Question: Our complex has been without lights in our very dark grounds for 3 months. There have been delays due to weather. While the committee tends to the matter, we’ve suggested temporary lighting. Does the OC have a duty of care to provide lighting?
Our complex has been without lights in our very dark grounds for 3 months. It is pitch black outside at night. The blame for lack of lighting has been the inclement weather. Now it’s been decided that the old lights will be replaced once the committee choose from 3 quotes. This will take time too.
My husband fell over a couple of weeks ago because he couldn’t see. Some residents have suggested temporary lights whilst we wait for the committee. This is so dangerous and there seems to be no duty of care considered.
Answer: Yes, the owners corporation does have a duty of care over the common property and based on your situation, it does sound hazardous.
This is not an uncommon scenario, particularly in strata schemes away from busy suburban areas with minimal streetlights and minimal light from neighbouring properties. It sounds like initially the Owners Corporation was set up with adequate lighting ensuring that at night, residents and visitors could clearly see their path ahead when traversing the common property. Given that this has now failed, yes, the owners corporation does have a duty of care over the common property and based on your situation, it does sound hazardous. Not to mention that the owners corporation is responsible for maintaining and repairing common property assets as required to keep the scheme in good order.
If an injury occurs, the owners corporation will potentially be found liable for the failure to maintain common property and ensure safe passage across common property.
That being said, it is also likely that there will be a question raised as to why, knowing the common property is in complete darkness, an individual would not make use of a torch as an aid to navigate the common property at night. Duty of care is something that we all share. For example, you wouldn’t drive down a long driveway at night with your headlights off. A duty of care for ourselves and others is a shared duty. Whilst the owners corporation is the custodian of the common property, an individual, particularly an owner, should also take care for their own safety.
We are aware of litigation cases where a visitor of a scheme (an owner’s mother) sued the owners corporation after an injury on common property and the courts awarded a portion of the liability to the lot owner who was the daughter of the victim making the claim. Proving that owners too have a shared liability on common property for themselves and others.
Your suggestion of temporary lighting is a fantastic idea and would be considered a reasonable step the owners corporation can take to mitigate the hazard until a permanent solution can be achieved. Short of this suggestion being made, there is not a lot else as an owner you can do until lighting is installed, other than trying to ensure your own safety at night by travelling with a torch, luckily, most of our phones these days have one.
Dakota Panetta
Solutions in Engineering
E: dakotap@solutionsinengineering.com
P: 1300 136 036
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