An important decision in New South Wales confirms that a strata body corporate with management and control over common property owes a duty of care under the Work Health and Safety Act (WHS Act) to ensure steps are taken to maintain the safety of that property.

In SafeWork NSW v The Owners Strata Plan (2024), the Court imposed a penalty of $300,000 on an owners corporation for an incident that involved the collapse of a perimeter gate at an industrial complex, which fell on top of and killed a worker.

Background

Maluko Pty Ltd had built a strata title industrial complex at a site in Berkeley, New South Wales, and occupied a tenancy in the site. Maluko employed five workers, including Mr Martins.

The owners corporation engaged a strata management agent, Chris Darby Strata Pty Ltd (Darby), to maintain the common property and effect repairs at the site. Darby employed a strata manager, Ms Johnson, who was responsible for the day-to-day management of the site, on behalf of Darby.

A fence was constructed around the site, which included a heavy sliding electric gate, which was approximately 8.5 metres long and over 2 metres high. The gate included guideposts and an endstopper, and was fitted with a sensor. Ownership of the gate was vested in the owners as it was part of the common property at the site.

On 4 June 2020, a van collided with the gate at high speed. As a result of the collision, the gate remained upright but was at a 30-degree angle and was effectively inoperable. NSW State Emergency Services attended the site and placed warning tape around the gate. The gate was not repaired, replaced, made safe or otherwise attended to following the collision.

The owners corporation reported the damage to Darby on the morning following the collision. While Darby took some measures to arrange for the gate to be repaired, it did not arrange for the gate to be repaired or replaced as a matter of urgency.

On 5 June 2020, a number of occupants within the site conducted makeshift repairs, which allowed the gate to be operated manually. However, this created a risk of the gate becoming unsupported and falling.

On 12 June 2020, Mr Martins arrived for work at the site and completed his usual duty of opening the gate before the arrival of the other workers. Mr Martins was having difficulty opening the gate, and as he was attempting to push it open when it became unstable and fell onto him. Mr Martins suffered fatal crush injuries as a result of the incident.

In the week leading up to the incident, neither Darby nor the owners corporation had ensured that a risk assessment was conducted in relation to the gate being operated manually. There was no direction or information provided to anyone at the site that the gate was not to be touched or operated manually until it was repaired or replaced. There was also no system in place for ensuring that the gate was taken out of service from the date of the collision to prevent it from being used.

Decision 

In hearing the guilty plea of the owners corporation, the Court heard that it had attempted to delegate full authority to Darby to effect repairs of common property at the site and that, prior to the incident, Darby had not informed them of their responsibilities under the WHS Act.

The Court found that the owners corporation was liable as it had a residual duty of care based on its management and control of the common property. In particular:

• the risk of the gate falling was foreseeable;
• the likelihood of the risk occurring was significant;
• the potential consequences of the risk were serious injury or death;
• the steps available to the owners corporation, including taking steps to make sure the gate was taken out of operation completely would have eliminated the risk, and were of no cost or burden; and
• while the owners corporation reported the damage to the gate to Darby and followed up with Darby to have the gate repaired, the highly unsafe gate was left in that state for over a week.

The Court stated, "as the owner of the common property, which included the gate, it had the power as well as the obligation to make the site safe".

Both Maluko and Darby were also successfully prosecuted.