ACT lot owners are wondering about the responsibility of the Owners Corporation regarding accessing common property.
Table of Contents:
- QUESTION: If an OC does not have a specific rule preventing residents or non-residents from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
- QUESTION: We have two playgrounds at our large unit complex which are effectively open to the public. What are the Owners Corporation’s responsibilities in relation to playground safety?
Question: If an OC does not have a specific rule preventing residents or non-residents from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
If an OC does not have a specific rule preventing occupiers from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
Also, how might an OC deal with situations where non-occupiers come into the complex to go through the recycling looking for items that attract a refund and when confronted by occupiers have been very nasty and rude towards the occupier?
Answer: The duty of care owed by owners corporations to occupiers and entrants on the common property is to take such care as is reasonable in the circumstances.
The duty of care owed by owners corporations to occupiers and entrants on the common property is to take such care as is reasonable in the circumstances. This duty to take reasonable care requires the occupier to protect entrants and occupiers from a risk of injury which can be foreseen and avoided. To discharge this duty, the occupier must do what a reasonable person would do, in the circumstances, by way of a response to a foreseeable risk.
Generally, an owners corporation will not breach a duty of reasonable care when someone is injured because of a defect in the premises which could not have been ascertained without expert examination, in circumstances where there was nothing which would have caused the owners corporation to believe such an examination was needed.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #464.
Question: We have two playgrounds at our large unit complex which are effectively open to the public. What are the Owners Corporation’s responsibilities in relation to playground safety?
I have raised the issue of playground safety with our Executive Committee. We have two playgrounds at our large unit complex. They are fairly simple in nature with swings, slides and similar play equipment.
However, they are effectively open to the public as there are no gates or other barriers preventing adults and children from neighbouring areas using our playgrounds, which they do.
What are the Owners Corporation’s responsibilities in relation to playground safety? Among other things, should we have regular, documented safety inspections done and/or should we erect signs providing guidance to residents and visitors about using the playgrounds?
Answer: The greater the foreseeability of risk and probability of harm caused by a defective playground, the higher the obligation on the Owners Corporation or executive committee to take precautions to prevent harm.
In determining whether the Owners Corporation or executive committee have breached the duty of care owed to residents, occupiers or visitors, the essential question is whether the owners corporation or executive committee knew or ought to have known that the playground was dangerous and failed to take precautions to address the danger?
The greater the foreseeability of risk and probability of harm caused by a defective playground, the higher the obligation on the Owners Corporation or executive committee to take precautions to prevent harm. For example, it is implicit from the relevant court decisions that if an Owners Corporation or executive committee was aware that a non-BCA compliant playground was also dangerous, they could be liable for any resulting injury. Such knowledge may be imputed from:
- building reports or complaints highlighting the safety issues of a playground; or
various safety incidents caused by a defect in the playground, indicating to the owners corporation or executive committee that the playground is unsafe.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #410.
Have a question about the safety responsibilities around a common property playground or something to add to the article? Leave a comment below.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Read next:
Visit Maintenance and Common Property OR Australian Capital Territory Strata Legislation pages.
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