A heart-breaking, cautionary tale for strata managers and owners corporations emerges from the decisions in SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360 and SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277. The strata company and Owners Corporation, together with the original developer, were recently criminally prosecuted for breaches of health and safety duties arising under the Work Health and Safety Act 2011 (WHS Act), arising from an incident in which a worker was killed after the common property entrance gate fell on him.
The incidents
The incidents
In brief, an electronic entrance gate at the industrial strata complex was significantly damaged after a vehicle collided with it at high speed. Critically, the stopper that prevented the gate from travelling too far when closing, was displaced and not operational. Although makeshift repairs were made by occupants of the complex to allow the gate to be operated manually, it did not eliminate the risk of the gate over-travelling and falling. The strata manager was not advised of the makeshift repairs. Although a work order for repairs was submitted to the repairer the day after the collision, the strata manager did not request that the gate be repaired urgently, and the repairer was not advised of the urgency for the repairs. A water meter also damaged was urgently repaired the day after the incident. A week later, a worker was trying to open the gate when it over-travelled and came free of the supporting rollers. The worker was trying to manoeuvre the gate back between the supporting rollers when the gate fell, trapping him under the gate and injuring him fatally.
Criminal charges under the WHS Act
Criminal charges under the WHS Act
SafeWork NSW brought charges against Chris Darby Strata and the Owners Corporation for failing to take practicable measures in respect of the damaged common property gate to eliminate or minimise the risks to the health and safety of any persons. The District Court held:
- the risk of the gate falling was foreseeable and its likelihood significant;
- simple, no-cost steps could have been taken by both the Owners Corporation and Chris Darby Strata to prevent or minimise the risk;
- the potential consequences of the risk were serious injury or death;
- the death of the worker was caused by the breach of a safety duty due by Chris Darby Strata and the Owners Corporation; and
- it was a continuing offence that exposed workers to the risk on several days.
After considering various factors, such as general deterrence, the emotional harm, loss or damage caused by the offence, mitigating factors (no prior convictions, remorse, assistance given to law enforcement authorities, etc), an early guilty plea, and the Victim Impact Statement from the daughter of the deceased worker, the Court imposed a substantial fine on both Chris Darby Strata and the Owners Corporation, and ordered that they pay the prosecutor’s costs.
—Nancy Torry
© Bugden Allen Group Legal Pty Ltd. All information contained in this article is of a general nature only and you should obtain specific legal advice in relation to any property-related affairs on any of the topics mentioned.
