From a misplaced mat to a $170k lawsuit – the danger of breaching duties of care
By Michael Teys
20 September 2016
Damages of $171,500 plus costs have been awarded against a Mosman
owners corporation [condo corporation] for a breach of its duty of care
to a resident who tripped on a frayed floor mat left in a lift
[elevator] for more than a day after somebody had moved in.
The owners corporation’s duty of care owed to the resident was held to
be a duty including the known potential risk of damage and injury
caused by removalists [movers] using the building’s lift. The
performance of this duty included ensuring compliance with the
building’s code of conduct for moving, checking the adequacy of the mat
used to protect the lift floor and ensuring it was safe for residents
to go to and from their apartments while removals were occurring.
The award of damages here will no doubt be paid by the owners
corporation insurer but will likely increase the building’s future
premiums and excess. But there’s more to money in these cases. The
incident involved a long-term resident of the building who was 88 years
of age. Her injuries were serious and the findings against a member of
the committee and the caretakers was damning to say the least.
The assistant caretaker was criticised for leaving work when the move
was incomplete even though the building rules provided for an extra fee
to be paid for out-of-hours moves.
A member of the executive committee who saw the mat in the lift after
the move but before the accident was criticised for his personal
failure to arrange for the mat to be removed in circumstances when he
was aware from previous incidents that the mat remaining in the lift
constituted a danger to lift users. He was also criticised for not
minuting the accident.
The current caretaker, who at the time was the cleaner and who put the
mat out on the day in question, was found ‘not to be a witness of
The resident that was moving in was found ‘not to be impressive and appeared self-conscious and embarrassed’.
All these people have to continue living and working together and it
won’t be pleasant after what’s happened. The lessons are these; be
careful but if you aren’t then being forthright in dealing with the
consequences will result in everyone being better off.
(Case reference – Allen v SP 54664  NSWDC 217)
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