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Litigation over leaky buildings is now perhaps a less spoken about aspect of building litigation in Australia, particularly within the context of especially heightened concerns regarding flammable cladding and structural defects which have frequented national media over the last years. Nonetheless, be it leaky balconies, leaky planter boxes or leaks emanating from common property, the outcome does not bode well, particularly for occupants. A failure in building envelope (i.e. water tightness) has the potential to be just as disastrous as a failure in fire suppression systems or structural building components.

Water invasiveness has little respect for the integrity of as-built product. Water damage corrupts most construction elements, regardless of whether it is wood, joinery, electrical interface or fabric. If it impacts upon the integrity of joinery or balconies, key elements of the building can fail. Rust on external balconies or concrete flaking can culminate in balcony collapse, which, needless to say, poses a public danger.

Leaky building claims are very costly as water damage and water penetration can be very destructive and difficult to fix. It is so often incredibly difficult to identify the specific source and the remedy, hence the exorbitant costs of both rectification and litigation.

The Leaky Building Syndrome in New Zealand

Australia has not experienced the maelstrom that was and is the leaky building syndrome that has devastated the New Zealand construction landscape for over two decades. Leaky buildings in New Zealand, euphemistically called “Leakies” since 1994, have culminated in many billions of dollars worth of damage to New Zealand buildings. The magnitude of the leaky building crisis culminated in the establishment of a bespoke tribunal, the “Weathertight Homes Tribunal” that was established to deal exclusively with leaky homes claims.

A Price Waterhouse Coopers report released in December 2009 revealed that 42,000 dwellings in New Zealand built between 1992 and 2008 were potentially implicated in the leaky building web. Furthermore, the same report stated that the remediation costs in 2008 NZ Dollars was some $11.3 billion.

Australia has not to date experienced such a widespread leaky building calamity, nor one of that magnitude, but there are frequent complaints and reports of leaky buildings particularly in a multi-unit and high rise setting.

Labyrinthine Body Corporate Litigation

There is unfortunately a proliferation of cases where extensive water penetration is adversely affecting multi-unit apartment blocks. Ordinarily, this involves the intervention of bodies corporate, as water malaise cases tend to be of both a common property and individual unit title derivation. This leads to very complex and labyrinthine litigation as the body corporate invariably has to ‘hunt in packs’, as it were, with a cluster of unit holders.

The Law of Nuisance and the Concern for Apartment Owners

Equally problematic in the multi-unit setting is the application of the law of private nuisance. Private nuisance is an interesting tort that involves unreasonable and substantial interference with one’s land or the enjoyment of one’s land, where that interference emanates from another’s land.[1] It can be seen from this general outline of private nuisance why leaks impacting on other properties often give rise to private nuisance claims.

Regardless of whether the cause of water ingress migration is of the defective workmanship or burst pipe derivation, if water migrates from one apartment to another, then the owner of the source apartment can be found liable for causing and alternatively not arresting the nuisance. Hence, if you own an apartment and you have a burst pipe, and water seeps into the apartment below or next door causing damage, then you will likely be liable for the damages that flow from that nuisance.

One would be well advised to consult an experienced lawyer when dealing with such a scenario.

The Dangers of Toxic Mould

The most sinister aspect of water damage cases, however, is not the immense cost regarding diagnosis and protracted litigation; it is the potential for there to be an environment that is conducive to the growth and proliferation of toxic mould. Illness that emanates from toxic mould can be life-threatening and can even take a case into the public liability realm.

In 2004, the Institute of Medicine (IOM) found there was sufficient evidence to link indoor exposure to mould with upper respiratory tract symptoms, cough and wheeze in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition. The IOM also found limited or suggestive evidence linking indoor mould exposure and respiratory illness in otherwise healthy children.

Types and cause of toxic mould

Mould, according to the Centres for Disease Control and Prevention, has a tendency to proliferate in warm, damp, humid conditions. Needless to say, water damaged environments, regardless of whether they are residential abodes or commercial or civil buildings, can create an environment conducive to the growth and spread of mould. More ominous is the circulation of airborne spores, particularly in air conditioned environments, where the air conditioning systems abet the airborne circulation and transportation of spores in an internal environment.

The most common types of mould are:

• Cladosporium
• Penicillium
• Alternaria
• Aspergillus

Types of illnesses that can emanate from toxic mould include:

• Eye irritation
• Skin irritation
• Fever
• Shortness of breath
• Chronic lung disease
• Obstructive lung disease
• Hay fever
• Chronic obstructive pulmonary disorder

Toxic Mould Litigation and Personal Injury

There has been some litigation, particularly in the US, in circumstances where plaintiffs have contracted serious lung conditions due to toxic mould. With regard to Australia, there do not seem to be many reported cases, but this is probably due to the fact that many cases that are initiated for illnesses that emanate from toxic mould are conceivably settled before trial, hence, the dearth of local precedents.

