WA –  Hendry advises that a little known Act of the Western Australian State Parliament can present some significant consequences for building occupiers and landlords should a building occupant be injured or killed whilst within a building under the control of someone else. The Occupiers Liability Act 1985 carries with it several far-reaching obligations for the occupier of property with regard to the safety of persons entering a building, or part, either legally or illegally.

Section 5 of the Occupiers Liability Act states – in part:

‘…the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger…’

Section 9 of the Occupiers Liability Act also states:

‘(1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any person who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises.

(2) Where premises are occupied or used by virtue of a sub-tenancy, subsection (1) shall apply to any landlord who is responsible for the maintenance or repair of the premises comprised in the sub-tenancy.’

Occupiers, landlords and property managers may well ask themselves what standards are set for the maintenance of a building, or part.

Currently the Building Regulations 1989 do not contain any specific requirements governing this matter, however the Regulations do reference the Building Code of Australia (BCA). Section I of that building standard contain specific requirements designed to ensure that a building’s safety measures are maintained ‘…to a standard no less than that which they were originally required to achieve.’ You may ask yourself what constitutes a Safety Measure under the BCA. It is defined as ‘…any measure (including an item of equipment, form of construction or safety strategy) required to ensure the safety of persons using the building.’ Such measures include, but are not limited to, passive fire-resisting building elements and active fire services such as fire sprinkler systems, fire hydrants, fire hose reels and fire extinguishers.

Many people in the industry are asking how to ensure that their liability is acceptably covered and what administrative benchmarks are to be observed. Standards Australia publish a suite of Standards known as AS1851 ‘Maintenance of fire protection systems and equipment’. This Standard sets out requirements for the inspection, testing, preventive maintenance and survey of fire protection systems and equipment.

This Standard is intended to provide a systematic and uniform basis for building owners and managers, regulators, contractors, insurers and others to implement and administer inspection, test, preventive maintenance and survey programs applicable to fire protection systems and equipment. The current version was published in 2005, however the only version nominated in the BCA and being used by one Australian jurisdiction (the Northern Territory) adopts versions ranging from 1981 to 1997.

Until the new WA Building Act is introduced in 2009 which will contain administrative provisions for the maintenance of Essential Safety Measures, it would be wise to utilise this suite of Standards when developing maintenance plans and/or considering engaging service providers to undertake this work.

Any decision to adopt this benchmark Standard could limit and/or reduce risk exposure under this Act. The contents of this Building Act may be viewed on the web-site of the State Law Publisher at www.slp.wa.gov.au