scotlandx – It is not [s106(4)] that deals with damages for breach of statutory duty …. it is actually [s106(5)].
[s106(5)] states:
‘An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.’
The two cases that you mentioned from 2016, James and McElwaine, were decided prior to the introduction of the new Act. The current position since the new Act was introduced is that an owner is advised to seek relief through the statutory law process i.e. the provisions in the Act, rather than the common law.
Although a claimant can no longer seek relief through the common law, a claimant is not left with no relief against an OC. This is because a claimant can now seek relief through SSMA 2015 [s106(5)] – breach of statutory duty.
McElwaine (which involved water ingress) would most probably have been decided quite differently under the new 2015 Act, than it was under the old Act.
Statutory negligence can be claimed against the OC rather than common law negligence. Negligence in statute is different from common law negligence. Negligence in statute refers to a claim for breach of a statutory duty. The OC’s statutory duty is contained within [s106(1)].
It is my understanding that in such cases of a breach of statutory duty it is not necessary to prove the existence of a duty of care, all that one has to do is establish that the OC was obliged to take some action under a statute or regulation, and that the OC has failed to do so, and that as a result the claimant suffered an injury or loss. The loss can be a financial loss. (NB:There is no need to prove the 4 common law elements of negligence which I mentioned in a previous comment.)
Owner’s corporations face an increased exposure to liability claims under the 2015 Act if they fail in their statutory duty to repair and maintain common property. OCs need to be aware of this and should adjust their insurances accordingly.
This article is well worth reading: