Certified but who is liable?

Discussion in 'Legal Issues' started by PaulPaul, 26th May, 2020.

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  1. PaulPaul

    PaulPaul New Member

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    Hi guys,

    I thought this would be an interesting question for many of you to discuss...

    Scenario:

    . Renovation completes and final Occupancy Certificate is provided.
    . Sometime later, a fire happens and spreads to neighboring properties which are damaged.
    . It's found that part of the renovation actually didn't comply with BCA (eg. part of build within 900mm of boundary and required fire seperation conditions not originally picked up by certifier/builder).
    . Owner has home and contents insurance.

    Who is liable?
    What should owner have done?
     
  2. JDM

    JDM Well-Known Member

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    What caused the fire? Good chance it would end up being proportionate liability for various parties if there are multiple factors that caused the event (non-compliant works, authority failing to issue appropriate conditions, arson, electrical fault etc).
     
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  3. Marg4000

    Marg4000 Well-Known Member

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    Sounds like a question on an assignment!
    Interesting first post.......
     
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  4. PaulPaul

    PaulPaul New Member

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    Say the fire started in the house somewhere.

    It's actually a scenario I'm trying to avoid at the moment. Should I rely on the fact that it has been certified and sleep happy knowing there's no risk to me... Or is there still risk to me, and to have anoyhet 3rd party (eg. Fire Inspector) to certify.

    The overarching question is; can you rely on builder and certifier, even if the work ends up being defective?
     
  5. PaulPaul

    PaulPaul New Member

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    Would one of those parties be the owner?

    Can you rely on competency of builder/certifier, or would owner be personally liable in this scenario?
     
  6. jrc

    jrc Well-Known Member

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    You have entered into a minefield. A forum like this is not the appropriate place to ask for questions about liability. Suggest the prudent thing is to retrofit measures that would provide equivalent fire safety results and get this signed off by the Council. This might depending on the class of building require fire sprinklers.

    I have been in this situation where a Council two years after it had issued an occupancy certificate determined that the cladding was not compliant and issued fire orders. Then there was an issue whether there was sufficient separation.

    You will probably need an independent building certifier who is familiar with fire safety standards, a fire engineer to determine what will lessen the risk of fire spread, lawyers etc. Ka-Ching! Ka-Ching!

    Your builder will say the occupancy certificate has been issued and it is not his problem. The certifier will vanish. You may have an issue with your insurer and need to disclose to them. Did the builder design and construct or just construct?

    Is the building on the adjoining lot more than 900mm from your common boundary eg driveway? If so maybe a masonry fence would be sufficient but I don't know which is why you need experts on building and fire safety. Have you got surveyed boundaries?
     
  7. qak

    qak Well-Known Member

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    I think the owner could potentially have more liability if they were *aware* there was a fire risk which they did not mitigate.
     
  8. Marg4000

    Marg4000 Well-Known Member

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    OK, you have a problem.

    If you know about a problem and do nothing, then insurance probably won’t cover you in the event of an incident.

    Fire separation seems to be the big issue, and should be followed up with someone with expert knowledge in that arena, and any necessary remedial work carried out.

    And It may come back to haunt you when one day you come to sell as a competent building inspection may detect the fault.

    Don’t just ignore it. As owner you bear responsibility.
     
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  9. jrc

    jrc Well-Known Member

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  10. Antoni0

    Antoni0 Well-Known Member

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    Unless it's something really obvious like incorrectly or unlawful stored highly flammable fuels, your average Joe Blow wouldn't have the expertise to challenge an industry expert like a compliancing officer, their job is to sign off on work that meets the standard at the time of inspection, as someone said above you would need to engage with experts in the industry to prove them wrong and it will usually come at a big cost. A compliance officer has a responsibility to comply with the law, otherwise what's the point of having them ?

    It's an expensive can of worms if a fire comes to fruition and insurance doesn't want to pay out but I can't see how they can get out of it because it's not up to the insured to know what the building standards are and secondly they're usually not qualified to do so.
     
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  11. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    What would happen if the next door neighbour's insurance company would be the one that steps into their shoes and start suing. They would go for all potential entities that would be liable probably, including the owner and the certifier.
     
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  12. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    What does your solicitor suggest regarding exploring liability and professional negligence that seems to be a contributing factor to loss ? Defects liabilitiy periods can be short in the construction game. A joke really. BUT... You may have 6 years for a major defect. Building defect in NSW | How to take legal action for construction defects eg Opal and other projects. And certifiers are being smashed over these.
     
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  13. Stoffo

    Stoffo Well-Known Member

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    Interesting, but kinda piece of sting question.
    Went thru this with certification of steel supporting stucture after internal wall removal.
    Basically no liability :p
    As an owner builder/renovator liability should fall to us for structural defect, or the certifying engineers, and possibly the fabricator/installer, but still inspected and signed off by the engineer !
    So, in this case a fire could/would have occurred and spread thru various door openings regardless V's the new open plan (renovation).
    So liablity is more likely to lie with the actual "cause" of the fire, and not with the occupancy certification, or the changes made.
    *unless as part of the changes electrical changes caused the fire (sue electrician) or the installation of a gas heater/wood fire as part of the renovation caused the fire, this also would refer back to the installers works and insurance.
     
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  14. Stoffo

    Stoffo Well-Known Member

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    In a nut shell, go buy a fire proof safe or store all documents and receipts in the cloud/off site so should the worst occur you have documentation to show your insurer.
    You get reimbursed and the insurer chases the responsible party for all costs :cool:
     
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  15. PaulPaul

    PaulPaul New Member

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    That's the million dollar question; is the owner liable if they were unaware but certified?

    If so, it means that anyone doing renovation can't rely on certification but needs to know BCA themselves. It seems daft... and scary.

    I wonder how many owners are in a similar scenario and are unaware there is risk of lawsuits even with full certification.
     
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  16. Marg4000

    Marg4000 Well-Known Member

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    Is this whole scenario a hypothetical question, or are you aware of an actual problem?
     
  17. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    You can sue anyone for anything in Australia. But that doesn't mean you will win. If someone has lost out because of your negligence you will generally have to compensate them to get them back to the same position before you shafted them.
     
  18. Scott No Mates

    Scott No Mates Well-Known Member

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    A building company and an architect were sued several years ago for a structure that they had built & designed some 40-50 years prior. They were listed as co-defendants, with the owner, simply because they were still in business.

    The proponent was injured when a building component failed leaving a few injuries and one dead.
    The people involved included a nurse, 2 undertakers and the deceased already in the coffin

    This was a set of external timber stairs, exposed to the weather & never maintained by the building owner.

    The judge found that the stairs were designed and constructed according to the building practices at the time (before Dynabolts/Loxins were invented), neither the builder or designer were liable as they weren't responsible for the maintenance of the structure and the costs and compensation fell to the building owner.
     
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  19. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

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    Its enough to make you want to invest in shares.
     
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