This article is about the duty of care of the strata committee in response to COVID. We provide an update on the NSW New Public Health (COVID-19 Self-Isolation) Order in early September 2021 and what this means for lot owners, committee members and Strata Managers.
Table of Contents:
- QUESTION: Under the current NSW lockdown, can the pest control person spray inside all 81 units if they have all certificates to back them up?
- QUESTION: We have a couple of outside areas that require a contractor to complete, do we need to see their Covid Plan?
- QUESTION: Can the Latest Self-Isolation Public Health Order Send You Into Building Lockdown?
- QUESTION: What is the Duty of Care of the Strata Committee in Response to COVID?
Question: Under the current NSW lockdown, can the pest control person spray inside all 81 units if they have all certificates to back them up?
Answer: Yes. Pest Control is ‘Prescribed Work’.
Yes. Pest Control is ‘Prescribed Work’. The Health website is contradictory and confusing. For example,
Register your travel within NSW, website states
an authorised worker living in a local government area (LGA) of concern and you need to leave your area for work. This includes travelling to another LGA of concern (also known as a ‘workers permit’). Register your travel within NSW
Renovations, repairs, maintenance and cleaning of homes, website states
Local government areas of concern
Who can do the work
- If you live in the local government areas of concern, you can only work in the local government area you live in.
From 28 August, workers entering a local government area of concern to perform this work will need to register for travel. Prescribed work
A person not living in an Area of Concern can enter an Area of Concern if they have a ‘Workers Permit’. Renovations, repairs, maintenance and cleaning of homes
This post appears in Strata News #512.
Question: We have a couple of outside areas that require a contractor to complete, do we need to see their Covid Plan?
Answer: their COVID-19 Plan should form part of their Safe Work Method Statement, and it is appropriate to ask to see that document if you are engaging that contractor.
I believe that their COVID-19 Plan should form part of their Safe Work Method Statement, and it is appropriate to ask to see that document if you are engaging that contractor. You do not have to understand that document, you just have to be satisfied that they have one.
You will find that a lot of contractors will not have a proper COVID-19 Plan, and may just have the Government ‘do you agree with the above statement?’ and if not, why not’ Plan. A proper Plan will have Risk Assessments with appropriate control measures and Action Points. ie sanitise before, during and after work activities, wear masks, use of disposable gloves (use, fold the gloves into themselves and put in a small rubbish bag, dispose of in due course).
As of 29 August 2021 in NSW there is a Health Order in place for a COVID-19 Safety Plan to be completed by businesses that primarily deal directly with the public.
This post appears in Strata News #510.
Question: Can the Latest Self-Isolation Public Health Order Send You Into Building Lockdown?
Public Health (COVID-19 Self-Isolation) Order (No 3) 2021
On September 6, new Health Orders were issued under the Public Health (COVID-19 Self-Isolation) Order (No 3) 2021. These were gazetted on Tuesday 7 September. The Health Orders give the NSW Government the power to lock down entire apartment blocks in NSW when someone in the apartment building tests positive for COVID-19.
Wal Dobrow from COVID-19 Plans joins me to discuss this new Health Order means for you and your building. We spoke with Wal last week and you can watch the session here: COVID-19 Strata Plans webinar.
Public Health (COVID‐19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 ‐ 5 Sep 2021
Note the Health Order above repeals
- From 1 October 2021 ‐ all Stay at Home Areas and all Areas of Concern
- From 11 September 2021 ‐ all Regional Areas
Where can people find out more information?
The best locations for strata specific information are:
- Strata Community Association NSW website
- LookUpStrata website
- Your Strata Property website
- For the relevant Health Orders go to the NSW Legislation website.
Apartment buildings and other shared living spaces poses a greater COVID‐19 threat due to the close proximity living and shared communal areas and facilities, which makes most Strata Schemes COVID‐19 super spreader environments.
If you have all the relevant information to hand, and fail to implement that information, the exercise is ineffective. A good COVID‐19 Safety Plan should set out the specific steps, appropriate control measures and other actions that must be taken.
