The applicant was an occupier of a unit and claimed he had a bike stolen from the common property area under the control and management of the respondent.

The applicant claimed he locked his bike on the bike stand located on the common property because he was unable to secure his bike in the locked cage attached to his unit. There were obstructions that prevented him accessing it which were semi-permanent poles and barriers erected to rectify issues with the building, as well as cars parked inappropriately due to the poles and barriers.

The applicant submitted evidence that his partner had notified the strata manager by email about the difficulties with accessing their locked cage which was acknowledged in a reply email by the strata manager.

The respondent denied any breach of the duty of care owed to the applicant, arguing the complex was subject to an emergency rectification order and therefore required urgent works, as the building would be uninsured if not undertaken. Further, there is insufficient proof of the theft and various undated photos showed the storage cage could be accessed. Further again, the House Rules stated that the area where the bike was stolen from was not claimed to be secure.

The Tribunal found that a body corporate could be sued for negligence in regard to the functions and responsibilities it performs. Determining whether there had been negligence required considering ordinary common law negligence principles and also the the Civil Law (Wrongs) Act 2002 (the Act). The applicant had to establish on the balance of probabilities that he was owed a duty of care, the respondent breached it and that damages resulted.

The Act confirmed that occupiers have a “duty to take all care that is reasonable in the circumstances” to ensure that “anyone” on the premises did not suffer “damage” due to “the state of the premises” or “things done or omitted to be done about the state of the premises”. Section 168 of the Act set out considerations as to whether the duty was discharged. Sections 40 – 47 of the Act were provisions relevant to consideration of whether there was a breach and damages payable. Also, other provisions in the Act were relevant to proving causation and determining the quantum of damages payable for negligence claims.

The Act defined ‘causation’ in a negligence matter including an occupier’s liability claim as follows: “the negligence was a necessary condition of the happening of the harm” and “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused”. The latter section reflects the ‘but for’ test of causation under the common law, and also recognised the principle in common law that there must be a limit to a negligent person’s liability for consequences that flow from a negligent act, or put another way, that the damage could not be too remote from the negligent act.

The key issues in this case were:

(a) had the respondent breached its duty?

(b) was the damage caused by the respondent, or too remote to be payable by the respondent?

(c) if damages were payable, what was the appropriate sum of damages payable in this case, in particular did depreciation apply?

Section 168 of the Act specifies that “anyone on the premises” is owed a duty for the respondent to take reasonable care. As a legal occupant, the applicant had an entitlement to access the locked cage appurtenant to his unit.

The respondent had management and control of the common property for parking, the common property that allows access to the applicant’s locked cage, and also the common property where the bike was stolen. While the rectification order and insurer put the respondent under some pressure to do the rectification works, the rectification order did state that the body corporate must ensure that “all work [is] carried out in a way that prevents injury to people and unintended damage to property”. The parking issues that arose due to the rectification works, which led to the applicant not accessing his locked cage on the day the bike was stolen, were foreseeable, and there should have been a plan to safely manage them, but there was not.

The Tribunal found that the respondent had, or should have had, knowledge of the applicant storing property, such as a bike, in his locked cage. The Tribunal found that the respondent had actual knowledge that, at times, the applicant’s access to the locked cage was not possible due to obstructions. Case law suggested that upon being advised of the issue, a reasonable response by the respondent and its agent would be to inspect the relevant area of the common property to review the situation and consider solutions, but this was not done.

The Tribunal found that the damage was not too remote to be payable and that the respondent caused the damage. In this case, it was clear from the evidence that the applicant’s bike would have been in the applicant’s locked storage cage and not stolen, but for the negligence of the respondent. The issue was whether the second part of the causation test was met, i.e. was the damage too remote, was it appropriate for the scope of the respondent’s liability to extend to the harm so caused?

The respondent referred to the Rules of the complex and contended they defeated the applicant’s claim. The Rules in effect provided a notice to occupiers that the respondent would not accept liability for loss when they chose to park their bike in the stands in the common property area. However, the Tribunal found that the applicant did not choose to park his bike there but parked it there because he had no other options available.

In this case, the applicant’s lack of access to his locked cage was, in part, a result of inappropriate parking by third parties. However, the respondent remained liable because it actually knew that the applicant could not access his locked cage at times due to such parking, and it alone could have managed the common property to prevent inappropriate parking, e.g. by developing a plan and placing signage and barriers to implement the plan, which it failed to do.

The general principle of compensatory damages is to place the person harmed, insofar as money can achieve this, in a position they would have been in had the negligence not occurred.