Since it began operating in June 2020, the duty of care in section 37 of the Design and Building Practitioners Act 2020 (NSW) (Act) has become increasingly popular in claims against almost anyone involved in the design and construction of buildings.

Recent decisions from the Supreme Court have shown that the duty of care can be breached by almost anyone involved in carrying out construction work. This includes builders, architects, suppliers and engineers.

Justice Ball of the NSW Supreme Court recently handed down a decision (The Owners – Strata Plan No 89005 v Stromer (No 3) [2022] NSWSC 1707). This decision shows that winning a claim about breach of the section 37 duty of care is not as simple as proving defects exist.

In Stromer, a builder brought a cross-claim against a building supervisor under section 37 of the Act. It claimed that if defects were found in the builder’s work, then the building supervisor was liable to contribute to, or indemnify the builder for, the costs of repair.

Justice Ball explained that the mere fact that a building suffered from a number of defects did not mean that a defendant has been negligent. In order to succeed, a claimant must:

1. identify the particular actions that a person in the position of the defendant acting reasonably would have taken to avoid the relevant risk of harm, for example: inspecting the construction of each cavity wall flashing at identified intervals;
2. prove that the defendant did not properly take those actions; and
3. show that the harm would not have occurred had the defendant taken those steps.

Showing that defects exist is only one aspect of proving a breach of the duty of care under section 37. Allegations that a defendant failed to prevent defects occurring is not nearly enough. Justice Ball ultimately struck out the builder’s cross claim list statement.

It is important to carefully consider the basis for any claims for breach of duty of care before making or responding to them.

If you’d like to read more about the application of section 37, you can read ‘Developers beware – Court widens scope of section 37 of the Design and Building Practitioners Act’.