On June 11, 2020 the NSW Parliament passed new building laws that levy Duty of Care responsibilities for design and construction.
The Design and Building Practitioners Act 2020 NSW [DBP] is a measure intended to foster renewed consumer confidence in residential construction following the failures of the Opal and Mascot Towers. Put simply, under the new Design and Building Practitioners Act 2020 anyone carrying out construction work now has an enforceable duty to exercise reasonable care to avoid financial loss to the owner caused by defects.
It applies to all classes of buildings including existing buildings built in the last ten years and new constructions.
The laws make all contracted participants within the scope of works responsible for fixing building defects. These participants include draftspersons, architects, structural engineers, project managers, and individual subcontractors.
These contractors might typically include concreters, plumbers, electricians, and carpenters.
Duty of Care also includes the manufacture or supply of the building products used.
Duty of care also extends to supervising, co-ordinating and project managing of works where substantive control is exercised over the project works.
Understanding these new reforms will enable homeowners [clients] to understand the right of designers and builders who embrace this Duty of Care to intentionally protect them from financial losses caused by negligence.
In the case of residential buildings, the DBP Act 2020 are in essence an addendum to the existing rights that relate to under the Home Building Act 1989 with the limitation period for claims at 6 years [under the Limitation Act 1969.]
Claims under the DBP Act 2020 are subject to a 10-year period from date of completion of the building under s.6.20 of the Environmental Planning and Assessment Act 1979.
The owner would essentially have to prove that harm suffered or economic loss occurred by direct and evidential negligence of the builder, designer or a participating contractor.
Owners [clients] will have to prove in a court or tribunal that the work carried out was performed negligently.
If the works were carried out in a manner that is widely accepted by other professional builders as being a suitable professional practice or standard common to the industry then it may be deemed that there was no actual breach of Duty of Care.
It is unlikely that a court would find that a builder breached their Duty of Care obligations if, when carrying out the work, they exercised reasonable care and followed the requirements of the Building Code of Australia and relevant Australian Standards.
Contributory Negligence
Under the CLA if the homeowner who is claiming a breach of Duty of Care has contributed to the harm by failing to take precautions against the risk of that harm, then homeowner can be found liable for the damage and associated costs as well. The term used here is “contributory negligence.”
A reasonable person in the position of homeowner who would have known that their non-disclosure, actions or inactions would contribute to the risk of harm or economic loss is contributory in their negligence. In such cases the claim amount may be deemed 100% attributable to the homeowner – thereby payable to the builder — if the court thinks it just and reasonable to do so.
Comments
The Australian Government’s HomeBuilder housing stimulus package is intended to stimulate residential property development and boost the economy in the wake of the COVID-19 lockdowns.
Due to the weightier Duty of Care, builders are likely to exercise a more considerable [i.e. substantive] control in project management, site supervision over trades and more control over the quality and movement of building materials.
Rebilt is an experienced renovation specialist whom embraces the new Design and Building Practitioners Act 2020 — and view the Duty of Care as an essential company core value.
DISCLAIMER: the above article is intended as a plain English introduction for our clients in understanding the new Design and Building Practitioners Act 2020 in concept. It is not intended for legal interpretation or advice and owners [clients] may need to seek their own legal advice.
Useful links:
https://legislation.nsw.gov.au/view/html/inforce/current/act-2020-007
https://hia.com.au/Publications/InformationSheets/nfscod1349-duty-of-care-nsw
