Question: If the caretaker is contractually obligated to inspect sewage pipes and a blockage occurs, causing $10,000 damage, can the body corporate claim remuneration for contractual negligence?
We recently had a sewage blockage in our complex. The sewage backup caused the flooding of a unit and over $10,000 in damages. Our strata insurance claim for building repairs was rejected because the cost was under the excess. Flooring replacement was not covered in the policy and the owner did not have content insurance. The body corporate is now obligated to pay for the building repairs and flooring replacement.
A clause in the caretaking agreement with our service contractor states they are contractually obligated to inspect sewage pipes regularly and notify the committee of any required problems or maintenance. The caretaker had not performed this task.
Can the body corporate claim remuneration for the building repairs and flooring replacement due to his contractual negligence?
Answer: Identify why the blockage occurred and then assess any rights to claim against third parties.
I very much suspect there is more to the agreement than just the obligation to inspect. There are usually carve outs for obligations that require a skilled trade or specialist equipment. If those are in the agreement, it comes down to whether the inspections required by the agreement could have avoided the damage you suffered or whether it was caused by something else.
Perhaps, even if an inspection was carried out the day before and someone flushed a nappy, could that have caused the blockage? I think the starting point is to identify why the blockage occurred and then assess from there any rights to claim against third parties.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
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