On St Valentine’s weekend, a 2020 Honda Grom 125cc Motorbike rode with gay abandon into my mutistory unit block, through an unlocked gate, door and into the elevator.
36 Hours later, it rode past 10 units on the ground floor. Gross Negligence. In Miles v Ejam Nominees Pty Ltd (Residential Tenancies) [2017] VCAT 203 Feb 2017
the Member presiding said;
"In relation to the rear gate, I am not satisfied that it falls within the definition of “external door”. A gate to premises may, in some circumstances, not be required to be lockable to gain ready access to the front or rear yard but an external door, in contrast, is required to be lockable.
1 Like
Does the gate have a lock?
I think you have answered your own question. It is gross negligence of the motorbike rider and not the landlord. Any reasonable (and sane) person knows not to ride a motorbike…through a building and into a elevator.
1 Like
A likely outcome but not assured?
VCAT considers each case on it’s individual merits and circumstances. EG How the bike and rider gained entry may in part be due to a failing of the Owners Corporation or one of their service providers.
It could be as stated, but only once VCAT made that determination. That assumes there is sufficient evidence available for the hearing. If the bike rider is neither a tenant or owner what would the penalty amount to?
P.S.
Welcome to the community @DJ.Scotty.
Can we assume you are just sharing the event details?
If you have concerns about what happened it would be best to talk with your Owners Corporation or Agent if a tenant, and optionally VCAT if it needs further action. Victorian?
1 Like
Yet if there is no ‘arrest’ and successful prosecution whether the rider is sane or responsible is irrelevant to the issue, and the rider could and probably would do it again. That the rider did it once reflects his concern (disdain!) for others.
Depending, it may be possible there could be a complaint lodged for trespass or similar.
3 Likes
I beg to differ. If say a motorbike entered a shopping centre and drove around terrorising customers, it isn’t the centre managers which would be arrested or fined…but the bike rider. Most shopping centre could easily be accessed by a motorbike.
Assuming that the landlord has full responsibility indicates that no-one has responsibility for one’s own actions, if they can find another party which they can blame.
The first question I asked if the gate (or door) have a lock. If it has a lock or can be closed to prevent a motorbike entering the premises, then the motorbike rider knowingly entered the premises where a motorbike can’t enter. It is also common knowledge that motorbikes don’t go into residential elevators/lifts.
If one assumes the landlord is responsible, then we need to accept that taking a motorbike into a residential dwelling and elevator and riding around potentially in corridors is acceptable behaviour and therefore can occur so long there aren’t signs or locked gates/doors. I am unsure of anyone (reasonable person) which would think this was the case.
Edit: If a motorbike was ridden in such a manner, the police should have been called to take action. There are a number of options for police to take action against the rider, such as dangerous use of a vehicle, hooning etc.
1 Like
The Centre Managers indeed could be fined by Workplace Health and Safety in that they didn’t have effective measures to deal with such an incident, this would depend on their policies, staff and security measures or that they didn’t implement the counter measures appropriately. They could also be sued by patrons for failing to provide a safe environment…and this is the reason they have insurance to cover such events. They may seek restitution from the offender and if the offender had Insurance this might help decide what action a Centre might take.
No one does not mean the other, a Landlord has a duty of care that can be or indeed is separate to the Rider committing a dangerous act. Making a building safe, having security so that offenders potentially can be identified, putting up warning and advice signs that prohibit certain behaviours in common areas or that may affect others is part of a management responsibility. The Owner/manager in the case of the bike rider has to take reasonable action to prevent or reduce the likelihood of such an event, if one occurs they need to take reasonable action to ensure that the offender if they can be identified is dealt with, they also need to make clear what isn’t acceptable behaviour, and take reasonable steps to stop a recurrence. Potentially negligent if they don’t take reasonable steps. What is reasonable would probably differ on each premises but some actions would be common to all.
1 Like
This is also not the case, if there is a unlawful act, then it isn’t the responsibility of the centre management. Otherwise they would be responsible for shoplifting, muggings and such like that occurs on their properties.
