Our pool is compliant, but the gates do not lock. We have unauthorised children who access and use the pool. In NSW, is owners corporation liable for unauthorised pool users?
We have an outdoor pool that complies with current laws. Unfortunately, we have unauthorised pool users who are 13 years old. The pool gates close automatically, but a key is not needed to access the area.
If a child is injured, is a NSW owners corporation liable for the unauthorised pool users? If yes, should we place a lock on the gates?
The legislation states, "The occupier of any premises in or on which a swimming pool is situated must ensure that all doors and gates providing access to the swimming pool are kept securely closed at all times when they are not in actual use" (Swimming pools act, No 4 (17)). There is no mention of whether the gates need to have locks or restrict access.
Yes, the owners corporation may be liable, but it depends on the owners corporation’s mitigating factors.
The Swimming Pools Act 1992 no. 49 (Act) section 15 stipulates that a child restraining barrier is in good repair and Section 16 states that the doors and gates providing access to the swimming pool are kept securely closed at all times when they are not in actual use. Any contravention of the Act may attract the maximum penalty being 50 penalty units.
The owners corporation is responsible for pools and spas on common property and must ensure they are both compliant with the State and Local Council rules and regulations, including registration of the pool and obtaining the requisite certificate and fencing requirements of the pool, which shall be different depending on when the pool was constructed.
With regards to the answer of liability of an injury to a 13 year old for unauthorised use of the swimming pool is: Yes, the owners corporation may be liable, but it depends on the owners corporation’s mitigating factors. These include sufficient signage around the pool with safety and operating hours, by-laws that regulate the usage of the pool, ensuring there is a non-climbable zone of 90 cm that is approximately 120 cm above the ground floor and ensuring the pool is registered and compliant with the current legislation, then your mitigating factors with any contributing factors by the unauthorised user(s) may reduce the owners corporation liability.
Of course, every case and situation is different. The requirement for an automatically locking gate is defined by the Office of Fair Trading as (self latching). As you have noted, there is nothing in the Act that stipulates a lock and key for the gate but self-closing and self-latching gates and there are some locks with keys that are non compliant with the Act. In this situation for your scheme, a by-law that regulates the usage of the pool may be more effective. This will provide the owners corporation with the path to issue breach notices to the offending lot owners.
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Anna Hahm is a seasoned legal practitioner with over a decade of experience running her own firm since 2012. Admitted to practice in the Supreme Court of NSW and the High Court of Australia in 2009, Anna's practice encompasses a diverse range of legal specialties. She specialises in commercial and contract law, property transactions, drafting by-laws, NCAT and debt recovery. She is also fluent in Korean and English, enhancing her ability to serve a wide range of clients.
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