COVID‐19 Safety Action Plans
A good plan will not only outline a problem but provide direct control measures that can be taken in the form of ‘Action Points’. What most Plans are lacking is direct Action Points that Strata Committees can take to minimise the risk of the transmission of COVID‐19 at their scheme.
Action Points can include designating a Delivery Drop Off Point to reduce the interaction between delivery drivers, common property surfaces and residents and to avoid cross contamination when exchanging food or other items (which breaks safe “social bubbles”). A poor plan will tell you to ‘keep physical distancing in mind when receiving deliveries’, or ask you to just ‘be good’, but fail to provide the actual Steps to take.
SIX COVID‐19 Safety Principles for Strata Properties
Preventative ‐ are actions that are taken to prevent the transmission and spread of COVID‐19
- Social Bubbles ‐ minimise the cross interaction between groups of people
- Physical Distancing ‐ apply density quotients, display signage and posters
- Education, Training, Posters ‐ follow the Plan, display signage, latest information
- Cleaning, Hygiene, Facemasks ‐ always carry, clean, disinfect, provide sanitiser
Re‐active ‐ are actions that are in response to transmission of COVID‐19 at your scheme
- Response Planning, Risk Assessment ‐ Contingency + Notification Plans
- Contact Tracing, Record Keeping ‐ QR Code, up to date strata roll, keep logs
QR Codes are very robust
Require about 45% showing to work
Practical Tip for strata schemes
- Take a photo of the QR Code
- Screenshot, then SMS to yourself
- Allow people to scan from your phone
Try this QR Code!
Civil Liability (Common Law Duty of Care)
The Strata Committee and any other person in the control or management of a property can be sued for negligence under Civil Liability legislation. What a layperson refers to as the ʹCommon Law Duty of Careʹ and statutory obligations under the respective States Civil Liability legislation, and with real estate, it can also be known as Occupiersʹ Liability.
The Owners are always at risk of being sued for negligence if they do not put appropriate control measures in place to eliminate or minimise any potential harm to any person. COVID‐19 presents risks that must be addressed the same as any other risk, ie trip or slip hazard (someone could fall and injure themselves), electric hazard (someone can be burnt or die), material hazard ie asbestos (someone contracts lung cancer, mesothelioma or asbestosis), and the like.
A Court also has to weigh up the probability and likely seriousness of harm, the social utility and the burden of taking precautions against the cost of undertaking measures. Referred to as the ‘time, cost and trouble’.
s5B Civil Liability Act 2002 ‐ General principles
- A person is not negligent in failing to take precautions against a risk of harm unless –
- the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
- the risk was not insignificant, and
- in the circumstances, a reasonable person in the person’s position would have taken those precautions.
- In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
- the probability that the harm would occur if care were not taken,
- the likely seriousness of the harm,
- the burden of taking precautions to avoid the risk of harm,
- the social utility of the activity that creates the risk of harm.
Owners Responsibilities (COVID‐19
It is essential that Owners Corporations obtain a professional COVID‐19 Safety Action Plan that addresses each of the Principles raised earlier.
While you can create your own Plans, many people do not want to take the personal liability or responsibility and prudently engage an independent professional with appropriate Professional Indemnity Insurance.
WHS (Work Health and Safety)
Owners Corporations are exempt from WHS legislation unless they (1) have an employee, or (2) have non‐ residential use.
Strata Managers are not exempt from WHS legislation as they are a Person Conducting a Business of Undertaking (PCBU).
Contractors are not exempt from WHS legislation as they are a PCBU.
Strata Managers are in the “management” of a workplace (they can ask for licensing, insurance, SWMSs, competency, etc)
Contractors are in the “control” of a workplace (place signs, safety barriers, safe work practices, etc)
People working from home are now workplaces and subject to the WHS legislation (adequate light, ergonomic chairs, etc).