The centre management may do things after an incident to protect reputation, but not because of WPH&S.
I have been involved with a case in Queensland where WPH&S tried to pin a death on a company because they didn’t have vandal proof fencing (which may have prevented entry which unltimately led to a death)…eventhough the person cut a hole in a chain and barb wire fence to enter a property…the court through it out on the basis that a reasonable person would know that the physical action was unacceptable and unlawful. The principles in a motorbike in a lift are no different.
1 Like
The management took reasonable steps, you can’t stop all activity but you must take reasonable steps. The person took steps to avoid reasonable prevention (cutting a hole through wire including barbed wire), I agree they couldn’t be held responsible, but if they had no fence? The Court was probably looking at what was reasonable prevention or discouragement.
If reasonable steps to ensure public safety are not taken I think a business would be held to be negligent. If a lift is used to move people and goods then until advised otherwise a motorbike might indeed be able to be taken in the lift, ridden in is probably not sensible but until prohibited it is most likely legal.
1 Like
It is interesting and our client knew that the court case was a test case which could have far reaching implications.
The no fence scenario was also raised as it occurs with many rural properties (and government owned lands such as reserves and national parks). While it wasn’t part of the ruling, it was discussed in court that a property owner can’t be responsible for a person entering the property causing death, where a reasonable entry wouldn’t be expected (examples used were a car driven knowingly off-road over a paddock and crashing or a motorbike in a forestry area/national park and driving off a cliff). These were discussed as part of the reasonableness of the action of the WPH&S case. If the court rules that the property owner was responsible in all cases, then this may lead to a precedent where every property would need to be fenced such to prevent entry to ensure that property owner was not responsible. If it was the case, I expect it would be a legal and insurance nightmare.
At the end of the day it comes down to a reasonable person test. If a person is doing something in a place where it could be reasonably expected not to shouldn’t occur (e.g. riding a motorbike into a elevator and potentially through corridors in a buildings), then the person carrying out the action is responsible. If the person is doing something in a place where it is expect that the action could occur (say riding a motorbike in a carpark and falling down a manhole which was left uncovered by a plumber), then then responsibility is transferrable.
2 Likes
Being only a little argumentative for the ‘test case’ posted, what if there is only nuisance, no injury or damage? What is the rider responsible for? It would seem ridiculous to think each building had to have a ‘no riding running motorcycles’ sign posted, yet in these days the law looks at the law more than common sense.
3 Likes
We are discussing a multi story unit block.
Importantly in the common areas the Owners Corporation has responsibilities. It may have a Strata Manager, and even an on-site Manager.
The control or restriction of access and how those areas are used is also their responsibility. I’m not a lawyer. Drawing conclusions from other instances to say definitively what might be the legal situation or potential for offences or actions is not possible. None of us know all the facts and circumstances.
The unit block was provided with security gates and or doors. The Owners Corporation will have in place commitments as to how these are managed and signed. Did the bike rider pass them with or without legal permission! We don’t know the answers to any of that. Once within it is private property. The extent of the law in this instance is a judgement of the behaviour of the rider, any bylaws or regulations in place by the OC, and whether the rider was a guest, tenant, owner or legally proven to be trespassing.
‘Gay abandon’ in the view of one might not constitute a hazardous or dangerous behaviour. A lack of appropriate signage, warnings and working access restrictions may negate trespass. Assumes the rider was not a tenant, owner or invited visitor.
It seems a long way removed from a case involving a coronial or criminal inquiry to a fatality resulting from a forced entry, per @phb.
P.S.
Anyone with an appointment to a BC/OC who has had to respond to illegal parking within a unit complex will understand it’s not that simple. More difficult if it’s a tenant or owner.
I could also relate personal experiences with neighbourly trespass and inappropriate behaviour on my own property, police support as backup. The requirements for evidence and proof permission was not given are judged independent of reasonable behaviour or expectations.
