Safety Duties on Common Property: National Impact from the Fatal Gate Case

The recent, tragic “fatal gate case” in NSW delivers a sobering message to the strata community:

Work Health and Safety (WHS) obligations on common property aren’t just administrative tasks. They are critical duties with profound legal and moral implications.

A landmark SafeWork NSW prosecution starkly reminds Owners Corporations (OCs), often Persons Conducting a Business or Undertaking (PCBUs), they bear significant responsibility for the safety of workers, residents, and visitors on common property.

SafeWork NSW v The Owners – SP93899 (2024) involved a worker fatally crushed by an unstable gate at a Berkeley, NSW industrial strata complex. The OC, its Strata Manager, and the site’s business were all prosecuted under the WHS Act 2011 (NSW). The OC was fined $225,000 (after an early plea), the business $375,000, and the Strata Manager $150,000.

The key takeaway: an OC, or any party managing or controlling common property, owes a WHS duty of care. This duty is not extinguished by delegating tasks to a Strata Manager or contractors. While delegation helps, the ultimate responsibility for a safe environment remains with the OC. Simple, no-cost steps, such as taking the gate out of service immediately, could have eliminated the risk. The Court found the gate’s risk foreseeable, significant, and easily preventable. Its continued unsafe use was critical to the decision.

WHS legislation across Australia: A national overview

While the fatal gate case occurred in NSW, WHS obligations for OCs are largely consistent nationwide due to harmonised WHS laws. All states and territories (except Victoria with their own OHS legislation) have adopted a similar framework, placing a primary duty of care on a PCBU to ensure, so far as is “reasonably practicable” (a legal term defined under s18 of the WHS Act), the health and safety of workers and other persons at the workplace.

Is an OC a PCBU?

An OC (or body corporate, strata company, etc.) is generally considered a PCBU when it manages common property and engages workers including contractors (definitely a PCBU when it has employees). This applies almost universally to the common property of all strata schemes –residential, commercial, industrial, or mixed-use –as they invariably become ‘workplaces’ for cleaners, gardeners, trades people, or strata managers. Specifically, lot owners are ‘other persons’ under s29 WHS Act whose “actions or omissions must not adversely affect the health or safety of any person”, and who also have a duty to ensure that the common property is free from hazards.

Civil Liability Act considerations

Beyond direct WHS prosecution, OCs also face civil liability for negligence under common law and state/territory civil liability acts. The key civil liability principles are:

1. Foreseeability: What you knew or ought to have known about the risk.
2. Significance: Was the risk not insignificant (i.e., a real and appreciable risk)?
3. Reasonable Precautions: What would the reasonable person do in the circumstances to prevent the harm?

Crucially, successful WHS prosecutions often lay the groundwork for subsequent civil claims for damages, as a finding of a WHS breach can serve as compelling evidence of negligence.

A safety compliance checklist for OCs

Given these significant responsibilities, proactive WHS and civil liability management are paramount for every strata scheme. Here is a checklist to assist OCs in meeting their obligations:

1. Appoint qualified safety contractors: Prioritise contractors with relevant WHS qualifications, ideally a Diploma in WHS.
2. Consult with PCBUs/workers: Share WHS information and collaborate on shared risks.
3. Develop WHS procedures: Establish clear incident reporting, emergency plans, and inductions.
4. Engage competent contractors: Verify licenses, insurance, WHS policies; provide clear scopes and monitor work.
5. Identify & assess hazards: Conduct regular common property inspections; engage professionals for complex areas; document all findings.
6. Implement & maintain controls: Apply the hierarchy of controls (eliminate, substitute, isolate, engineer, administer, PPE); ensure measures remain effective.
7. Maintain Essential Safety Measures (ESMs): Regularly service fire systems, lifts, etc., and retain certifications.
8. Retain records: Keep all WHS documentation (risk assessments, reports, contractor insurances).
9. Review & improve: Annually review your WHS system and learn from any incidents
10. Understand your PCBU role: Confirm your scheme engages contractors, making you a PCBU; ensure committee members understand their responsibilities.

The fatal gate case underscores the serious and ongoing WHS responsibilities of OCs. By proactively identifying and managing risks, engaging competent professionals, and maintaining thorough records, strata schemes can significantly reduce their exposure to WHS prosecutions and civil liability claims. Ultimately, it is not just about avoiding penalties and reducing your insurance premiums; it is about safeguarding lives, including your own and protecting the communal investment.