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NAT: Your Balcony, Balustrades and Strata Liability

Christopher Kerin, Kerin Benson Lawyers
balustrades regulations

This article is about your balcony and balustrade safety standards, balustrades regulations and strata liability.

NSW UPDATE Sept 2021: In a landmark ruling on 23 September 2021 the Appeal Panel of NCAT has ordered an owners corporation to upgrade a balustrade to comply with the Building Code of Australia. This case marks the first time that an owners corporation has been ordered to upgrade an unsafe balustrade to achieve compliance with the Building Code of Australia. The case cuts against the long held view that the provisions of the Building Code of Australia are not retrospective and that an owners corporation does not have to upgrade an unsafe balustrade to comply with the Code. Read the full article here: Upgrade That Balustrade!

Table of Contents:

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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.

Question: We live in a 1980s NSW block of townhouses. Children reside in or visit some of these units and we are updating those balconies to be compliant with current BCA regulations. Should we be updating all balconies, even those in units not visited by children?

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I am the owner of a NSW townhouse in a block of 10 where 7 lots are two stories, constructed in about 1980.

We have recently become aware that, owing to the presence of children residing or visiting in 3 of these units, we need to make the balconies of these units compliant with the current BCA regulations and we are proceeding with this work.

Are we also legally required to make the remaining 4 two-story units compliant at the same time, even though no current risk exists for these units?

To the best of my knowledge, these 4 balconies were compliant with the BCA regulations at the time of construction.

Answer: Balconies, Balustrades Regulations and Strata Liability

The safety of a strata scheme’s premises for both residents and guests should be one of the primary concerns of an owners corporation. If a resident or guest 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 liability. See section 5.03 of the Guide to ACT Strata Law regarding the obligation of owners corporations to repair and maintain any part of a balcony on a building (which would extend to an obligation to repair and maintain balustrades).

A defective balustrade is one of the biggest risks to safety in a building, 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, among other things, meet a minimum height requirement of one metre and all newly constructed strata plans must adhere to this requirement (if the balcony upon which the balustrade sits is more than one metre above the finished ground level).

However, previous building standards contained less stringent requirements for balustrades which can result in confusion about whether older balustrades need to comply with the current standards in order to avoid liability for the injury or death of residents and guests.

What if our 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 the recent case Hutch v Ryan [2015] WADC 16 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 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 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:

  1. building reports highlighting the safety issues of a balustrade;

  2. various safety incidents caused by a defect in the balustrade, indicating to the owners corporation that the balustrade is unsafe; or

  3. 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 on our balcony 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 F. Scolaro’s Concrete Constructions Pty Ltd (in liq) (No 2) [2001] VSC 279 where the plaintiff was awarded damages for injuries suffered after falling over a balustrade that was 66.5mm below the relevant standard, It was held that the owner and builder of an apartment complex 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 scheme was built, and immediately undertake rectification works if the balustrade is found to be non-compliant.

Liability for injuries to children

A question must be raised as to whether or not most owners corporations have sufficient insurance coverage to meet the cost of care for a child who has been injured falling from a window or balcony. Regulation 5 of the Unit Titles (Management) Regulation 2011 provides for a minimum public liability insurance coverage of $10 million. A child who has been severely injured and requires a lifetime of high level care may seek more than $10 million from an owners corporation as compensation. We note that individual owners will be liable in proportion to their unit entitlements if the insurance coverage held is insufficient or unavailable.1

See Annexure 4 of the Guide to ACT Strata Law regarding the responsibility of the owners corporation to repair and maintain windows.

It might be asked how probable such an injury event is, In the years 1998 — 2008, the Children’s Hospital at Westmead admitted on average more than 15 children every year for injuries sustained from falls from windows and balconies.2 These statistics are from only one hospital in Sydney, NSW. Extrapolating on this figure, across Australia every year, it is likely that hundreds of children are admitted to hospital as a result of injuries sustained from falls from windows and balconies.

The risk posed by the above is one that is foreseeable. That is, an owners corporation could not regard the presence of children in an apartment building as being a rare event. Further, children are by nature exploratory and pose a higher than normal risk which should cause consideration as to the best way to manage the risk posed, Indeed, the seriousness of the injuries caused is high relative to the cost of taking precautions. For example, windows may be made safe by retrofitting them with inexpensive locks or window-limiting devices.

In NSW, to prevent children from falling from windows, all strata buildings must be fitted with devices that enable their windows to be locked at 12.5 cm when the devices are engaged. NSW owners corporations must have such devices installed on all common property windows above the ground floor by 13 March 2018.3

When similar laws to those in NSW were enacted in New York, there was a 96% decrease in hospitalisations due to falls from windows.4

  1. Cathy Sherry, ‘Kids Can’t Fly: The Legal Issues in Children’s Falls from High-rise Buildings’ (2012) Thomson Reuters 22.
  2. The Children’s Hospital at Westmead, Working Part for the Prevention a-Children Falling from Residential Building Outcomes Report (February 2011).
  3. Window Safety Device Requirements Factsheet, NSW Office of Fair Trading, September 2015.
  4. Ibid.

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.

Christopher Kerin Kerin Benson Lawyers E: enquiries@kerinbensonlawyers.com.au P: 02 8706 7060

Have a question about balcony and balustrade regulations or something to add to the article? Concerned about whether your balcony is compliant? Leave a comment below.

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After more detailed information dealing with Strata Law in the ACT? Chris Kerin’s Guide to ACT Strata Law is now available.

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