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[Jimmy-T]

This topic spun off out of another discussion about reduced size of a car space.  It is now taking over from the original discussion so I have moved it to here.

The gist of it was that Keep Calm was forced to park his car just outside his parking space and it was subsequently damaged by falling guttering – JimmyT

@Keep Calm said:
The insurance wanted me to prove negligence. 

The pipes seem to be on the original plans. 

Anyone know where i can get a copy of old standards?

Was it a storm that brought the gutter down? That might limit the OC’s liability.

But if it was due to lack of maintenance, that would generally be considered as negligent.

To note that the current parking space standard (AS2890.1-2004) is not necessarily exactly adopted by all states and councils, even today.  I’d try asking council for the standard that existed at the time.

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[Whale]

Keep Calm – insurance and proof of negligence is irrelevant, as under the provisions of Sect 62 of the NSW Strata Schemes Management Act (1996)  Owners Corporations (O/C) are entirely responsible without limitation for the proper maintenance and repair of their common property, which the balcony gutters at your Plan that dislodged and fell on your motor vehicle form a part.

So irrespective of whether or not your O/C’s insurers accept a claim for repairs to the gutters and your motor vehicle, it (the O/C) remains responsible for making those repairs, so you have a couple of options in my opinion:

1. Make a formal claim for the costs of the repairs to your motor vehicle against the O/C, and if necessary follow that with a Letter of Demand, followed by Mediation through a Community Justice Centre and as precursor to Claim for monetary damages in the Local Court.
2. If you hold insurance for your motor vehicle, then speak with that insurer about its repair on the basis of a subsequent claim by them against the O/C just as would occur if the damage was caused by a road-related incident.

Regarding the carspace, the current Australian Standard cited by Austman (post #2) was current in 2004, but if the Registration of your Plan predates that, then speak with your Local Council about the Standard then applicable.

[Austman]

The OC’s insurer seems to have determined there is was no OC negligence and therefore no liability?

If the common property guttering was poorly maintained, that’s probably negligence.  If a storm caused the guttering to fall it might not be negligence.

While an an OC/BC must repair damage to common property regardless, it does not have to repair damage to other property unless it’s liable for that damage.  And that usually means negligence has to be established.

IMO, Keep Calm will now have to establish negligence to successfully claim against the OC either through the OC’s insurer or by any other path.

[Jimmy-T]

We are getting off topic here but I have to agree with Whale (as usual).

The guttering is common property and, under common law, the owners corp is responsible for any damage it causes, regardless of whether it is well maintained or not.

Rejection of a claim by an insurer is not a “get out of jail free” card, as many people seem to think.

It’s the opposite and the owners corp has to either fight the insurer or dip into their funds to pay for the damage.

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[Sir Humphrey]

Unusually, I am inclined to agree with Austman rather than Jimmy T. Yes, the OC has to maintain the gutter whether it was well maintained previously or not. However, if there was no negligence or defect of the common property because the gutter had been well maintained, I don’t see how the OC is liable to pay for the car owner’s bad luck in a storm. 

[Keep Calm]

It was strong winds that tore the gutters down.

I have done the letter of demand and that’s where the proof of negligence came in.
My insurer said the costs were not retrievable therefore I would have to pay the excess through my private insurance.
They also did admit that had i said storm instead of winds it would have gone through. So in other words, honesty doesn’t pay!

 

The funny thing is i have requested some documentation before submitting my adjudication request. One of these included a maintenance schedule for the guttering. So when i went searching through all the Strata documentation available, i find 2 interesting things:
1] a quotation request from the Strata for regular maintenance on the guttering [dated after my request has been sent of course]

2] One of the EC members requesting repairs to her guttering in February. After mediation. This particular EC member attended the mediation so i thought that was funny.

 

There are toxic weeds growing out of these gutters so they occassionally have a contractor coming out to clear the weeds. Occassionally means when someone notices the weeds and requests that they be removed.