WHS Act 2011
20 Duty of PCBU involving management or control of workplaces
- person with management or control of a workplace, in whole or in part, but does not include
- occupier of a residence, unless the residence is occupied for purposes of, or as part of, the conduct of a business or undertaking,
- The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
19 Primary duty of care ‐ A PCBU must ensure,
- .. so far as is reasonably practicable, the health and safety of other persons is not put at risk
- (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
“Other Persons” Responsibilities (COVID‐19) NSW
|Other persons have a “DUTY”, and a failure of that Duty means an Offence of||Fines|
|Category 1 ‐ engages in conduct that exposes a risk of death or serious injury or illness||Indiv (5yrs jail) $381,150|
|without reasonable excuse, with gross negligence, or is reckless as to the risk||Body Corp $3,809,300|
|Category 2 ‐ failure that exposes a risk of death or serious injury or illness||Individual $190,300|
|(no other basis listed)||Body Corp $1,904,650|
|Category 3 ‐ fails to comply with that duty||Individual $63,250|
|(no other basis listed)||Body Corp $634,700|
|“Other persons” includes delivery drivers, contractors forindividual lot owners, visitors|
WHS Act 2011
29 Duties of other persons at the workplace
A person at a workplace (whether or not the person has another duty under this Part) must ‐
- take reasonable care for his or her own health and safety, and
- take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
- comply, so far as the person is reasonably able, with any reasonable instruction that is given by the PCBU to allow compliance with this Act.
Common Sense on Common Property
- Don’t touch buttons with bare fingers
- Avoiding touching your face
- Use the Delivery Drop Off Point
- Use the Density Quotients (persons per area)
- Keep up to date with Health Orders
- Ensure your visitors following safe practices
- Use increased air flow where possible
- Maintain safe social “bubbles”
- Wash hands properly
- Observe COVID‐19 signage
- Wear a face mask
- Use sanitisers
- Avoid face to face interactions
- Limit use of communal areas
Everyone has a duty of care
To ensure that their actions or omissions, do not cause reasonably foreseeable
- harm to another person
- damage to property
- cause someone else to harm another person or damage property
However, there must be some positive reliance upon that person, even if it is just to act reasonably. You must suffer harm before you can sue for negligence.
Steps to take
It is clear that a person in the management or control of a scheme must take actions to minimise and address COVID‐19 Hazards and Risks.
Many people DO NOT want to accept the personal responsibility or liability in creating their own Plans.
Engage a professional ‐ do not undertake a Negative Risk Transfer by providing specialised COVID‐19 and risk advice. Make sure that any advice is covered by COVID‐19 specific Professional Indemnity Insurance.
Implement Control Measures ‐ it is essential that ‘ACTION’ is taken! Reading pages and pages of information but not implementing ‘ACTION Points’, does not minimise COVID‐19 Risks at a scheme, nor cover your Civil Liability common law duty of care.
Periodically review ‐ as COVID‐19 Public Health Orders and Directions are constantly changing, and as new information is released, it is the responsibility of the person in the management or control of a scheme, and all occupants, to ensure that the information and risk management tools (COVID‐19 Safety Action Plan) are up to date.
COVID19 PLANS INCLUDE:
- Property specific QR Code
- PDF Posters pack + Guide
- Must do ‘Actions’
- Contingency Plan
- Notification Plan
- Information + explanations
- Easy to use checklists
- Relevant Health Order extracts
- Risk Assessments
Our property specific COVID‐19 Safety Action Plans are:
Up to 80 Lots $440 inc gst
Over 80 lots $550 inc gst
COVID-19 Plans provide Property Specific COVID‐19 Safety Action Plans for entire Strata Portfolios
- NSW Health COVID-related Legislation – Public Health Orders (6 Sep 2021 6:10pm)
- Public Health (COVID-19 Self-Isolation) Order (No 3) 2021
- Restrictions for Delta Outbreak Health Order (5 Sep 2021 4pm)
- Sanitised COVID-19 Safety Action Plan (yes, pun intended)
- Article on the importance of a proepr COVID-19 Safety Action Plan
This post appears in Strata News #509.
Question: What is the Duty of Care of the Strata Committee in Response to COVID?
