A Webinar presented by Michael Teys on 7 April 2001

1. Death on The Common Property - Who’s Guilty? Webinar 7 April 2011 © Copyright 2011 Teys Lawyerswww.teyslawyers.com.au

2. A $10 latch and 10 minutes work would have saved this boy’s life Iman Akter Mostafa, aged three (top left), died when he fell from a window of a strata scheme in Kogarah in 2009. http://www.chw.edu.au/parents/kidshealth/building_falls/

3. Who’s guilty for death on common property depends on……….. who dies? obviousness of risk probability of risk magnitude of risk cost or inconvenience of avoiding risk The Shirt Calculus; Wyong Shire Council v Shirt (1980) 146 CLR 40 © Copyright 2011 Teys Lawyerswww.teyslawyers.com.au

4. Applying the Shirt Calculus for Iman

5. There are no prizes for leaving out possible defendants Owners corporations Executive committees Strata managers Building managers Property managers Safety consultants

6. An owners corporation’s duty of care is three dimensional The common law for all entrants The strata law for owners / occupiers The statutory laws for workers

7. 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

8. Findings of negligence in Toomey’s case Architect liable for ambiguous plans Building contractor liable for non-compliance with applicable standard Project manager liable for failure to inspect and supervise the building contractor Surveyor was negligent in failing to detect and have corrected the defect in the plan The surveyor’s employer was vicariously liable for the surveyor’s negligent conduct The building inspector was liable The party guests were liable for skylarking on the balcony The plaintiff was guilty of contributory negligence at 30% for being drunk

9. Reasonable care 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

10. 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 post-construction 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

11. A shift to affirmative action in NSW Reasonable steps Best endeavors Reasonable care … all fail the test of strict liability for repair and maintenance of common property in NSW; Seiwa v SP 35042 (2006) NSWSC 157, Trevallyn-Jones v SP 50358 (2009) NSWSC 694

12. Applying Seiwa to injury cases

13. A qualified duty of care exists in WA Drexel London v Gove (Blackman) (2009) WASCA 181, New Years Eve party Balcony collapse injuring 35 people – building products substituted when constructed Builder and engineer liable, owners corporations only liable “if it knew or ought to have known of the structural defect”

14. Strata manager v body corporate 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-visstrata manager

15. Owners corporation v property manager Wu v Carter (2009) NSWSC 355; plaintiff fell and was awarded $775,000 plus costs Railing was dangerously defective at the commencement of the tenancy but a “shake test” by the property manager would have detected the problem Owners corporation 75% responsible, property manager 25%

16. Residential common property is always a workplace Occupational health and safety laws extend to common property because workers access this space Controllers of work premises, plant or substances, must ensure the premises are safe and without risks to health OHS Exemption Order 014/07 NSW has no effect on an owners corporation’s obligations as a controller of the premises

17. Strata managers are also controllers Control means the power to compel, direct or command Issuing work orders and paying for work undertaken fit this definition Refusal by an owners corporation to adopt safety procedures does not exempt strata managers Non-compliant owners corporations should issue their own work orders

18. New work health and safety laws apply nationally from 1 January 2012

19. Residential exemption likely to be meaningless and confusing

20. Beyond WHS other laws and standards are sprouting For example, AS 3745-2010 Planning For Emergencies In Facilities Emergency plans are required to document emergency response procedures for buildings Pool safety laws, asbestos laws etc

21. Best practice recommendations Develop an emergency plan

22. Join our next webinar Join us for our next webinar at 4.00pm on 5 May 2011: “How To Make Your Apartments Last As Long As You Do” Reserve your seat now at:https://www3.gotomeeting.com/register/557337134

23. 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 Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate and apartment owners. The firms practice groups include building defects, strata management disputes, strata titles property law, by-laws and levy collection. Subscribe for their free e-newsletter StrataSpace and find out more about them at www.teyslawyers.com.au © Copyright 2011 Teys Lawyerswww.teyslawyers.com.au