Leaky Buildings and the Negligence Liability of Public Authorities: Background, Principles and Limits

Abstract

Many buildings in New Zealand suffer from weathertightness problems, known as the “leaky building” syndrome. As the leaks may cause significant financial loss, the aggrieved building owners have sued the builders, architects and local councils for compensation. The paper explains the background of the leaky building phenomenon and shows how public authorities were involved. As the article examines public authorities’ liability in tort exclusively, it gives an overview of their tort liability in general. The paper shows that councils in particular owe a duty of care to home owners and links those principles to the leaky building cases. It then turns to the cases in which courts were asked to extend this duty. The article shows how courts responded to these invitations and where they drew the line. It will be argued that case-by-case decisions are not desirable, and that a principled test is to be applied instead. The paper concludes that it is difficult for courts to apply such a test and at the same time do justice to the variety of fact situations. Instead, legislature is called upon to find appropriate remedies for the aggrieved.