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Unsure if this is the place to ask my question, if not feel free to place it on the appropriate place.
If an OC knowingly hires tradesmen – because some owners always want what they perceive is cheap – that are uninsured and while working at the strata are injured or killed, is the OC liable for damages?
Does anyone know of court or tribunal cases which shed light on this?
Thank you.
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Yes. If an incident occurs on common property then there is always a chance the Owners Corporation will be liable. The absence of insurance held by the contractor just makes that more likely.
The supreme court just held an Owners Corporation liable for a fatality that occured on site and it was an employee of a lot owner.
SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277 (11 July 2024)
I’d check the terms of your Public Liability cover. Many policies stipulate that any contractors must have their own PL coverage.
@Newcastle_SM
I am re-posting as I am unsure if my earlier post was sent.
Great to hear that the OC in question got a taste of reality. So many owners and committee members think that they have no obligations and don’t want to bother themselves with acquainting themselves with the law.
I hope the estate of the deceased sues every member of the OC or at least of the SC .
The Forum post mentions Safe Work (NSW) was successful against the employer of the deceased. Your post shows that Safe Work (NSW) was also successful against the OC. Well done Safe Work (NSW)! This should be a wake up call to the many clowns sitting uselessly on committees to realise the circus is closing down and that they have real world obligations.
I hope the estate of the deceased sues the pants off each member of the SC personally.
And this, from the Forum thread, reposted here to avoid confusion – JT:
There is mention of proceedings under foot against the OC and MA.
It is unclear if this by the estate of the deceased or by Safe Work (NSW)?
Mention is made that:
On 5 June 2020 a number of occupants, not including Maluko, attempted to undertake makeshift repairs to
the gate. These repairs did not remediate the damage to the gate nor eliminate or otherwise address the
risk of the gate falling or collapsing.Were these repairs authorised by the SC or OC?
Who knows? The makeshift repairs may have only increased the risk of a catastrophic event occurring.
Thanks for the feedback, recommending I look at the insurance policy.
In regards to EXCLUSIONS from PL coverage, our policy states:
1. in connection with any liability for Personal Injury to any employee arising out of or in the course of their employment with You.
2. in respect of liability imposed by the provisions of any workers’ compensation, accident compensation or similar legislation applying where Your Insured Property is situated.3. in respect of:
a. damage to property belonging to, rented by or leased by You or in Your physical or legal control, other than as provided under the operative items of Policy 2;
b. damage to property belonging to any person who is deemed a worker or employee within the provisions of any workers’ compensation, accident compensation or similar legislation applying where Your Insured Property is situated;Correct me if I am wrong, but surely a court would hold that these policy exclusions targeting an “employee” or a “worker” of a maintenance company, would equally apply to a person who is self employed?
Correct me if I am wrong, but surely a court would hold that these policy exclusions targeting an “employee” or a “worker” of a maintenance company, would equally apply to a person who is self employed?
Aren’t the exclusions from the insurer’s liability rather than the legal liability of the owners corp? In which case, self-employed tradies would also be excluded, as you say.
It’s a common misconception in strata that if the insurer won’t cover an issue then the owner’s corp is not liable. In fact, it’s usually the opposite – the OC’s liability is unlimited in many if not most cases.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
@Jimmy
I agree with your thinking. The OC’s liability is IMHO indeed unlimited. I suppose some owners don’t want to concern themselves with the time consuming tasks of actually being informed about insurance policies and will willfully delude themselves as to what is and what is not.
As I understand it,
An “employee” would need Workers Comp Insurance provide by the SP, and would have PAYE tax deducted from from “wages”. Superannuation may also be payable by the SP. They are not covered under PL.
A “contractor”, inc sole traders, should have an ABN and PL insurance, and issue Tax Invoices to the SP for work charged.
I think the point is that Owners Corporations need to be sure they have adequate work safety cover for anyone working on common property and that means checking that employers or self-employed tradies are covered. I have yet to receive a coherent answer on what happens if a cleaner working for an Airbnb host slips and is injured in a puddle created by a defect in common property (like inadequate drainage).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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