The strata management company is a person conducting a business or undertaking (PCBU). What advice would you give strata managers trying to ensure they are only made responsible for what they intend to control regarding the management of common property?
Answer: Clear and comprehensive communication and policies are essential for ensuring safety and minimising liability.
Strata managers are not only responsible for what they intend to control in relation to common property. Depending on the specific circumstances, a strata manager can be responsible under WH&S laws for anything that occurs on common property because the strata manager is often in control of common property by virtue of their role.
To proactively address safety, strata managers should always ask for enough information when they become aware of potential risks and take urgent action when necessary. Clear and comprehensive communication and policies are essential for ensuring safety and minimising liability.
Consider the terms of your agreements and whether it is necessary to incorporate further provisions into your contracts to address risks and provide clarity as to the scope of your role and responsibilities. Be clear in your work orders about who is actually engaging your contractors. In some work orders, it appears the strata manager directly engages the contractor. Make sure it’s clear you’re doing this as an agent for the owners corporation.
Discuss safety with your clients. You can put resolutions in place that empower strata managers to take action without necessarily going through the processes of detailed approvals.
Have policies and procedures in place in the context of your own workforce, such as regular training of your workforce about their responsibilities and how to deal with situations that may cause risk.
Carolyn Meighan Bugden Allen E: carolyn@bagl.com.au P: 08 9254 6304
This post appears in Strata News #710.
The Incident
On the night of 4 June 2020, a van collided with a gate and water meter in an industrial strata titled body corporate at high speed. The gate remained upright but was bent out of shape, partially pulled off its track, and disconnected from its electric motor. The guideposts were also damaged, and the stopper had come out of position and was no longer capable of preventing overtravel of the gate. As a result of the collision the gate was at a 30-degree angle and was inoperable.
The NSW Emergency Services attended to the site and placed warning tape around the gate and the damaged guideposts.
On 5 June 2020, a number of occupants within the industrial complex removed the tape and undertook makeshift repairs to the gate. These repairs resulted in the gate being able to be operated manually.
From 5 June to 12 June 2020 the gate was manually opened and closed by various persons at the complex.
At 5:45am on 12 June 2020 an occupier in the complex was opening the gate manually when it became stuck and came out of its guide posts and rollers. Because there was no stopper, the gate became unstable and fell onto the occupier. The gate pinned the occupier to the ground at the entrance to the site until other occupiers arrived about 15 minutes later and lifted the gate off him. The incident was recorded on CCTV footage.
The occupier sustained fatal crush injuries as a result of the incident. He was 64 years old.
The gate was removed by a crane on the day of the incident and replaced in late September 2020.
The Prosecutions 2023 and 2024
- In July 2023, the employer of the occupier pled guilty, was criminally prosecuted and received a fine of $375,000, plus costs of $44,000 ([2023] NSWDC 274 ).
- In July 2024, the owners corporation/body corporate/strata company pled guilty, was criminally prosecuted and received a fine of $225,000, plus costs of $40,000 ([2024] NSWDC 277).
- In August 2024, the strata management company pled guilty, was criminally prosecuted and received a fine of $150,000 ([2024] NSWDC 360).
What is the duty of care for owners and strata managers of a commercial/industrial and residential strata titled body corporate?
Both residential and industrial/commercial owners in a strata titled body corporate have duties to properly maintain and keep in a state of good and serviceable repair the common property and to renew and replace any fixtures or fittings upon the common property.
In this case, under WHS law, whether it had been a residential or industrial complex, after the gate was damaged there was a risk to persons suffering serious injury or death as a result of the damaged gate falling, striking or crushing them once they manually operated the gate.
According to the Judge, the risk was created by persons unknown performing ad hoc repairs to put the gate back into service, before it could be professionally repaired.
Owners in a residential or industrial strata titled building and the strata manager of a said building, have a duty to prevent persons suffering serious injury or death as a result of their actions or omissions, albeit under different sections of the WHS Act depending upon whether the owners are defined as solely residential or mixed use/commercial/industrial as follows:
| Solely Residential Owners | Mixed Use/Commercial/Industrial Owners and Strata Managers |
|---|---|
| Are Others and have duties under s29 | Are a PCBU & have duties under s32, s20 and s21 |
| As Others Under s29:
A person at a workplace (whether or not the person has another duty under this Part) must: (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, |
As a PCBU: – s20 (2) of the WHS Act The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. – s21 (2) of the WHS Act The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. |
| The risk, in this case, was created by persons unknown performing ad hoc repairs to put the gate back into service before it could be professionally repaired. | |
| If the Owners as Others chose to perform the act of performing ad hoc repairs to put the gate back into service before it could be professionally repaired, they would be in breach of the WHS Act because they did not: | As a PCBU with management and control of the common property that allowed ad hoc repairs to be carried out and the gate to be put back into service before it could be professionally repaired, they would be in breach of the WHS Act because they did not: |
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| The Owners as Others would also be in breach of the WHS Act if they omitted to carry out the following: | As a PCBU with management and control of the common property and the common property fixtures, fittings and plant, the owners and the strata manager would be required to: |
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Case for basic policies and procedures
This case highlights the need to raise safety as an issue at AGM’s, adopt a safety-first stance when assessing common property management, repairs, maintenance and at least institute basic rules for a site including:
- A procedure for reporting damage promptly, including urgency if possible
- A policy for damaged plant, fixtures, fittings – isolate people, lock off the equipment, fixture or fitting, take it out of service, assess it and repair/replace it.
- Only engage qualified and insured service providers to assess, lock off, repair, replace and/or maintain common property and common property fittings, fixtures and plant, particularly where specialised expertise, skill or equipment is required.
- Ensure routine maintenance/inspection of the common property and all plant, fixtures and fittings
- Request an onsite owner takes responsibility for managing strata issues and dealing with the strata manager
Case for Common Property inspections
So, what is the duty of care for owners and strata managers? Owners may be unaware of the risks posed by damaged plant or fixtures or deterioration to the common property, but they are charged with ensuring that the plant, fixtures, fittings and common property access and egress ways are safely maintained. This is why regular routine maintenance of plant, fixtures, fittings and regular inspections of the common property access and egress ways are a necessary part of maintaining the common property.
QIA Group E: info@qiagroup.com.au P: 1300 309 201
This post appears in Strata News #710.
Have a question about the new WHS legislation and how it relates to strata or something to add to the article? Leave a comment below.
Read next:- NAT: Q&A Indemnity, Waivers & Hold Harmless Clauses in Strata Management Contracts
- NAT: Work Health and Safety in Strata
- NSW: Important Work Health & Safety Case Part 2: Owners Corporation fined $225,000.00 as a PCBU
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