 

Now not sure if i mentioned this… getting back on the topic….

but it looks like the pipes have been reallocated in another shared carspace.
EC claim it was part of some major works that were done but the concrete is completely different. There doesn’t seem to be any paperwork for it though which i find out. Will a photo be enough proof?

[Jimmy-T]

I am not going to the barricades on this, Peter, but given that guttering is supposed to deal with rain, you would hope it would be pretty storm-proof.  

It would be almost impossible to say whether or not it had been properly maintained but I would argue that guttering isn’t supposed to fall apart in nasty weather, therefore the ‘bad luck’ is the OC’s, not the car owner’s. 

This is the kind of issue you wish was worth taking to NCAT (it isn’t) just to see what kind of bizarre and arcane decision they would make.  

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[scotlandx]

If damage is caused to someone’s property by common property, then the OC is liable for the damage.  Whether or not it has been “maintained” is irrelevant.    There are many cases where you don’t know something is wrong until things go awry.

We had strong winds that brought our awning down and our insurer accepted that claim, strange that Keep Calm’s insurer is making a distinction.

[Austman]

@scotlandx said:
If damage is caused to someone’s property by common property, then the OC is liable for the damage.  Whether or not it has been “maintained” is irrelevant.    There are many cases where you don’t know something is wrong until things go awry.

The OC generally has to shown to be negligent to be liable, but their insurance might cover the situation regardless.

@scotlandx said:

We had strong winds that brought our awning down and our insurer accepted that claim, strange that Keep Calm’s insurer is making a distinction.

The distinction is that the OC’s insurance will most likely cover storm damage to its own property. It’s any subsequent damage to other property as a direct result of the storm where they might not be liable.

In my involvements with our OC insurers, I’ve generally found their assessments to be pretty accurate in these matters. They might be wrong about the lack of negligence but they usually get it right.  And it seems that Keep Calm’s own private insurance company came to the same conclusion – because they could also try recovering their costs against the OC.

So for the OC to be liable, two insurance companies have got this wrong, which I admit is not impossible!

[Whale]

We seem to have been diverted to concentrating upon whether or not the Owners Corporation’s (O/C) insurers will accept a claim for the costs of repairing its common property roof gutters and for repairing consequential damage to Keep Calm‘s motor vehicle, and who if anyone has been negligent.

The salient point in my opinion remains the O/C’s unfettered responsibility to properly maintain, repair, and replace its common property and to repair any damage consequently caused by a failure of any component of that property.

As I earlier observed, the decision to lodge an insurance claim is at the discretion of the O/C and irrespective of whether or not that’s accepted by the insurer, the O/C’s responsibilities remain.

If negligence is an issue, then provided Keep Calm‘s motor vehicle was legally / correctly parked (e.g. not contrary to a By-Law) that too is a matter for resolution between the O/C and its insurer, albeit possibly compromised from the O/C’s perspective by it seeking more frequent cleaning of weeds from its roof gutters after the event (ref: post #12).

So returning to Austman‘s point (post #15), even if two (2) insurers decline to accept a claim by the O/C for reasons of negligence or anything else, the O/C’s responsibilities aren’t diminished and Keep Calm‘s claim against it should be tested as earlier suggested in a Community Justice Centre and if necessary in a Local Court, particularly due to the O/C’s tacit admission of negligence arising from its acknowledgement that unattended weed growth placed extra weight and therefore stress on the roof gutter and its supports. 

Back on topic…. I’m inclined to the opinion that the recent works to relocate pipework on another carspace add weight to Keep Calm‘s argument to have the O/C perform those same works at his carspace, and YES photographic evidence showing both of the above would assist at Mediation and afterwards at the NSW Civil & Administrative Tribunal (NCAT) if that proves necessary. 

PS – I’m suggesting that the matter of a monetary claim against the O/C is a civil matter to be pursued in a “real” court, and that carspace access is a strata matter to be taken if necessary to the NCAT. 

