Non-Compliance with ABS

What should Body Corporate do?

53858-OMB-ADIntroduction

There are a myriad of obligations placed on a Body Corporate under legislation most importantly the obligation to maintain in good condition the common property.

What is “Common Property

All the property and land, that is part of the scheme but does not form part of any individual lot, is referred to as the ‘common property.’

Personal Injury and the Body Corporate’s LiabilityWho’s Responsible? 

The obligation imposed under the statutory framework creates, at common law, a duty of care upon the Body Corporate to prevent injury of persons on the common property.

Importantly, there is not a duty to ensure absolute safety of all persons, but one to take reasonable care to avoid a foreseeable risk of injury.

If the risk of injury arises because part of the common property is non-compliant with the Australian Building Standards, which were not in force at the time of construction, then the Body Corporate will not be deemed liable solely for a failure to comply with the Australian Building Standards (“ABS”).

The leading authority is Jones v Bartlett.1 In that case the Plaintiff was the son of the tenants of a residential property owned by the Defendant, who had been living on the property with his parents for a period of four months before walking through a glass door (thinking it was open) and suffering injuries.

Upon inspection, the glass door appeared to be in good repair and operating normally and It complied with building standards and regulations applicable at the time of construction.

The current ABS, demanded the glass be a thickness of 10 mm, or toughened safety glass, laminated glass or safety organic coated glass. However, the standard at the time of construction required a thickness of only 4 mm of annealed glass.

The Plaintiff alleged that the Defendant had failed to replaced the 4mm annealed glass door with glass complying with the safety standards that would have applied had the building been newly constructed or if the glass door recently replaced by the owners.

There was no evidence to suggest that the owner knew that the glass was annealed, that they knew of the different types of glass, nor that they were aware of the contemporary Australian Standards.

Importantly, the door was compliant with the safety standards applicable at the date of construction, it was irrelevant that it did not meet the more rigorous standards imposed later.

Notably, Gleeson CJ stated:

“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality”

Later cases have relied upon Jones v Bartlett as authority for the proposition that premises are to be judged by the safety standards in existence at the date of construction and that safety standards are not retrospectively applied to a building.

In Commonwealth of Australia v O’Callaghan, the Plaintiff pushed his hands through the glass doors at the Commonwealth Employment Service (‘CES’) while he was there to claim social security benefits. He suffered injuries and sued the Defendant in negligence as occupier of the premises. Kennedy J considered that the Defendant was not in breach, noting that there is no such thing as absolute safety. In response to an argument that the glass should have been replaced to comply with Australian Standards, he said:

“Acknowledging that the Australian standards do not pre-empt the common law, there is no evidence that the glass doors did not comply with the standard when the building was constructed.”

In Smith v Body Corporate for Professional Suites Community Title Scheme 14487, the Plaintiff fell through glass in the foyer of a building whilst attempting to enter the building with her swipe card. She suffered injuries and alleged negligence on behalf of the Body Corporate for a failure to arrange an audit of the glass doors as to whether they complied with the prevailing Australian Standards.

The building was constructed in 1971.

The glass wall was made of 6mm thick annealed glass. This complied with the relevant standard when the building was built in 1971. In summary, the trial judge held that due to the fact that the glass was compliant with the standard at the relevant time (1971) and the Body Corporate confirmed that it had not conducted any safety audit of the glass in its entry way or foyer between 1971 and December 2001(the date the accident occurred), the Body Corporate was not negligent.

Two judges (in the Court of Appeal) considered and agreed with the trial judge because:

  1. The degree of risk of an accident happening in this case was extremely low (ie, about 5,000 persons used the foyer every year without incident).
  2. The glass doors were open during the day. Due to the doors being open, invitees could not bump into the side glass panels because they were covered by the doors.  In this case, the doors were closed at night but (typically) persons using their swipe card would not be near the side glass panel (which broke).
  3. There had been no incident or difficulty with the glass panels for 30 years.
  4. There was no evidence that the Body Corporate knew or ought to have known of the
    propensity of the glass to break.
  5. During renovation of the foyer which occurred in 2001, there was no suggestion in the
    architect’s specification that the glass in the side panels was of a kind which was more likely than other kinds of glass to injure a person if they fell against it.

When can the Body Corporate be found liable?

In Taylor v The Owners Strata Plan 11564, a defective shop awning fell on top of person, fatally wounding them. The Body Corporate was aware of the defect, but had failed to take any action to rectify the defect and were subsequently found liable for the accident.

In Brown v OC201532U, the Plaintiff was injured while attempting to climb over a common property fence and gate which was not functioning at the time. The Body Corporate had knowledge that the rear fence and gate was in disrepair and not functioning, but had failed to rectify the damage. The Plaintiff was awarded $600,000.00 in damages plus legal costs.

Conclusion

There are a multitude of factors that the Court will look to in determining liability and, of course, each case turns upon its own facts.

Non-compliance with Australian Standards does not deem the common property defective and nor does it create risk of injury in and of itself, which liability may be found. However, a Body Corporate should not take comfort in the fact that their building complied with the applicable Australian Standard at the time of construction, as mere compliance will not absolve a Body Corporate of future liability.

Each component of a building i.e. hand railing, stairs, roof, floors and doors should be individually assessed for any foreseeable risk of injury and/or harm it presents to a person.

A Body Corporate should seek to rectify any defect that it has knowledge of, and which is likely to cause a foreseeable risk of injury or harm to an owner or invitee of common property.