Case Note ~ NSW Owners Corporation Held Criminally Liable for a Man’s Death Under WHS Duty

Is your Owners Corporation aware of their potential WHS duty? NSW Owners Corporation held criminally liable for a man’s death under Work Health and Safety laws.

SafeWork NSW v The Owners - Strata Plan No 93899 [2024] NSWDC 277 (11 July 2024)

The defendant, The Owners – Strata Plan No 93899, owned a strata titled industrial complex in NSW. Following a fatal accident onsite, the defendant (the OC) was convicted of breaching s20(2) of the Work Health and Safety Act 2011 (NSW) (the ‘WHS Act’). 

What are the facts?

The Owners Corporation (OC) had contracted a strata manager for the management of all repairs on the site. A high-speed collision of a truck with the mechanised gate at the entrance of the complex left the gate damaged and unstable. While the damage was reported right away to the strata manager, repairs to the gate were not arranged on an urgent basis. While waiting for the appropriate repairs to be carried out, the OC arranged for ad hoc posts to be erected by the gate to support the structure but the gate still had to be pushed open manually. The deceased often arrived at the worksite early in the morning to open up the gate for the other employees. When opening up the gate on the morning of the 12th of June, the gate became dislodged and fell onto him, causing fatal injuries.

How did the OC break the law?

S20(2) of the WHS Act confers a statutory duty on the OC as the ‘person with management or control of a workplace’ to ensure that the commercial premises is safe and free of risk of harm.

-          Even though the OC had delegated authority to repair to the strata manager, the Strata Schemes Management Act 2011 (NSW) states the OC must ensure the proper maintenance of the common property, including entrance gates. This delegation of authority does not free the OC from its obligations to ensure a safe working environment.

-          The strata manager was not responsible for ensuring the compliance of the OC under the WHS Act.

-          The Court decided the OC failed to take the necessary steps to eliminate the ‘foreseeable’ possibility that the damaged and unstable gate could cause serious injury. For instance, the OC could have ensured the gate was removed from service or prevented its manual usage while still damaged.

What was the outcome?

The OC was convicted under the WHS act and fined $300,000 with a 25% discount for the guilty plea entered. In an affidavit, a representative for the OC admitted that none of the owners had considered ‘the issue of the gate falling and causing serious risk to health and safety’ and that the OC ‘relied heavily’ on their strata manager to ensure compliance with strata legislation. In this matter, an OC not being aware of their legal duties due to the commercial context of the strata scheme had tragic outcomes.

While we believe this is the first instance of an OC being found guilty of an offence, it is a sage warning for all OC’s out there delaying necessary and critical maintenance obligations, often due to confusion as to where the responsibility should lie.  Given the impacts of this decision, best practice for the OC to ensure that maintenance and safety of the community are paramount concerns.