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An owner’s car was recently damaged by the common property automatic garage door as it closed on the car’s bumper. Apparently the sensors did not detect that the car was still in range of the door as most of the car had passed through, the bumper part being just out of range of the sensor. The owner submitted a claim to the body corporate’s insurance company to repay the excess he had to pay after claiming through his own insurer. The body corporate insurance company declined the claim, stating there was no negligence. The executive committee has now been asked to vote on whether we should reimburse the owner. To complicate matters the owner is a member of the executive committee (but is not obviously being part of the decision as to whether to pay or not). One executive committee member (who is a lawyer) states it is a matter to be left to the insurers to decide, the body corporate can only pay for damage caused by negligence and as this is not a case of negligence it would have to be an “ex gratia” payment, which the executive committee is not allowed to make (and if it was, would not look good as the claimant is an exec committee member, and may set a precedent). I feel that as the damage was caused by common property at no fault of the owner, we should pay. Can you advise what is the correct action? Thank you!
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I suppose you could argue about the definition of 'negligence'. If the sensors on the garage door don't pick up the car when it's still in range, doesn't that mean they're not working? How well are those sensors maintained?
As for making ex-gratia payments – if this is something the EC can't do, then an EGM can. I can't see why the owners' corporation can't decide for itself whether it's fair for an owner to suffer loss due to damage caused by common property. It's not always a bad thing to set a precedent, particularly if it's an ethical one.
I agree with Gilgal – It’s not an ex gratia payment if the EC receives an invoice from the owner of the damaged car and chooses to pay it.
And you should think about changing your insurer if they’re not going to cover you for accidental damage like this. It sounds to me like another case of mistakenly thinking that because your insurer refuses to pay, your EC isn’t liable. These are two very different issues.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Thank you both for your opinions and how promptly you replied – I appreciate your input.
Hi Jen F,
Why do you say “To complicate matters the owner is a member of the executive committee (but is not obviously being part of the decision as to whether to pay or not). “
As I understand it there is a very real prospect that all owners will at some stage be conflicted – why, given the circumstances of a strata corporation should such conflicts bar an owner (who is a member of an executive committee) or an owner at a general meeting for that matter from voting on a matter that they have a personal interest in?
Regards
Mark H
Hi there – online looking at thread re the building main garage door hitting my car, there is a sensor which apparently did not read my car – it had passed three quarters through. The door actually closed on my car and I had to get out (lucky I could!) and put key into control to get it off – it could have actually closed on a child/someone less mobile !!!!
I rang door company when it happened but as door was not damaged/still on tracks they were not interested. I left msg on strata man agent afterhours phone line to which I recieved no reply, and had to follow up later that week. Was told to get a repair quote which I did – to have it refused.
On following this refusal up – it transpired the door malfunction was not even inspected at the time and I could not get a copy of a report !!!
I have approached the EC directly to no avail – please note; I only own the garage in this building so do not partake in the running of it, but own 2 other properties on which I am on the EC and VERY heavily involved, so TOTALLY understand the thankless task of being on the EC
The amount for repair is minimal/basically less for thna my insurance excess – but I do not believe any owner should be out of pocket in this regard, and I stated this to the EC and asked what they would expect if they were in my position, and also the fact the door was not inspected at the time constitutes negligence – by the strata managers? Still to no avail…. I was asked if I had a photo of the door actually on my car – basically infering I was lying!?!?!
On top of this, not long after the incident I realised on unlocking my caged garage gate that it was not as I leave it, and realised that someone had entered my lot, and that there was a LOT of concrete dust everywhere, and the concrete slab had been drillled through and conduit attached to the ceiling. I contacted strata to tell them I not been contacted whatsoever in this regard and my lot ahd been entered without my approval and these works undertaken, to be told various things including they had not unlocked the lock to do so (however then locked an apparently unlocked area). Note; it was not an emergency situation.
Re the car hit by buildings main garage door; I am thinking I need to go to CTTT for mediation – with the EC ?? I understand actual costs are not awarded but liability needs to be determined, then go from there.
Also re entering my lot without notifiaction/approval and by picking locks?!?! Can I charged an annual fee for the conduit running across the ceiling?? then maybe they will respect accessing properties in future??
cheers!!
It strikes me that unless the EC of this building is prepared to take your complaint in good faith, you may be facing an uphill struggle to get anywhere with it.
Without proof that the accident happened as you described (and that’s where a picture taken with your phone would have been invaluable) it’s really down to whether or not they feel obliged to make a contribution to the repairs.
If you could find any evidence that the gate had malfunctioned with someone else under it, it would be an entirely different story.
I’m not saying you don’t have a right to feel aggrieved, just that you could be entering a world of frustration if you choose to pursue this without anything to back up your allegation.
As for the conduit in your garage, unless you can show that they have damaged your property, it’s really not worth pursuing. You could write them a letter complaining about their high-handed attitude and warning that if there comes a time when they require your cooperation, you will show them precisely the same level of consideration that they have shown you. And you could warn them that if they enter your property again without permission, whether or not it is locked or otherwise, you will pursue them by all legal means available.
But seriously, what’s to be gained by that? Just be glad you don’t actually live in this building.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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