In Allen v Strata Plan 54664 an owners corporation was ordered to pay over $150,000 in damages to Mrs Allen, an elderly lot owner who tripped over a rubber mat in a common property lift.
The owners corporation had put in place a code of conduct which required certain rules to be followed when the lift was being used by removalists. In breach of the code of conduct, the moving was unsupervised by the building’s caretaker and the rubber mat was left in the lift for more than a day and a half after moving activities had ceased. Mrs Allen, on returning to her apartment on a Sunday evening, suffered severe injuries after tripping over the mat.
An expert report found that the following were contributing factors to Mrs Allen’s injuries:
- The mat placed on the floor of the lift on top of carpet formed an unstable surface;
- The leading edge of the mat was raised above the floor of the lift, forming a tripping hazard;
- The placing of the lights meant there was insufficient light to detect the presence of a hazard.
The risk could easily and cheaply have been remedied by cutting the rubber mat to sit neatly over the floor of the lift, and using gaffer tape to secure the edge of the mat across the lift door opening.
During the proceedings the building’s caretaker admitted that the mat was kept tightly rolled-up when not in use, leading to the possibility that the edges would be raised when placed on the floor of the lift. The caretaker also admitted that since Mrs Allen’s accident, the mat had in fact been taped down to the floor of the lift.
The Court found that the owners corporation owed a duty to Mrs Allen to contain the known potential risk of injury caused by removalists using the lift. Various minutes of meetings of the owners corporation showed that there were longstanding problems with removalists and deliveries in the building, and that the code of conduct had been introduced for that reason. Further, the owners corporation knew that there were a number of aged persons in the building who required special care.
In order to perform its duty, the owners corporation should have ensured compliance with its code of conduct and checked the adequacy of the mat. The building’s caretaker, having left the premises on Saturday while the move was in progress, was aware that the code of conduct was being breached. An executive committee member had used the lift multiple times throughout the weekend and was also aware of the breach.
The owners corporation submitted that there had been a long and incident-free use of the mat. This submission was criticised by the judge, who noted that there was no reference to Mrs Allen’s accident in any records of the owners corporation which were produced under subpoena.
Mrs Allen’s accident would not have occurred had the owners corporation’s code of conduct been followed. Nor would it have occurred had the subsequently adopted method of taping the mat to the floor been used. Mrs Allen was making a journey home she had made thousands of times. It would not have occurred to a reasonable person in her position that it was necessary to inspect the mat and consider how to stand on it without tripping.
As a result of her injuries Mrs Allen became unable to perform a large number of household tasks whereas previously she was largely independent. Despite the fact she was 88 at the time of the accident, the owners corporation was ordered to pay over $150,000 in damages, together with Mrs Allen’s legal costs.
It is important to note that in this case, the existence of a code of conduct was insufficient to discharge the owners corporation’s duty of care to contain the known risk of potential injury. An owners corporation must ensure that any code of conduct or by-laws are being followed by residents and known breaches enforced by the building manager and committee. This obligation arguably extends to a strata manager who is aware of the breaches, but does nothing to attempt to remedy them.
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