Strata conviction in SafeWork case shows that Strata are PCBU's.
Jul 17, 2024
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Case: SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
Presiding Judge: David Russell SC [DCJ]
Prosecutor: Barrister Matthew Moir
Defence: Barrister Nick Read
Outcome: Defendant Convicted, Conviction Recorded, Fined $225,000 + $40,000 Costs
Introduction
In a significant ruling by the District Court of New South Wales, The Owners – Strata Plan No 93899 was convicted and fined $225,000 for failing to comply with work health and safety duties, leading to the tragic death of Mr. Jose Martins. This case underscores the critical importance of rigorous safety measures and prompt action in addressing workplace hazards.
Despite the efforts of some law firms, commonly retained by strata, to lobby the minister and make it harder for strata to be held accountable - the court has made it clear strata are a PCBU and are just as responsible for safety of their premises as the occupiers.
Case Background
The incident occurred on 12 June 2020, when a damaged electric sliding gate at an industrial complex in Berkeley, NSW, fell and fatally crushed Mr. Martins, an employee of Maluko Pty Ltd (who were also convicted about a year ago). The gate had been damaged in a vehicle collision eight days earlier and had not been properly repaired or taken out of service.
The strata was managed by Chris Darby Strata Pty Ltd (owned by CNG Property Group). Mr Mario Perossa represented the owners.
Legal Findings
The court found that The Owners – Strata Plan No 93899 failed to meet their duty under the Work Health and Safety Act 2011 (NSW). Despite reporting the damage to their strata managing agent, Chris Darby Strata Pty Ltd (Darby), the necessary repairs were not carried out promptly. The lack of immediate risk assessment and failure to implement safety measures, such as barricades or warning signs, were critical oversights that contributed to the fatal incident.
Key Failings Identified
Failure to Conduct Risk Assessment: No immediate risk assessment was conducted following the vehicle collision that damaged the gate.
Inadequate Safety Measures: The gate was not taken out of service, nor were adequate warning signs or barricades put in place to prevent its use.
Delayed Repairs: The repair order for the gate was not executed urgently, leaving the hazard unaddressed for over a week.
Lack of Communication and Control: There was a failure to effectively communicate the risk and manage the situation to ensure safety until repairs were completed.
Court’s Decision
Judge Russell SC emphasized the foreseeable risk of serious injury or death due to the damaged gate and highlighted the simple, no-cost steps that could have been taken to mitigate the risk. The court imposed a fine of $225,000 on The Owners – Strata Plan No 93899 after a 25% reduction for their early guilty plea. Additionally, the court ordered 50% of the fine to be paid to the prosecutor and required the payment of $40,000 in prosecution costs.
Implications for Strata Corporations
This case serves as a crucial reminder for strata corporations about their responsibilities under the WHS Act. It is imperative for those managing or controlling common property to:
Promptly Address Safety Hazards: Ensure that any reported hazards are assessed and mitigated immediately.
Conduct Regular Risk Assessments: Regularly evaluate the condition of the property and equipment to identify potential risks.
Implement Safety Measures: Use appropriate signage, barricades, and exclusion zones to manage identified hazards effectively.
Ensure Prompt Repairs: Prioritize the timely repair or replacement of damaged equipment and structures.
Improve Communication: Maintain clear communication channels with managing agents and contractors to ensure swift action on safety issues.
Advice to Strata Corporations on Tenant Complaints and Equipment Maintenance
Strata corporations must recognize their duty to act on tenant complaints and ensure the maintenance of equipment to prevent safety hazards. Here are key steps to enhance compliance with WHS obligations:
Establish Clear Reporting Procedures: Implement a robust system for tenants to report hazards or maintenance issues. Ensure all reports are logged and tracked until resolution.
Immediate Response to Complaints: Act swiftly on tenant complaints, especially those related to safety. Conduct risk assessments and take interim measures to mitigate risks while permanent solutions are being implemented.
Regular Maintenance Schedule: Develop and adhere to a regular maintenance schedule for all equipment and common property. Engage qualified professionals to conduct inspections and carry out necessary repairs.
Training and Awareness: Educate property managers and tenants about the importance of reporting hazards and the procedures in place. Provide training on identifying potential risks and the actions to take.
Documentation and Record-Keeping: Maintain detailed records of all reported issues, actions taken, risk assessments, and maintenance activities. This documentation is crucial for demonstrating compliance and managing liability.
Engage Competent Contractors: Ensure that all repair and maintenance work is conducted by qualified and competent professionals. Verify the credentials and track record of contractors before engagement.
Review and Update Policies: Regularly review and update safety policies and procedures to reflect current best practices and regulatory requirements. Ensure that all stakeholders are aware of and understand these policies.
By adhering to these practices, strata corporations can effectively manage their WHS responsibilities, prevent incidents, and create a safer environment for all occupants.
Conclusion
The conviction of The Owners – Strata Plan No 93899 highlights the serious consequences of neglecting work health and safety duties. Strata corporations must take proactive steps to address safety risks, respond promptly to complaints, and maintain equipment to prevent such tragedies. Adopting these measures not only ensures compliance with the law but also protects the wellbeing of all occupants.