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Topic
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For the past three years our NSW strata manager has listed on the meeting agenda the proposal for a WH&S audit and ACM audit. I’m not on the Committee, and every year when I read the subsequent meeting minutes I find that the Committee has resolved to postpone the audits yet again. This situation is really beginning to stress me as I’m unsure how dangerous it is, but it seems to me extremely foolish.
I presume the Committee thinks that pleading ignorance of stuff requiring fixing in the event of an incident will protect them with regards to our insurer meeting any claim. However, a friend says that ignorance is no excuse, and in any case the first thing the insurer would do is look at the minutes and see how they are repeatedly ignoring their responsibility.
I’ve told the strata manager that I’m worried about an issue on Common Property that I think is potentially dangerous and needs fixing, asked him to make the Committee aware of it and also the concept of unlimited liability. This hasn’t produced any action.
My questions:
1. How worried should I be?
2. Should I force the Committee to act? If so, how?
3. How can I protect myself financially from any possible future incident claim being made if the insurance company doesn’t pay out? e.g. Document in writing to the strata manager or the Committee my awareness of the issues and my attempts to force the Committee’s hand, if that’s to be done? Send a letter to the Committee by registered post telling them that I will personally sue them in the event of an incident where the claim is unpaid to reclaim my share of the sum for which I might be liable?
Please help.
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Replies
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You’re right to be concerned. Obviously the strata manager is protecting his interests in having the matter listed each year. What I cannot understand is your focus on the Executive Committee. It’s the owners, present in person or by proxy at the Annual Meeting who accept or reject each motion listed on the agenda. You have a right to speak for or against each motion at the AGM. Do you attend the AGM, or direct your proxy to vote for or against the motion? So what happened over the last three meetings? Unfortunately a lot of this stuff happens when owners are disinterested and leave it all to others, it’s pleasing to see you are concerned about the matter, but you need to take part in AGM decisions and influence other owners to also do so.
OMG,
Our strata had a similar problem in regard to balcony railings. Because we had work done that affected them we needed to bring them up to current code. I raised the issue (again and again) and in the end was told that it was only because I had brought it to the notice of the OC that we had to do it.
One committee member told me that if I hadn’t put my concerns on record we would have been covered by insurance. I took this view to a lawyer and was told that view was incorrect. Everyone is assumed to know the law and it all gets down to how a ‘reasonable’ person who act. In our case the first thing that would have happened if we had a claim to do with the balcony and especially if it was a big claim, is that the insurance company and maybe workcover would have had investigators look at the circumstances. The condition of a high use item such as balcony railings is something a reasonable person would notice. Also as we had had work done that affected them we couldn’t plead ignorance.
The lawyer said, for strata containing residential units only, it is similar to a car defect for non commercial car owners. Except for high use and visible items eg tyres and windscreens you don’t have to carry out detailed inspections yourself. In most cases ‘everyone keeping their eyes open for obvious potential hazards would suffice’. After all how many home owners do you know who have WH&S audit and ACM audit at the place they live in?
1. How worried should I be?
In regards to the problem you have identified very.
2. Should I force the Committee to act? If so, how?
Absolutely, what I said was if we have an incident and say a large claim is made the insurance company will send an investigator and try to find a way to not pay.
3. How can I protect myself financially –
I don’t know if you can!
OMG – without in any way diminishing the need for your Owners Corporation to be aware of and to correct any risks arising from Workplace Health & Safety issues (WH&S) and from Asbestos Containing Materials (ACM) on its Common Property, IF your Plan is entirely residential then Audits of neither is legally required.
OMG – No problem; posts often overlap with two-fingers typists!
I think there’s a way forward for you, but so as to not lead you down the garden path, without identifying your Plan can you tell us what your WH&S concerns relate to – like something that your Owners Corporation should in the normal course of events be attending to?
As Whale says for a purely residential complex the WH &S is not required and is not a legal requirement in NSW (applies to most states).
Their is nothing stopping you having one done or just getting the repairs done by the OC that you know are required (without a WH & S).
If you KNOW of a health and safety issue that the strata have been informed about your insurance for this issue could be in jeopardy (the same applies to a issue within your lot as well) whether you have had a WH & S done or not.
Submit a motion to the next AGM specifing
Their is a serious H & S issue with the XXX which needs fixing and I ask that the AGM authorize the EC to action the repairs within x months.
Now you have it on record what the issue is and you are asking the OC to authorize the EC to fix it.
If they vote the repairs down and you are so concerned you could go to conciliation and adjudication to get the repairs done.
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