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Topic
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I own a lot in a apartment Building. And the subject of Personal Injury, in common property raised my attention, after reading an article. So who is liable if an accident/injury occurs in a Building’s common property.
-Owner’s Corporation
– OC Executive Commitee
-The strata management agency of the building
-No one except you who suffered the injury
-A few hypothetical scenario”s
-I have a swimming pool in my Building. The swimming Pool water has made me sick, as the OC failed to get the pool water serviced, or new chlorine added quarterly, something like that.
-Or I trip on a pothole in the carpark, a big pot hole that should really be closed up with concrete!
So in a hypothetical scenario who is generally liable, and accept Liability.
-And are payments made if it’s the OC is found Liable, by there Public Liability insurance, which im certain now in NSW in 2013, all OC’s would have to have Public Liability Insurance surely! Or do they have to make payement by raising a Levy and hitting Owner’s of Lot’s in that specific Building’s hip pockets, to cover the civil claim?
A few thoughts there to discuss and some answers would be good, as it’s got me thinking about apartment building’s and what would happen if a Personal injury occurred on common property of a building
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In NSW this has already been the subject of authoritative consideration: see Ridis v Strata Plan 10308 [2005] NSWCA 246
Ridis was a case in which the front door of an apartment block comprised two doors, each containing a single pane of ordinary annealed (as distinct from safety) glass, which had been etched. The building was a security block requiring keyed entry or the use of an intercom. On the relevant day, Mr Ridis and his partner had left the building to farewell some friends who had been visiting. After doing so Mr Ridis’ partner, who had the key to the front door, opened it and proceeded into the entrance lobby. Mr Ridis was walking about two metres behind her when he saw the door closing very quickly. He instinctively extended his right arm towards the glass pane with fingers flexed in order to prevent the door from closing and locking. As his fingers came into contact with the closing door, it shattered, causing severe lacerations to his right forearm as it passed through the doorframe. Mr Ridis sued the owners corporation for damages, asserting that it had failed in its common law duty of care to him and in its statutory duties under s 62 of the Strata Schemes Management Act 1996 by failing to replace the existing glass with safety glass. Barrett JA, who together with McColl JA formed the majority in that case, held that the owners corporation had not breached its duty of care.
Further, the majority of the court in Ridis held that a breach in s 62 of the Strata Schemes Management Act 1996 does not sound in damages and therefore there is no private cause of action against the owners corporation in the event of such a breach.
So it seems, answering your question, if a personal injury occurred on the common property within a strata scheme, then the owners corporation probably wouldn’t be liable.
mini said
In NSW this has already been the subject of authoritative consideration: see Ridis v Strata Plan 10308 [2005] NSWCA 246
I wonder if this ruling is too specific to be taken as ‘accepted law’? A pane of glass in a door would be different from, say, a hole in a concrete floor that breaks an ankle or a stairway handrail that gives way when someone leans on it.
In the first instance, the glass was fulfilling its major function, in the cases that I cited (which are not all that uncommon) the common property is not fulfilling its intended use.
I’m not saying Mini is wrong, just that I’m not convinced this applies to all circumstances.
And if there is no comeback for injuries caused by a failure of common property why does everyone get agitated (often needlessly) about OHS issues?
Perhaps the distinction is that the plaintiff in this case was bound by Strata law (being an owner) whereas an outsider would be able to call on a whole other raft of legislation.
Anyone with any other thoughts?
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Of course the Owners Corporation can be liable, it’s called occupier’s liability. Why do OC’s have public liability insurance? Being a strata scheme doesn’t exempt an Owners Corporation from that kind of thing.
For example refer here, where the strata manager was held liable in part.
https://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/180.html
And this one, where someone tripped on a driveway.
https://www.austlii.edu.au/au/cases/nsw/NSWCA/2005/256.html
Whilst I agree about the Owners Corporation (O/C) being responsible for the personal well being of persons on its Common Property, that responsibility is not absolute.
Clearly an O/C’s responsibility and liability doesn’t apply if persons on its Common Property have injured themselves by behaving recklessly or contrary to an O/C’s instructions, or if those persons could reasonably be expected to be aware of (and therefore avoid) the situation that caused their injury, or if an O/C could prove that it had taken all reasonable steps to prevent the circumstance that gave rise to that injury.
It’s all about an O/C’s duty of care to itself and persons on its Common Property to identify risks on that property, and then on a prioritised basis to determine what if any actions are necessary to limit or remove the consequent likelihood of injury to persons, and in what timeframes those actions should occur; in other words a risk analysis.
And what about injuries on common property (even where there is personal negligence) where the common property hasn’t been through the legal approval process e.g. a new clothesline close to a common walkway and with the bars at around head height for many persons or someone slipping on grease left by a repairer of some item never approved? Some EC’s probably have little regard or knowledge of rules but are highly averse to the possibility of litigation so this kind of “threat” may be a means of getting their attention.