Safety Audits

What happens if a trade’s person is working and injures themselves on the common property of our strata complex? Do we have a defence?

The court will want to know what action the owners and more importantly the representing executive committee took to discharge their common law duty of care obligations and any obligations under the Occupational Health and Safety Acts (NSW & Vic) or the Workplace Health and Safety Act (Qld). Ignorance is no excuse and neither is blame.

Can strata schemes pass on their responsibilities of not maintaining common areas safe?

The Body Corporate/Owner’s Corporation cannot pass its responsibilities onto another - it has either acted responsibly or not. The real risk comes from when an injury is sustained and the Owners Corporation is shown not to be maintaining a safe environment.

If the proper action has not been taken to discharge your responsibilities, you have no defence. Essentially proper action means maintaining the common property in accordance with all Government Regulations, Australian Standards, Industry Codes of Practice and Building Codes. If you don’t take appropriate action and a serious incident occurs, you may have a serious problem on your hands.

What is the risk of failing to provide a safe common area environment?

The department of public prosecutions could find you criminally negligent and you could face a jail term of up to five years. Next you may face a civil suit launched by the injured party or bereaved relatives (sometimes with their case already made for them by the government prosecutors). Needless to say we are talking five, six and sometimes seven figure sums of money in damages, particularly with a Body Corporate /Owner’s Corporation with little or no defence.

In these cases lawyers try to sue everyone with any involvement in the Strata block. The first port of call is the Owner’s Corporation/Body Corporate committee. In our experience with these matters a letter threatening legal action will go out to every person they can connect with the incident, the building and the committee controlling it. Experience has also shown that, if despite the responsible parties taking action to ensure the common property is safe under OH&S guidelines an accident occurs, the court takes into account those actions when awarding damages and apportioning that liability.

Are strata schemes in NSW excluded from legislative requirements pertaining to OH&S & WH&S ?

The Occupational Health and Safety Act or the Workplace Health and Safety Act are the primary reason for assessing the common property for possible risks. Quantum Qs offers reports that assess the common property under OH&S guidelines. In NSW there has been some confusion in this area since Workcover, the government body that manages OH&S in NSW, has put through an exemption for only part of the regulations (sections 33 to 44). This does not mean that an Owners Corporation does not have any obligations. In fact Workcover make it clear that the obligation to provide a safe common property area must be met in their explanatory note: - While common law duty of care is the primary risk many people also sight.

'Owners Corporations are still obliged under section 10 (1) of the OH&S Act to ensure that the common property, when used as a place of work, is “safe and without risks to health".

Under the Occupational Health and Safety Act or the Workplace Health and Safety Act, the Body Corporate/Owners Corporation is a ’person in control’ of a workplace. Owners Corporations and Body Corporates are clearly obligated under the respective Acts, to ensure that the common property is “safe and without risks to health”

Are 'Owners Corporations still obliged under section 10 (1) of the OH&S Act to ensure that the common property, when used as a place of work, is "safe and without risks to health"?

Under the Occupational Health and Safety Act or the Workplace Health and Safety Act, the Body Corporate/Owners Corporation is a ’person in control’ of a workplace. Owners Corporations and Body Corporates are clearly obligated under the respective Acts, to ensure that the common property is "safe and without risks to health"