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Risk audits ease legal burden

RECENT court cases have highlighted the need for property owners and property managers to be vigilant in carrying out their duty of care.

While the courts seem to be changing their tact and showing more leniency toward the property owner than previously, the owner must still be able to demonstrate steps were taken to avoid risks to anyone entering the property.

According to Stephen Williams, partner of law firm Freehills, regular risk audits would be a good step to take and can be done in conjunction with the insurer.

“It’s really a case of gauging what is going on in your property and responding accord-ingly,” he said.

Mr Williams said that in light of the recent Jones v Bartlett case, in which the court found in favour of the property owner, property owners were not responsible for everyone that entered their property.

“You are not responsible for indemnifying every person that goes on your property against every injury,” he said.

“You are required to take reasonable precautions. You are not in a position where you have to guarantee safety.

In the Jones v Bartlett case, the plaintiff, Marc Jones, injured himself by putting his knee through an internal glass door in the house. Mr Jones argued that the glass did not meet the Australian Standards at the time of the accident.

However, the court disagreed and found in favour of the defendant.

According to Mr Williams, this marked a turning point in the way courts will look at cases in the future.

“That was really a decision that occupiers can look to, that brought some commonsense back into the equation. Liabilities are being reined in by the courts,” Mr Williams said.

“Whether that continues or not I don’t know, but it certainly seems to be a trend at the moment with a more common-sense approach being taken by the courts.”

The liability of a property owner can depend on a number of factors, including the age of the person who was injured, the nature of the premise and the ability of the person coming onto the premise to appreciate the danger.

Ignorance cannot be a defence for a property owner.

“As a property owner, it’s incumbent on you to make yourself aware of the potential hazards on the property so that you can guard against them,” Mr Williams said.

“I don’t think a property owner being blissfully ignorant is going to be an answer. Ignorance is not going to be a defence. It’s a positive duty, the duty is not created simply by knowledge of a hazard.

“And the use of appropriate risk management measures can help to eliminate or minimise the risk from occurring.

“It’s a very common-sense approach to an everyday problem. It’s not rocket science. In the society we live in it’s something we have to deal with everyday and it’s something which requires a common-sense approach to be taken.”

Burgess Rawson associate director Michael McCormick, who manages a number of properties around Perth, agreed that commonsense was very important when ensuring risk was minimised.

Regularly inspecting the property was also important.

“If the property seems okay, you need to make a record of what was checked. The im-portance of keeping records is very high,” he said.

Mr McCormick thinks life as a property manager has definitely become tougher over the past few years.

“There has been a number of cases which in my opinion should never have got to court,” he said.

“While we have a duty of care, everybody has a duty of care to look after themselves as well. As managing agents we have a strong duty of care to the general public and we are very aware of that.

“If it goes to court, the lawyers will actually use a shot or scatter gun approach. They will go for just about anybody and everybody. So they will go for particular contractors, property mangers and property agents as well as the owners.”

But Mr McCormick acknow-ledges that the courts’ attitude appears to be changing in favour of the property owner.

The Property Council of Australia policy and com-munications officer Geoff Cooper said the organisation was not lobbying to remove some of the duty of care issues which property owners faced.

Instead the Council’s role was to inform and educate its members of the compliance issues, he said. The Property Council is compiling a Code of Practice for property owners and managers. Due out in a few weeks, the code is designed to help property players through the maze of legislation which they need to be aware off.

Another concern that property owners will be watching closely over the next few months is any changes which may occur in relation to Occupational Safety and Health laws and the property owners responsibility to provide a safe work environment. A review of the laws is already under way. Industry sources believe this could be of real concern over the coming years.

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