Repairing and Maintaining Common Property the Inconvenient Truth

Repairing & Maintaining Common Property:
The Inconvenient Truth
A presentation for the Body Corporate Industry Expos 2012
© Copyright 2013 Teys Lawyers

www.teyslawyers.com.au

A Body Corporate’s Duty for Common
Property is Three Dimensional
Duty of Care
The common law of
occupiers liability

Duty to
Ensure
Health &
Safety
WHS Act 2011


Duty to
Maintain &
Repair
SM 159 / AM 157


Defining Common Property
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•

Tiles on walls and floor?
Claw foot bath?
Shower screen?
External wall?
Internal wall?
Cornices?
Light fitting?
Paintings?
Pipes?

The Statutory Duty to Maintain and Repair
The 5 principles from Seiwa v
SP 35042 [2006] NSWSC
followed in Qld in Magog
(Prada)
1. Must means ‘must’
2. Proactivity required
3. Fix defects first, sue later
4. Applies to all the common
property
5. Lot owners can sue for
breach


Common Law Duties Go Beyond Lot Owners

Purchasers

Tenants
Trespassers
Visitors



Reasonable Care Includes Compliance
With Australian Standards When Built
• Railings 50 mm below
Australian Standard when built
• Drunk “buck” fell when
squeezing past wrestling
mates and became a
paraplegic

• $3.21m damages against
owners corporation reduced
by 30% contributory
negligence; Toomey v Scolaro
Concrete Constructions and
Ors (2) [2001] BSC 279


Reasonable Care at Common Law Does Not Include
Retro Fitting for Changing Australian Standards
• To take reasonable care to protect
people from risks that can be
foreseen and avoided; Ridis v SP
10308 (2005) NSWCA 246
• A majority decided some form of
proactive management was
required of owners corporations
because of s.62 SSMA 1996 but
Australian Standards about glass
are not retrospective


Reasonable Care Includes Adopting New
Non-structural Australian Standards
• A carpet off-cut tripped a man
who fell down the stairs
• A $25 non-slip mat
recommended by a postconstruction Australian
Standard would have avoided
the accident
• Home unit blocks with higher
density require greater
precautions than an ordinary
home; Morgan v SP 13937
(2006) NSWSC 1019


Strata Manager v Owners Corporation
• Wong v Body Corporate 1 Plan No
433814P (2009) VCC 0100

• Slip and trip at the dentist. Strata
manager responsible for routine and
minor repairs and maintenance and
general advice
• No delegation of responsibilities
• Manager arranged safety report that
did not recommend non-slip
treatment for tiles
• Body corporate 100% responsible
vis-à-vis strata manager


This Year the Stakes are Higher Due to a
New WHS Regime
• Recklessness / risk
– OC / BC $3 million
– Committee $600,000 / 5 years jail
– SM $300,000 / 5 years jail

• Breach / risk
– OC / BC $1.5 million
– Committee $300,000
– SM $150,000

• Breach
– OC / BC $500,000
– Committee $100,000
– SM $50,000


But the Defence for Personal Liability is Clearer
1.
2.
3.
4.
5.

Keep up to date
Understand operations
Eliminate or minimise risks
Process information
Supply resources and
processes
6. Verify provision and use of
resources and processes
(Due diligence defence S.27(5)
WHS 2011)


New WHS Laws at a Glance
Effective 1 January 2012 in QLD, NSW, ACT
No ‘grace period’ for compliance (OHS plans good for 12 months)
OC / BC = Person carrying on a business or undertaking
Residential strata exemption confusing & virtually useless
Reverse onus removed - prosecution must prove breach



The New WHS Approach

‘Work’ is the key
concept not
‘Workplace’


PCBU
concurrent
duties of care,
consultation &
co-operation

Positive duty for
officers to
exercise due
diligence

Significantly
increased
personal liability


Person Carrying on a Business or Undertaking
Business

Profit

Residential purposes only
exemption – applies only
to occupants doing
domestic work

PCBU

Volunteer association
exemption – strata fails
community purpose test

Non-profit

Undertaking


PCBU’s in the Strata World
Owners
Corp / Body
Corp
Strata
Manager
Building
Manager

Lot Occupier



Persons Who Are Not A PCBU

A strata body that is
responsible for any common
areas used only for residential
purposes is not a PCBU so long
as no worker is engaged as an
employee (s.7 WHS Act 2011)



Only for Residential Purposes Means No
• OC / BC employees
• Common property with
commercial lots
• On-site letting agent
• Lots used as home businesses
• Nannies employed in lots
• Lots for short term
accommodation
• Communication towers /
satellite dish / advertising signs
• Paid workers temporarily on
site


The Basic WHS Duty of Care
“To ensure, so far as is
reasonably practicable, the
health and safety of
workers and other
persons”
Hargreaves v Telstra Corp Ltd
[2011] AATA 417 (17 June
2011) is the high water mark


Reasonably Practicable Depends on ……
Likelihood of risk

Degree of harm

Actual or imputed knowledge

Options to eliminate & minimise risk

Cost v risk



Primary Duties of a PCBU
Safe Work
Environment

Conditions &
Health
Monitoring

PCBU
Primary
Duty of
Care

Adequate
Welfare
Facilities

Info, Training,
Instruction,
Supervision

Safe Plant &
Structures

Safe Work
Systems

Safe Use
Handling &
Storage

Additional Duties of PCBU in Control of a
Workplace
“The person with management or
control of a workplace must ensure,
so far is reasonably practicable,
that the workplace, the means of
entering and exiting the workplace
and anything arising from the
workplace, are without risks to the
health and safety of any person”
S.20 WHS Act 2011


Special Rules for Asbestos

For buildings built prior to 1 January 2004


• Must identify all
asbestos
• Must have a register in
any event
• Register must be kept
on site
• Asbestos management
plan required if
asbestos is identified
• For major repair or
demolition special rules
and procedures must
be devised

Duties of an Officer of a PCBU
“An officer of a PCBU
must exercise due
diligence to ensure that
the PCBU complies with
its duties and obligations”
S.27 WHS Act 2011


Officers in the Context of Strata
• Committee members
• Original owner
• Compulsory
administrators
• Strata managers
• Building managers



Think 3-D ‘Demonstrating Due Diligence’



We Can Help You Develop a Systematic Approach
to WHS Due Diligence
 27 page checklist style report
 Specifically addresses the 6
due diligence requirements

 Contains 8 easy to use forms
and precedents
 Customised for each body
corporate at $395 + GST


About the presenter
Michael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He

has a Bachelor of Laws and practices exclusively in the area of strata
title law. He is a Fellow of the Australian College of Community
Association Lawyers. He was formerly an Adjunct Lecturer with Charles
Sturt University. He appears weekly on SKY News Business Channel's
Property Success with Margaret Lomas and is a regular panellist for the

property edition of Your Money, Your Call for the same channel. You can
find out more about Michael at www.michaelteys.com or follow him on
Twitter @MichaelTeys.com
Teys Lawyers practice nationally in strata title law representing owners corporations, bodies
corporate and apartment owners. The firm’s practice groups include building defects, strata

community disputes, strata titles property law, by-laws and levy collection.
Subscribe for their free e-newsletter StrataSpace and find out more about them at


Repairing and Maintaining Common Property the Inconvenient Truth

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Repairing and Maintaining Common Property the Inconvenient Truth