The safety of a strata scheme’s premises for owners, occupiers and visitors should be one of the primary concerns of an owners corporation. If an owner, occupier or visitor is killed or injured on common property, the owners corporation could be held liable and would need to raise significant levies to cover the costs of any uninsured amount.
A defective balustrade is one of the biggest risks to safety on common property, and as such, it is of great importance that an owners corporation ensures that any balustrades in their scheme are structurally sound and comply with the relevant building standards. The current Building Code of Australia (BCA) requires that balustrades meet a minimum height of 1 metre (1000mm) and all newly constructed strata plans must adhere to this requirement. However, previous building standards contained less stringent requirements for balustrades resulting in confusion about whether all balustrades need to comply with the current standards in order to avoid potential liability for the injury or death of owners, occupiers and visitors.
What if our balustrade complied with the relevant standard when it was built, but does not comply with the current BCA?
Retrospectivity of the BCA:
It is well settled law that safety standards for building design, such as the BCA, do not act retrospectively1. This was confirmed in the recent case Hutch v Ryan2 where a resident tried to sue the owner of a premises after falling over a balustrade several meters onto the floor below. In determining whether the owner had breached the duty of care owed to the resident, the essential question was whether the owner knew or ought to have known that the balustrade was dangerous and failed to take precautions to address the danger. Although the balustrade did not comply with the current BCA, the fact that it complied with the relevant standard at the time of its construction was an important factor in concluding that the owner was not aware of the risk, absolving any liability. Therefore, as a general rule, if your balustrade complied with the relevant standard when it was built, there is no need to upgrade it in order to comply with the current BCA.
Circumstances that may require a balustrade to be upgraded:
The greater the foreseeability of risk and probability of harm caused by a defective balustrade, the higher the obligation on the owners corporation to take precautions to address the risk. For example, it is implicit from the decision of Hutch v Ryan that if an owners corporation was aware that a no longer compliant balustrade was also dangerous, they could be liable for any resulting injury3. Such knowledge may be imputed from:
- building reports highlighting the safety issues of a balustrade;
- various safety incidents caused by a defect in the balustrade, indicating to the owners corporation that the balustrade is unsafe; or
- the presence of young children living in the scheme, increasing likelihood of potential accidents.
In these circumstances, the owners corporation should rectify the balustrade, and any new works will need to comply with the current BCA standards.
What if our balustrade does not comply with either the relevant standard when it was built or the current BCA?
If your balustrade did not comply with the relevant building standards when it was constructed it is likely that the owners corporation will be liable for any resulting injury or death caused by the balustrade. This was demonstrated in the decision of Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) (No 2)4 where the plaintiff was awarded damages for injuries suffered after falling over a balustrade that was lower than the height required at the time of construction (ie the balustrade rail was 933.5mm in height, some 66.5mm below the required height of 1000mm). It was held that owners and builders of apartment complexes owe a duty of care to building users and it is their responsibility to ensure all areas of the building are in compliance with the relevant building standards.
Therefore, owners corporations should check whether their balustrades comply with the relevant building standards at the time the building was built, and immediately undertake rectification works if the balustrade is found to be non-compliant.
1 Jones v Bartlett  HCA 56 ; O’Meara v Australian National University  ACTSC 115 -.
2  WADC 16.
3 Ibid -.
4  VSC 279.
Current as at 1 November 2015. The above information is not, and is not intended to be, legal advice. It is a summary and should not be treated as a comprehensive review of the applicable legislation.