On several occasions after first leasing a residential property in the NSW suburb of Collaroy in 2005, architect Joanne Gillies had complained to her landlord and the landlord’s managing agent about the structural integrity of her balcony.
On June 15, 2012, four people including Gillies’ daughter and three of her school friends were injured after it gave way. In court, the cause was found to be a deterioration of steel bolts caused by weather and poor maintenance.
Those injured commenced action in the District Court of New South Wales against the owners and their managing agents. The tenant – an architect who was the mother of one of the victims – was not home but nonetheless also sued the owners and agent because of nervous shock.
At first instance, Judge Curtis found that the entire liability for injuries and losses suffered rested with the agent. Whilst the agent had retained various quotes for repair and these had been rejected by the owners, Curtis found that the agent should have gone further and specifically recommended that owners obtain expert advice on the balcony’s structural integrity.
The owners, he found, had discharged their duty owed to the plaintiffs by delegating authority for property management to their agent.
Gillies as tenant, meanwhile, had discharged her obligations to the plaintiffs through her complaints that the balcony was not structurally sound.
On appeal, this was overturned. Instead the Court of Appeal apportioned liability between the agent, owner and tenant on a 50:30:20 basis.
A reasonable person in the owners’ shoes should have expressly instructed the agent to engage an expert to investigate the structural integrity of the balcony, it found. Whilst owners were able to claim contractual indemnity from the agent, the Court found they were not able to completely absolve themselves of their duty of care simply by this delegation and apportioned 30 percent liability to them as a result of contributory negligence.
The tenant, meanwhile, was liable to the tune of 20 percent because of her failure to lock access to the balcony despite knowing about the structural issues.
Sadly, this case – Libra Collaroy Pty Ltd v Bhide  NSWCA 196 – was far from the only case in which the collapse of balconies has caused injury and, in some cases, fatality.
Last December, two people were killed and seventeen others injured in the Melbourne suburb of Doncaster after a balcony collapsed at a party.
Again in Melbourne in July, exploding glass narrowly missed pedestrians as it shattered onto the street in a collapse of a balcony in an apartment building.
In April, nine people, eight people and a young girl were injured respectively when balconies collapsed from a rented home in St Lucia (Brisbane), a holiday rental in Yamba (NSW) and an apartment in South Yarra (Melbourne).
Paul Kozub, a principal at insurance law firm Gilchrist Connell Legal, said liability in respect of balcony collapses can arise out of two areas.
First, there are contractual obligations. When dealing with residential consumers, for example, builders and trade contractors are required under the Home Building Act to provide consumers with a number of statutory warranties, such as that any residential work will be performed with reasonable care and skill and that the work will result in a dwelling which is fit for purpose.
These, however, are limited to parties who have a contractual relationship. In many cases, injured parties will not have a contractual relationship with those whom they consider responsible. In the case of Libra Collaroy, the injured children obviously did not contract with anyone involved in either the construction or the maintenance of the deck.
Where this happens, Kozub says the main question revolves around whether or not a duty of care is owed. In New South Wales, this is determined by Section 5B of the Civil Liabilities Act (similar legislation exists in other states).
Under this section, a person is not liable for harm caused to another in respect of their alleged fault in failing to act against a risk of harm unless:
(a) the risk was foreseeable,
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person would have taken the relevant precautions.
Essentially, this means a successful negligence claim can be brought against any party who fails to take reasonable action to prevent foreseeable risks which causes material loss or damage.
In determining whether a reasonable person would have taken precautions, subsection 2 of the aforementioned provision dictates that the Court must consider the probability of harm occurring, the likely seriousness of the harm in question, the burden of relevant precautions (i.e. the cost, time, effort involved) and the social utility of the activity that creates the risk of harm.
Applying these principals to Libra Collaroy, Kozub says the court viewed the risks as both significant and foreseeable for each of the landlord, agent and tenant. Accordingly, it was incumbent upon each of these parties to undertake reasonable efforts to prevent harm.
Before discussing these parties, it is interesting to note that a carpenter hired in 2008 to replace decking boards was not held liable. In this case, the court held that he was engaged merely to change the floorboards and not to examine the structural integrity of the balcony. A reasonable person, the Courts held, would have done simply as asked.