[Austman]

@Whale said:
So returning to Austman‘s point (post #15), even if two (2) insurers decline to accept a claim by the O/C for reasons of negligence

But that’s not what I said.  The second insurer, Keep Calm‘s own private insurer (I’m guessing car insurance), has nothing whatsoever to do with the OC and probably isn’t the same company as the OC’s insurer.   Yet they determined that they would not win a claim to recover their costs against the OC.

By all means challenge something in the tribunals and courts.  But do a bit of research about tort law in Australia.  The insurance companies know that law extremely well and have done their assessments.  They make mistakes sure.  But if they have it right, the same law and circumstances will apply for any claim Keep Calm makes directly against the OC.

Anyway, good luck Keep Calm if you choose to go down this path.  I don’t know that weeds in a gutter add extra weight when water weighs more – but it might point to a general lack of maintenance.

[Jimmy-T]

@Austman said:

By all means challenge something in the tribunals and courts.  But do a bit of research about tort law in Australia.  The insurance companies know that law extremely well and have done their assessments.  They make mistakes sure.  But if they have it right, the same law and circumstances will apply for any claim Keep Calm makes directly against the OC.

Sorry, but I believe this is just wrong.  Insurance policies are NOT the law.

Insurance policies are a contract that says the insurer will pay the insured compensation by a certain amount under certain circumstances. They can include any exclusions that the insurer and insured agree upon.

For instance, you could insure your garden but the insurer could say they won’t cover injuries caused by loose pavers.  Does that mean you can’t be sued if someone trips over a loose paver?  Obviously not – it just means your insurer hasn’t covered you and the compensation has to come out of your own pocket.

In the case of the guttering, the insurer has decided that the damage was not covered by the terms of the policy.  That’s fine and may be absolutely legitimate under the terms of the policy but it doesn’t mean the law says there is no responsibility on the owner of the guttering for the damage caused – it just means the Owners Corp wasn’t covered for this incident.

Many insurance companies refuse to cover Owners Corporations for defamation and libel.  Does that mean the Owners Corp has no responsibility if they defame or libel someone?  Obviously not.

Yes, insurance companies make mistakes and some also occasionally try to wriggle out of their contract responsibilities.  But their decisions are not the law.

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[Austman]

When I look at my insurance policies and the polices that my OC has, when it comes to Liability to Others (meaning not the property of the OC) – they typically state something similar to this (this quote is from CHU):

Liability to others

We insure You up to the Limit of Liability shown on the Schedule if
You become legally responsible to pay compensation for:
Personal Injury; or
Property Damage;

So the OC needs to be legally responsible.  That’s where the law comes into it.  In this situation (liability to others), insurance will cover the OC if by law they are responsible.

It would seem that in the guttering example, 2 insurers came to same conclusion: that the OC would not be legally responsible.  The OC’s insurer asked for proof of negligence (which is usually needed to establish liability) and the damaged car owner’s insurer didn’t think they had a case or they would have most probably claimed against the OC.  They might both be wrong but in my experience they tend to get these matters right.

But if the matter went to a tribunal/court where it was ruled that the OC was in fact legally liable, the OC’s insurer would have to cover them.

[Jimmy-T]

I am going to say this once more and then I am going to shut this discussion down.

If something owned by a person or a corporation fails and injures another person or damages their property, then the owner of the failed property is legally responsible.

The fact that an insurer has asked for proof of negligence is just an indication that they have guidelines.  It does not mean the owner of the property is not liable.  And what “seems” to be the case is irrelevant.

The law is the law and it has nothing to do with what insurance companies do to avoid paying out on claims. Lack of insurance cover is not freedom from liability. Insurers only have to pay out to the extent of their policies, not to the extent of the policy holder’s liability. 

The question of whether or not it’s worth pursuing a claim is a whole other issue which also has nothing to do with the law.

End of story.

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