With the COVID-19 Public Health Orders cementing a place in our daily lives, we look at whether Owners Corporations should implement similar ruling within communal areas of their complexes.

We have already seen social distancing measures in and around common property such as stairwells and lifts, but what about other recreational facilities such as a pool, gym or cinema?

There are two key issues; the first, is whether the Public Health Orders have a stance in an Owners Corporation and; the second is, whether an Owners Corporation would be covered in the event of damage or injury under common law negligence and insurance.

Is common area considered as a public place?

The most recent Order ‘’COVID-19 Restrictions on Gathering and Movement’ that came into effect on 31 March 2020 was issued for public health reason. This Order restricts people from leaving their place of residence without a ‘reasonable excuse’. There are a handful of ‘reasonable excuses’ which include obtaining food or medical treatment, travel for work or education (where this cannot be done at home) and for exercise. Whilst the Order also restricts gatherings “in a public place” of more than two people, there are limited exceptions.

The Order requires certain premises to be closed to “members of the public”. Relevantly, for Owners Corporations these premises include:

  • “recreation facilities (indoor)” – which is defined to include indoor pools, spas, gyms and other indoor areas used for indoor recreation “whether or not operated for the purposes of gain”,
  • “any outdoor playground equipment in a public place” and
  • “any outdoor gymnasium equipment in a public place”.

On the flip side, another issue comes down to common law negligence and insurance. For example; if an Owners Corporation decided to keep its recreation facilities open (on the basis that it believed it was not subject to the Order as it was a private space used by its members) then it leaves itself open to claims in negligence. The key reason that the Order was issued was that COVID-19 is extremely contagious and potentially fatal. The Owners Corporation would have significant difficulty arguing that it did not know these facts.

Claiming to not know these simple facts would require the members of the scheme to have not listened to any form of news and to have not spoken to anyone outside of the scheme. It means that if a person contracts coronavirus, uses that area and unwittingly infects others in the scheme that the scheme has left itself open to a claim it contributed to the person catching COVID-19 by ignoring the risks and knowingly allowing the use of the area. Given that many insurers have been quick to bring out their pandemic clauses, the Owners Corporation may not be covered in this instance.

Some Lot Owners belief is that the common property of an Owners Corporation is not a public place and that it is not open to members of the public. The dispute over is it a public or a private space has been raised, but it has not been raised in the context of a Public Health Order. However, the ‘Restrictions on Gathering and Movement’ refers to the ‘Summary Offences Act 1988’ when referencing the definition of a public place. Under the ‘Summary Offences Act 1988’ a public place is defined as a building or structure and any part of that.

Summary

As a Public Health Order is characterised as the ultimate form of beneficial legislation, its whole purpose is aimed at keeping people safe, and therefore should be interpreted as widely as possible. For these reasons, and on the basis of simple common sense and a desire to assist the community at large, Owners Corporations should temporarily close down any communal recreation facilities. Together we can do our bit in reducing the spread of COVID-19. We note that this information is not intended as legal advice. If your scheme is affected, or in the case that you have further queries surrounding COVD-19 you should seek legal advice.

COVID-19 Lifespan on surfaces

  • Air: 3 hours, includes moisture from coughs/sneezes, fog, dust and medical gas.
  • Non-Porous Surfaces: 4+ days, includes doorknobs, elevator buttons, handrails and light switches.
  • Plastic: 2-3 days, includes bottles, plastic bags and containers.
  • Copper: 4 hours, includes tapes and draw handles.
  • Cardboard: 24 hours, includes packages and mail unlikely to transmit COVID-10.
  • Glass: 9 days, includes mobile phones.

Safety measures

You can do your bit to reduce the spread of COVID-19 by following these simple tips:

  • Avoid close contact with others
  • Avoid touching your eyes, nose or mouth
  • Stay home where possible, except to seek medical care
  • Cover your cough or sneeze with a tissue, then discard the tissue in the trash
  • Clean and disinfect frequently touched objects and surfaces
  • Wash your hands often, using soap and water for at least 20 seconds

 

For further information on COVID-19, refer to the Centers for Disease Control and Prevention, and the Australian Government Department of Health.