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What can we do if our office landlord is failing to meet their duty of care?

Q: Recently, we had an incident report submitted by an employee based at an office facility we lease in northern Sydney. The incident related to a near miss with a pedestrian in the office carpark. Prior to this incident, our company had raised issues with the property managers about the parking area and what was assessed to be inadequate provisions for safe pedestrian and vehicle access. We share the office facility and carpark with other lessees.

To date, the response from the property manager has been inadequate. We wish to escalate the issue, and to do that we want to confirm the responsibilities and duty of care of these parties.

The Traffic Management chapter of the Handbook is written principally around the scenario where the PCBU has complete control of the area in question. Can you provide some clarity and additional information on this topic?

A: The starting point is that you, as the employer, have a statutory duty to ensure safety, so far as reasonably practicable, where the primary consideration is the level of control that your company exercises over the office facility (place of work) – in this case, the carpark.

Similarly, the landlord has the same obligation to those that use the carpark to ensure that it is safe. If the circumstances of the incident were that your employee was driving and almost struck a pedestrian because of poor traffic management (or the other way around), then the landlord would have a duty to assess whether they can implement any controls to eliminate that risk of injury.

If the landlord is not taking action, you could inform the landlord that you will be seeking to involve SafeWork NSW in the issue and then invite an inspector to attend the site. In the interim, you may also wish to advise your employees how to access and use the carpark safely, in light of your assessment as to the cause of the incident.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Traffic management for current advice.

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