This case note has been taken from the recently published second-edition of a Guide to ACT Strata Law. A physical copy of the full text can be purchased here.
What if a balustrade complied with the relevant standard when it was built, but does not comply with the current BCA?
It is well settled law that safety standards for building design, such as the BCA, do not act retrospectively. This was confirmed in Hutch v Ryan [2015] WADC 16 (20 February 2015) 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, thereby absolving them of any liability. Therefore, as a general rule, if a 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 standard.
However, 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 prevent harm. For example, it is implicit in 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 injury. Such knowledge may be imputed from:
(a) building reports highlighting the safety issues of a balustrade;
(b) various safety incidents caused by a defect in the balustrade, indicating to the owners corporation that the balustrade is unsafe; or
(c) the presence of young children living in the scheme, increasing the 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.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