What is the Duty of Care of any Strata Committee?
What does this involve in response to COVID safety as a strata plan?
Answer: In regard to COVID-19 the Owners are always at risk of negligence if they do not put appropriate measures in place to eliminate or minimise any potential harm to any person.
What is the Duty of Care of any Strata Committee?
Broadly, it is the Civil Liability for negligence. What a layperson refers to as the ‘common law duty of care’ has been codified under the respective States Civil Liability legislation (see below), and when dealing with real estate it can also be known as Occupiers’ Liability.
Note that the ‘person in the management or control’ can include the Strata Committee, the Strata Manager, contractors, and others, as it is their responsibility to ensure their acts or omissions do not harm any person (or damage property).
To avoid being sued in negligence, a person (in the management or control) has to ensure that they always address three primary principles:
- was the risk foreseeable – which is a risk that the person knew or ought to have known. That is, the Strata Committee (and Strata Managers, and others) cannot plead some sort of ignorance to save themselves from being sued,
- the risk was not insignificant, ie people are injured or property damaged, and
- what precautions a reasonable person (in the management or control) would take in those circumstances.
In addition to the above, the Court also has to weigh up the probability and likely seriousness of harm, the social utility and the burden of taking precautions. Referred to as the ‘time, cost and trouble’. Simply put, we all owe a duty of care to other people, if we breach that duty and caused harm or damage, then we can be sued.
(Similar provisions for Civil Liability in NSW, Tasmania, South Australia, Queensland; and Victoria – Wrongs Act 1956, WA – Civil Liability Act 2002 and the Occupiers’ Liability Act 1985, ACT – Civil Law (Wrongs) Act 2002, NT – Personal Injuries (Liabilities and Damages) Act 2003)
For a Strata Committee a Duty of Care can also include things like, acting with due diligence (up to date knowledge, understanding the hazards and attendant risks, providing resources to minimise risk, addressing risks as they are identified, implementing processes and responding, and ensuring the resources provided have reduced or eliminated those risks).
What does this involve in response to COVID safety as a strata plan?
In regard to COVID-19 the Owners are always at risk of negligence if they do not put appropriate measures in place to eliminate or minimise any potential harm to any person. This has never changed, it is still a hazard that the Owners have to deal with.
COVID-19 is a harmful virus and it is a hazard, with the attendant risk that someone would be injured or suffer harm. In the realm of civil liability it is no different to any other hazard with an attendant risk such as a trip or slip hazard (someone could fall and injure themselves), electric hazard (someone can be burnt or die), material hazard ie asbestos (someone contracts lung cancer, mesothelioma or asbestosis), chemical hazard and the like.
COVID-19 is a risk that is foreseeable and is a risk that is not insignificant (people can die, have scarred lungs for life, or similar organ degradation), and those risks have to be addressed like any other. Appropriate risk assessments and control measures MUST be put in place.
Some of these control measures would include a Contingency Plan (in case the scheme has a positive case event, or is locked down), a Notification Plan (who and how to contact), and Risk Assessments relevant to the scheme. In the case of a Lock Down, plans for dealing with pets, deliveries (food, essential and special items, medication), rubbish, well being (mental and physical health), amongst other things.
To date no State Government generated COVID-19 Plan addresses all of the necessary elements required above. Unfortunately, these types of Plans lull people into a false sense of protection against being sued for negligence.
Simply put, if the Government was doing an effective job in this regard then we would not be in this LockDown situation.
It is essential that Owners Corporations obtain a professional COVID-19 Plan that addresses each of the elements raised above, and ensure that the Plan is covered by Professional Indemnity Insurance.
This post appears in Strata News #504.
Have a question about the Duty of Care of the Strata Committee in Response to COVID or something to add to the article? Leave a comment below.
- NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much
- NAT: Peak Strata Body Calls For Lot Owners To Keep Up Strata Property Maintenance During COVID-19
- NSW Government | NSW Health | COVID-19
Looking for strata information concerning your state? For state-specific strata information, take a look here.
Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.