Toomey v Scolaro’s Concrete Construction

The case: Toomey v Scolaro’s Concrete Constructions

On 2 March 1996, Mr Toomey fell over a defective balustrade at a residential apartment block that was non-compliant and suffered serious injuries to his back. According to the Building Code of Australia, a balustrade must be at a minimum height of 1000mm. The apartment block was constructed on behalf of Davidson Hughes Estates Pty Ltd (DHE), who is a wholly owned subsidiary of Hudson Conway Limited (HCL), as is Hudson Conway Management Limited (HCML).

The court decided that it was the architect’s responsibility to ensure the designs met the required standards, he submitted a building plan that contained inconsistent dimensions that could have been misinterpreted by the builder. However, the building surveyor approved the design and issued its permit. The building architect, builder, surveyor, and the inspector failed to notice this error. It was determined that the part of the balustrade where Mr Toomey fell, had a height of only 933.5mm, which is well under the required height as issued in the Building Code of Australia.

It is important to know that failure to meet the requirements of the regulations and codes, may result in a private right of action, especially when it poses a threat to others. This particular case establishes that both the owner and the builder of this apartment complex owe a duty to building users. It is their responsibility to ensure all areas of the building are in compliance with the code and to protect all users from all risks such as falling. Both the architect and builder were negligent due to the fact that they did not verify the dimensions laid out in the building plan.

Compensation

• In the end, Justice Geoffrey Eames decided that the responsibility of this case rests on a total of nine defendants and awarded $2.248M in damages paid by:
  • The two men wrestling on the stair 50% of compensation
• Balance 50% equally paid by the following:
  • two main building construction companies,
  • the apartment’s architect,
  • the building surveyor,
  • the building inspector,
  • the developer, and
  • the building manager

What does this now mean?

If this applies to a balustrade, the same risk surely would apply to all other aspects of a stair design especially high-risk item such as tactile ground surface indicators and contrasting stair nosing’s.

It is important that compliance certificates are obtained and issued to the relevant building surveyor that confirms that minimum levels have been achieved prior to occupancy.

Other resources

http://www.lsclawyers.com.au/elibrary/liability-build-survey
https://jade.barnet.com.au/Jade.html#!a=outline&id=74600
http://www.hpw.qld.gov.au/SiteCollectionDocuments/098.pdf
http://www.allens.com.au/pubs/ari/2002/construction.htm
http://www.tved.net.au/index.cfm?http://www.tved.net.au/PublicPapers/April_2004,_Sound_Education_in_Law,_Incorrect_Building_Certification.html
http://www.quadriplegic.com.au/quadriplegic-articles/2001/8/18/crippled-star-awarded-225m/