Re: Who pays when upstairs kitchen floods?

@Austman said:

And how about an OC owned pipe inside a wall that burst when it couldn’t have been predicted or prevented?   Where the contents of a lot were subsequently damaged by water.   I realise the OC must repair the pipe and the OC’s insurance might cover the damage caused.  But is the OC actually liable for the damage caused to the lot contents?   Or should the lot resident be claiming on their own contents insurance?

My view has always been the same as ScotlandX’s which is that the owner of the thing that fails, causing damage, is liable for the damage caused.  But then you have this item (which has always troubled me) in the NSW SCA’s “Who’s responsible …” document: 

If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent. E.g.:

1. A burst pipe occurs in a wall and the owners corporation have to knock a hole in the wall to fix it. The owners corporation are responsible to fix the hole and repaint the wall afterwards.
2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.
3. A burst hot water service soaked the magnasite in a unit and the owners corporation had to take up the carpet to dry the magnasite. Once the magnasite had dried, the carpet could not be re-laid because it had shrunk. The owners corporation would be responsible for the carpet because the carpet was damaged because they had to take it up.
4. With example 3, if the magnasite was not damaged, the owners corporation would not be responsible to dry out the carpet or replace it, if it shrunk because the damage to the carpet was not caused when the owners corporation were fixing common property.

The thing I can’t get my head around is that damage from a common property water pipe failure is not the Owners Corp’s responsibility (but damage caused in effecting a repair is).  

However, the question of negligence does come in and some cursory reading of items related to damages claims suggests that there has to be a duty of care that the “guilty” party must be deemed not to have exercised.  Can an owners corp be negligent if there was no way they could have know a pipe was about to burst?

Perhaps if it could be shown that the owners corp should have known there was a potential problem, then it would be liable. In Austman’s example, I wonder if it would have been different if it had been shown, for instance, that the radio alarm was the wrong voltage for Australian domestic use.

In any case, I think not being properly insured is almost negligent (although not under the law).  And I think not checking any equipment that uses gas, water or electricity according to the manufacturer’s instructions  (and who among us does?) amounts to a form of negligence too.

But I am neither a lawyer nor a judge so I will bow to those better informed than me.