As for other parties, Kozub says interesting issues often surround the relationship between the owner and the managing agent. Whilst the owner often delegates responsibility for repairs and maintenance to the managing agent, this delegation is not always unfettered and the agent is sometimes restricted in what they are empowered to do and how much they can spend without owner approval. On other occasions, the owner may be an absentee landlord who rarely attends the property. In such cases, they may not be on notice about defects and therefore not liable (a reasonable person in their position, by virtue of not knowing about the defects would not have taken precautions).
In the case of Libra Collaroy, it was accepted that the agent was on notice of the defects and failed to obtain a quote to have these rectified. Nevertheless, the owner, too, was also found to have been on notice and therefore should have also taken precautions.
As for the tenant, she was partly responsible notwithstanding that fixing the problem was the responsibility of others as she had complained and was therefore on notice of the problems yet allowed people out on to the balcony at any rate.
Another issue is whether the owner or the strata manager is responsible. Where the balcony is located on common property, for example, the strata manager and strata plan owners might become responsible.
As for others such as builders, tradespeople, architects and engineers, Kozub says these people owe a duty of care to those entities with whom they have contracted and in some circumstances, others with whom they have not, depending upon their vulnerability, to ensure as far as practical that the balcony or deck is constructed in accordance with the then applicable National Construction Code.
Bad Design, Construction and Maintenance
Legal issues aside, what causes balcony collapses?
Andrew Mackie-Smith, principal consultant at building inspection firm BuildingPro Pty Ltd, said problems revolve around design, construction and maintenance.
In design, Mackie says that whilst considerable detail is needed to build a deck properly, some plans merely contain two or three lives stating that it is to be built in line with the National Construction Code and the Timber Framing Code AS1684. From this, the builder is left to decide upon issues such as connection details, timber types and spans of the balustrading.
Further, the knowledge of many builders and carpenters derives primarily from techniques passed down through generations of builders/apprentices. Rarely will they understand AS1684 or educate themselves on best-practice deck building methods, he said.
Further, Mackie-Smith says there are issues where DIY renovators inspired by home renovation shows erect balconies and decks without required approval. Whilst requirements vary across municipalities, Mackie-Smith says approvals are generally needed for decks of greater than ten square metres or more than one meter above ground level. This approval documentation, he suggests, should detail issues such as balustrade construction, stair construction, connections and attachment to the dwelling. This should be inspected at three stages: footing, framing and final. Building a deck, Mackie-Smith says, requires skill and knowledge.
There are also issues with material choice and structures within proximity of swimming pools.
On the former, he laments the proliferation of materials such as treated pine, laminated pine and engineered timber. Unlike hardwood which is durable and has been known to last more than a century, balconies and decks constructed from the former materials have been known to rot after little more than a decade.
In regard to pools, Mackie-Smith says that to avoid rust, decks constructed next to a swimming pool should not be attached to the pool shell and that stainless steel nuts and bolts should be used. Whereas decks constructed with treated pine and galvanised fittings around a pool will need to be replaced in a decade, those constructed with hardwood and stainless steel fittings will last twenty or thirty years.
Once built, Mackie-Smith says timber balconies need annual inspections and maintenance from a structural engineer, builder, architect or building inspector.
Too many property managers, he says, send inexperienced personnel to perform maintenance inspections on stairs, decks, patios, balconies and pergolas without suitable knowledge of what they were looking at. He has seen cases of balconies which were about to collapse but where the report merely states that the handrail was ‘a bit wobbly, some flaky paint’ as that was what the manager could see. Instead, he said property managers should be telling owners about the need to arrange professional inspections annually, and should be prepared to walk away if the landlord is not willing to do this.
“We go out as inspectors and consultants and see so many problems with decks” Mackey says.
“It’s because they are exposed to the elements. If it’s solid concrete, no problem. If it’s solid hardwood and there is a minimal amount of maintenance, it’s fine.”
“But with a proliferation of treated pine being used in decks and a proliferation of poorly designed decks and balconies with no approval, the risk of there being damages or an accident is quite high.”
“We’ve got to change practice within the industry.”