An American toxic mould case, which included personal injury claims, that ran to conclusion was Mazza v Schurtz No. 00A S04795 (Sacramento County, Cal. Super. Ct.).

This case was decided by a jury, and the plaintiffs, Darren and Marcie Mazza, were successful in receiving an award for damages of $2.7 million. A decision was handed down in November, 2001.

The respondents were owners and managers of apartments. It was alleged by the plaintiffs that the respondents failed to act upon complaints with respect to water penetration and mould growth in the plaintiffs’ abode. Readings taken of the atmospheric toxicity established that there were problematic levels of stachybotrys, aspergillus and penicillium. The plaintiffs gave evidence that both themselves and their child had been compelled to attend hospital on a number of occasions on account of the mould induced toxicity.

There were a number of elements to the plaintiffs’ case which comprised negligence culminating in personal injury, contractual and warranty breach, nuisance, emotional distress (or mental harm), and eviction. The plaintiffs were successful.

Another pertinent case, albeit one that did not run to conclusion, is that relating to an American celebrity, one Ed McMahon.

In May, 2003, the Los Angeles Times reported that respondent insurers settled a case in circumstances where Ed McMahon initiated legal proceedings for toxic mould-induced sickness for the amount of $7.2 million.

McMahon and his spouse alleged that they contracted deleterious respiratory complaints on account of a toxic mould manifestation, as did their dog. The manifestation originated from a burst pipe and the LA Times reported that the contagion spread through the air conditioning system into closets contaminating, amongst other things, their clothes.

Toxic mould litigation does occur in the antipodes. Indeed, we are aware of cases where property occupiers have had to vacate abodes on account of the presence of toxic mould.

In one instance, a landlord was in the invidious position of not being able to rent her property out on account of what were considered to be unhealthy spore level readings. The landlord granted approval for their tenant to vacate the premises in light of their regard for the tenant’s future well-being.

There is an emerging new paradigm in Australia, one where more and more leaky buildings are coming to the fore. There are many issues to consider when grappling with a leaky building regardless of whether the context is the home setting, a workplace setting or a multi-unit development setting. The questions of which actors are responsible, which insurance policies respond and the issue of how a leaky building environment will ‘gestate’ are all challenging issues. In concluding this piece, the writer has formulated some pointers on how to progress the resolution of a ‘leaky.’

What to do if One is Beset with a Leaky Building

• Act with alacrity; if you are insured, contact your broker to check to see whether the insurance policy responds. If in doubt, see a lawyer at the earliest opportunity and have the policy explained to you.
• Regardless, act fast to ensure that remedial measures are brought to bear to arrest the problem as much as possible. If you are in a multi-unit development, remember the law of nuisance – you need to endeavour to ensure that the water flow does not migrate to neighbouring properties.
• Get an appropriately qualified water damage expert into do a report post-haste. Then give the report to your insurer or your solicitor.
• Ensure that there is an assessment of mould spore count; ensure that the abode is safe to live in. Further, before you settle any claim where there has been a mould manifestation, get a sign-off from an expert on mould pathology to verify that the mould and any toxic elements have been comprehensively and conclusively eradicated. This is critical.
• In circumstances where those responsible for the defective dynamic that culminated in a water damage paradigm refuse to come to the party and rectify the defect, bite the bullet and engage a reputable construction law firm. It will cost and it will take time, and anyone who suggests otherwise is someone disposed to economy with candour.
• Finally, do not accept a solution that fails to totally fix the problem. There are no Band-Aid quick fixes for leaky buildings. Close enough is not good enough, so do not be hoodwinked into a less-than-complete solution. Alas, such resolve will take time and will require fortitude and extraordinary patience but in the long run it’s the only way to go.

Footnotes:-

[1] See eg: Coventry (t/as RDC Promotions) v Lawrence [2014] AC 822.

Lovegrove & Cotton Lawyers to the Building Industry

For over thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Victoria, the ACT, New South Wales and Queensland. Justin Cotton is a leading Australian construction lawyer and widely respected in the building fraternity. Likewise, Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

By Adj Professor Kim Lovegrove MSE, RML , Chairman of the IBQC, Senior Lawyer and Law Reformer, Lovegrove & Cotton – Construction and Planning Lawyers