Shutting the Gate on WHS Liability in Strata

The recent work health and safety (WHS) prosecution cases¹ serve as a stark reminder of the importance of safety and compliance with WHS laws in strata complexes.

A tragic fatality was caused by a falling gate (being common property within an industrial strata complex), and which had been damaged in a previous incident, but had not been adequately repaired or secured.

The Court found the Lot Owner, Strata Manager (SM) and Owners Corporation (OC) responsible for the failure to address the safety hazard, leading to the tragic outcome.

These cases have significant implications for ALL Lot Owners, Strata Managers and Owners Corporations in Australia. It highlights the critical importance of risk mitigation, safety measures, communication and compliance with WHS laws.

The salient points from each case are:

Fines

• Lot Owner – Maluko – Employee Fatality: $375,000
• Strata Manager: $150,000
• Owners Corporation: $225,000

Note: WHS fines are not insurable.

Lot Owner failures and considerations

Failed to ensure as far as reasonably practicable to…

• Develop and implement a safe system of work
• Direct the gate to remain open and unlocked
• Direct to wait until the gate was replaced
• Direct workers not to manually operate the gate
• Implement measures to minimise or eliminate risk
• Inform OC and SM the gate being manually operated
• Inform OC and SM the gate being operated each day
• Raise safety concerns with the OC and SM
• Maintain the health and safety of a particular worker
• Maintain the health and safety of workers generally
• Train or instruct workers in safe systems of work

Strata Manager failures and considerations

• COVID-19 restrictions prevented the SM inspection
• Falling heavy steel gate was foreseeable risk
• Likelihood of the risk occurring was significant
• No burden or inconvenience involved in those steps
• Potential consequence being serious injury or death
• ‘Safety Alert’ for falling gates was available (WA)
• Simple steps available to eliminate or mitigate the risk
• SM advised on the day the gate had been damaged
• SM had its own safety duty under WHS
• SM had the power and obligation to make the site safe
• SM issued work order on day after, but not urgent
• SM not advised of any temporary works to the gate
• SM not aware gate was being manually opened – closed
• The fatality caused by a breach of those safety duties
• The OC and Maluko also had the same safety duty
• The risk was greatly increased by persons unknown

OC failures and considerations

The OC did not …

• Carry out their own immediate risk assessment
• Direct gate to remain open, untouched, unlocked
• Get SM to arrange an immediate risk assessment
• Implement a manual gate safe work method statement
• Place measures to keep people away from the gate
• Take the gate out of service, nor place signage

The OC representative said that “prior to the incident Owners did not understand that they could be liable for breaches of the WHS Act”. The prosecution and incident have caused Owners to ‘carefully consider’ their obligations as persons with control of the common property and “to place greater importance in strata management issues”. Furthermore, “SM had not provided Owners with any guidance or information about their responsibilities under the WHS Act in relation to the common property”. The representative added that the incident “resulted in significant and ongoing discussions’ between the Owners about their duties under the WHS Act and what is required to ensure that the common property is safe and risk free.”

The OC did not know that the burden of any fine would fall upon the Lot Owners.

Key takeaways

Regular inspections and maintenance: SM and OC must obtain regular Safety Reports and act on the recommendations, and conduct regular inspections of common property to identify potential hazards.

Consistent and ongoing actions: SM must ensure the recommendations of the Safety Report are addressed.

Risk assessment and management: A thorough and ‘proper’ risk assessment must be conducted to identify potential hazards and evaluate the likelihood and severity of incidents. This will help prioritise safety measures and allocate resources.

Contractor management: SM must ensure contractors are qualified and comply with WHS laws.

Communication and education: SM should communicate with all stakeholders, including residents, owners, and tenants, about safety issues and the importance of complying with WHS laws.

Compliance with WHS laws: SM must comply with all relevant WHS laws and regulations. This involves providing appropriate training and supervision, and maintaining accurate records.

Conclusion

By implementing effective risk mitigation measures, engaging risk specialists to conduct regular inspections, and maintaining a strong safety culture, SM can help to prevent accidents and protect the well-being of all occupants and their visitors.

Wal Dobrow is a specialist in risk, safety and negligence in property matters and has a Diploma in WHS.

1. SafeWork NSW v The Owners SP93899 [2024] NSWDC 277 (11 July 2024)
   SafeWork NSW v Maluko Pty Ltd [2024] NSWDC 274 (26 July 2024)
   SafeWork NSW v SM P/L [2024] NSWDC 360 (22 August 2024) ↩︎