3 Likes
What if people took their e-scooters on the lift to their apartment? or their pushbike (and they rode them in and rode them in the corridor) what difference is a motorbike or a moped?
Establishment of acceptable and or prohibited actions by signage or similar would be seen to be reasonable steps in public areas of buildings, why do they need car barriers at shopping centres to stop people driving up broad pathways? Because people don’t always think what is safe, appropriate or not.
3 Likes
I’ll add the word ‘running or riding while running’…
2 Likes
Under the National Road Rules, escooters are classed as wheeled recreational vehicles, bicycles as bicycles, and motorbikes/motorised mopeds as road vehicle. The rules which apply to each one while have many common aspects, there are also many uncommon aspects. These uncommon aspects generally relate to the expected use of the device (what a reasonable person would possibly expect).
That’s correct, but both are private land and not subject to usual public land requirements (such as roads, footpaths etc. The death example is pertinent as it relates to use of an area (private land) which a reasonable person could not reasonably expect. No different to a lift. If the lift failed because of the weight of the bike or the bike rider was badly injured for bumping into a door handle or accidentally falling over balustrading when hit, these aren’t the responsibility of the property manager/owner. It would be amusing for the bike rider to try and take action in such case and demonstrate how it the action could be reasonably be expected within a lift/corridor/apartment building.
Signage is un unreasonable expectation. What type of signage…'Motorbikes prohibited in elevator". What happens if a zoo keeper brings home a baby elephant, should there be a list of 1000s of items which are allowed and prohibited. If one is forgotten, where does one stand. It reminds me of some US companies that started labelling bought hot drinks with warning labels that the contents are hot, or may contain dairy and such like. A reasonable person would expect a hot drink to be hot if they purchased a hot drink…likewise a reasonable person would know that an elevator isn’t for motorbikes, along with elephants, cars and the list goes on.
1 Like
Yet the issue is the rider damaging other people or their property or their amenity, not injuring or killing himself…
2 Likes
The person who was in the bed next to me in the hospital last year told me about an accident he had prior to the infection which hospitalised him.
He was riding home for lunch on his Harley when a grub on a pushbike was riding on the wrong side of the road and collided with him.
The grub ended up in jail as the police found a stolen mobile phone on him as well as other offences.
Never the less, the grub had the temerity to try to claim on the motor bike riders CTP insurance.
Once a grub, always a grub.
Little wonder crime is out of control in North Qld.
1 Like
Welcome to the forum @DJ.Scotty.
You have described two events in relation to the use of a motorbike and claimed it is gross negligence. Inconsiderate, certainly. But gross negligence? On what basis?
You stated that the gate was unlocked, and then cited
without any explanation. Are you suggestion that the gate was an external door as opposed to access to a yard? If so, on what basis are you suggesting this?
Or am I misunderstanding what are you saying?
2 Likes
I checked with Consumer Affairs today. Only external doors are required to be lockable. The issue with the gate, is that it is as wide as a farm gate. Foreseeable that a motorbike would slip through.
1 Like
Thank you @mark_m for raising info in regards to the Owners Corporation (OC).
Some interesting background…
- A tenant (AB) vacated a unit in said building 5 months ago.
- When they left, they gave their key to their motorbike enthusiast neighbour (GX)
- The landlord failed to change ABs locks
- GX took full advantage of use of the unit without the landlord’s consent or permission
- The motorbike was suspected stolen; no insurance cover if it had hit someone
- Because GX was in posession of the unit key from Nov - March, GX is liable for the rent. VCAT can issue an order for GX to pay the landlord the pro rata rent of $2,601
- The motorbike was sold for approx $3K
- Because the transaction took place during a L4 COVID lockdown and involved a gathering in contravention of the Chief Health Officer orders, there are > $8,000 in COVID related fines.
- The parties to the deal are well in the red
1 Like
It appears if this information is correct, there may be more to the background than outlined here. A by-standing party usually would not have detailed knowledge of what you have outlined. Have you been having a long term dispute with your landlord, property manager/OC or other tenants?
2 Likes
