Builder Negligence NSW

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

It is not uncommon to hear first hand, or through the media, about builders in New South Wales (NSW) who fail to competently complete renovations or new build projects. In those cases, the families are usually left out of pocket when a builder does shoddy work. This raises the question, what duty of care does a builder owe in NSW? Moreover, if this duty is breached, what recourse does someone have if they are harmed by a builder’s negligence? This page addresses these questions about builder negligence in NSW.

Builder Duty of Care

The term “duty of care” is often misunderstood. A duty of care is basically a requirement that someone takes care to avoid causing harm to certain other people. For instance, a teacher has a duty of care to avoid causing harm to their students. This duty exists because a teacher has more control over the relationship, and students are forced to rely on their teachers in certain situations.

A builder has a duty of care to their clients because they are in a position of control. Due to the special skill of builders, homeowners are often unable to identify if work is competently completed and, therefore, must rely on the builder to take reasonable care. In addition, a builder who is in control of a work site has a duty to ensure the site itself is safe for both employees and visitors. However, even where a duty of care does exist, this would not require the builder to do everything perfectly at all times. It only requires the builder to do what is reasonable to prevent others from suffering foreseeable harm. For instance, if a builder constructs a deck that is not structurally sound, they could easily foresee that the homeowner and their visitors could suffer harm as a result. Any reasonable builder would think ahead to the potential for harm, and take reasonable steps to ensure that the deck was safe.

Builder Negligence Claims

When a builder breaches their duty of care to act as a reasonable builder would in the same situation, a homeowner may be able to make a claim for compensation under the common law (through the tort of negligence). It is important to note that this breach of duty of care only rises to the level of negligence when it causes injury, damage or harm.

Negligence claims against builders typically involve pure economic loss due to consequential loss from reduced property value and rectification costs. For example, in the example above, if the homeowner finds that there are building defects on their deck, they can seek compensation for the loss of value in their property and the cost of rectifying the defect. However, a negligence case against a builder does not have to be limited to economic loss. If, for instance, the poor work on the deck led to someone getting hurt, the injured person can seek compensation for the personal injury that was a foreseeable consequence of the builder’s breach of their duty of care.

It should be noted that a builder cannot contract out of their duty to exercise reasonable care. However, if someone buys a property knowing that there are defects, they are unlikely to recover compensation against the original builder unless there was a contractual warranty assigned to the buyer (see the decision of the  New South Wales Court of Appeal in Allianz v Waterbrook [2009]).

It is important to seek legal advice before pursuing a case for negligence against a builder due to poor quality work, as there may be more straightforward avenues to pursue under contractual or statutory warranties. Certainly, the Design and Building Practitioners Act 2020 imposes a statutory duty of care on builders to avoid causing economic loss to current and future building owners through defects.

Builder Duty of Care to Employees

Constructions sites can be very dangerous workplaces. A head builder has a duty under the Work Health and Safety Act 2011 to provide a safe work environment because they are in control of the premises. An employed worker who is injured because of the negligence of the head builder can make claims under the Workers’ Compensation Act 1987.

A head builder also has a common law duty to protect the health and safety of all workers on a construction site. Breach of this duty can open up a head builder to a negligence claim. This duty of care extends to all contractors, such as carpenters, electricians, plumbers, and day labourers.

As a part of their duty of care, the head builder must ensure that they:

• conduct a risk assessment to check that the work site is safe;
• check that the equipment works and is safe to operate;
• ensure that contractors are given inductions and relevant safety information, instruction, training and supervision;
• coordinate trades to reduce the risk of injury;
• monitor the workplace conditions and the health of workers; and
• actively manage the risk of falls on site.

Builder Duty of Care to Visitors

Managing the safety of a work site extends to considering the risk to visitors. The Civil Liability Act 2002 permits any person injured on a worksite to claim against the head builder for previous and ongoing medical expenses, loss of income and care and assistance. Depending on the circumstances, the injured person may choose to sue the property owner, the occupier or the builder. Under this Act, there is a three-year time limit from the date of discoverability to make a compensation claim.

If you have suffered loss because of the negligent conduct of a builder, it is essential to seek competent legal advice without delay. Similarly, if you are a builder who is facing a negligence claim, it is highly recommended to seek assistance to defend against such a claim. Contact the experienced civil law solicitors at Go To Court Lawyers for any advice on builder negligence in NSW. Call 1300 636 846 today for any legal services.