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Insights

Whilst a home may be the one space where you can exercise some degree of freedom, homeowners still owe a legal duty of care, especially to third parties.

A common cause of injury to third parties are faulty home balconies. There have been many recent court cases exploring the duty of care a home owner owes to a third party as a result of injury or death sustained from a faulty balcony.

So how is it determined whether a homeowner owes a duty of care to a third party in the event of a balcony collapse?

Swift v Wearing-Smith [2016]

Last month the NSW Supreme Court of Appeal passed judgement on a case regarding the duty of care homeowners owe should a balcony collapse causing injury to another person.

The case concerned Mr and Mrs Swift who purchased a property in 2003.

Prior to purchasing the property, Mr and Mrs Swift had the property inspected. The building inspection report noted rust in some of the supporting structures of the first floor balcony and recommended that the rusted structures be rust proofed, repainted or replaced.

This recommendation however was not placed under the headings of ‘Issues’ or ‘Safety Concerns’ within the building inspection report.

In 2011, Mr Wearing-Smith visited the property of Mr and Mrs Swift for a family barbeque. During the course of the barbeque, Mr Wearing-Smith leaned against part of the balcony balustrade which gave way. Mr Wearing-Smith suffered serious injuries from the fall.

In 2014, Mr Wearing-Smith brought proceedings against Mr and Mrs Swift in the District Court of NSW. The court found in favour of Mr Wearing-Smith and awarded him $425,000 on the grounds that Mr and Mrs Swift breached their duty of care towards him by failing to repair the balcony which they knew was in need of repair from the building inspection report.

Mr and Mrs Swift appealed the judgement.

In this instance, the court found in favour of Mr and Mrs Swift. The Court of Appeal concluded that the building inspection report did not highlight the balcony as a safety concern but merely recommended that some parts of it be attended to.

This judgement reinforced the common law principle that whether or not a duty of care has been breached must be examined prospectively not retrospectively.

In Conclusion

Using the above balcony collapse as an example, a court cannot decide that a duty of care has been breached because in hindsight the supporting structures of the balcony should have been replaced. Instead, the court must place itself in the position of the homeowner when they receive advice such as a building inspection report and then decide whether the homeowners did or did not take reasonable action based on the advice they received.

Although on this occasion the court found in favour of the homeowners, it remains a reminder of the importance of having a home insurance policy that covers injury to third parties.