Not Every Common Property Safety Hazard Needs Fixing

Ridis v Strata Plan 10308 [2005] NSWCA 246

Quick Read

This 2005 NSW Court of Appeal decision is about an older Bellevue Hill strata building’s responsibility and liability for a serious injury when the front door glass shattered. The original front door glass was annealed, rather than safety glass, but was in good condition and the strata building had never been advised there was any danger from it. So, the primary issue was whether a strata building’s common property obligations extended to inspect for safety risks and upgrading the common property to address risks. The 3 judges had different views but ultimately decided by a 2/3 majority that unknown risks did not need addressing with upgrades in strata buildings. So, since the front door glass risk in this strata building was unknown, it did not have to hire an expert to assess the possible danger and to change the glass. It’s a rare situation where Courts have reduced the extent of common property duties for strata buildings and excluded positive obligations to inspect for unknown dangers. But those circumstances are very limited.

Implications

Strata building obligations for common property maintenance, repair and replacement under s 62 are limited.
In general, the obligations are the same as for occupiers under negligence laws.
Safety considerations are an important feature of those obligations.
Common property obligations can include routine monitoring, although the judges did not agree about when they arose.

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Full Report & Case Details

This decision by the NSW Court of Appeal involves an injury claim by a strata resident in a 1930s strata building in Bellevue Hill, NSW.

The injury occurred when the resident was entering the building, put his arm out to stop the door from closing on him, and the glass shattered when his hand hit the glass instead of the door frame; severely lacerating his arm.

The glass in the door was the original annealed glass [not safety glass] installed at building construction. At the time, there were no specific standards for door glass, but by the time of the injury current standards required safety glass as annealed glass was known to shatter into sharp shards on impact.

However, the door and glass were in good condition [and not faulty, the strata building had never made any changes to the door or entry and had never been advised that the door glass was dangerous.

So, the primary issue was whether the strata building’s obligation to maintain, repair and/or replace the common property under s 62 of the Strata Schemes Management Act 1996 [which applied at the time] required it to have replaced the glass with safety glass and, as whether it breached its duty of care to strata residents and visitors.

In making its decision the NSW Court of Appeal considered the repair and maintenance obligations under the Strata Schemes Management Act 1996 and the decisions in Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30- 068 and Lin v Proprietors Strata Plan No 50276 [2004] 11 BPR 21.

But the decision was a majority decision with two judges deciding against a duty of care for different reasons and one judge disagreeing and making the following differing statements and conclusions.

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Keywords

#NSW #NSWCourtofAppeal #repair #maintenance #replacement #duty # injury #negligence #2005 #SSMA1996 #s62