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 credit’.

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 [2016] NSWDC 217)

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