Who's Liable? Car Damaged by Falling Garage Door in Apartment Block

Genga on 24/08/2020 - 19:33

Interested in thoughts on the below situation, if anyone has any insights.

Apartment block garage door has history of being temperamental. Incident occurred when one night it would not open when a tenant was trying to exit underground car park with remote control. He inspected the door, tried to manually open a couple of times, tried again with remote and it opened, but when it reached the top, it rolled back down (like a free fall) as he had obviously moved what ever it is that holds the door open/controls the lowering mechanism.

He reverses and re parks car inside and goes back upstairs.

5mins later another tenant returns home and uses remote to open garage door from outside. Begins to enter garage as garage door nears fully open position, but door begins to fall and lands on bonnet of car. He manages to reverse car out but small dents have been made in the bonnet.

He contacts Strata Management and obtains security footage which shows all of the above.

The door has since been repaired but Strata Management says the Owners Corporation cannot accept liability for the damage to the vehicle and the strata insurance company will not cover it.

Where do both tenants stand? Person with damaged bonnet does not want to go through insurance. He has obtained 2 quotes for repair ($4700 and $950) + 3 days car hire while car being repaired ($300).

Is it worth pushing back on the strata insurance angle, or is the other tenant liable becuase he had "tampered" with the door (even though it was faulty and wouldn't open).

Both tenants are renters.

Thanks in advance.

Home & Garden

Comments

  • spackbace on 24/08/2020 - 19:35

    or is the other tenant liable

    Nope

    • Genga on 24/08/2020 - 19:43

      What grounds do you think they would have to dispute it? And if they're not liable, then who is?

      • spackbace on 24/08/2020 - 19:45

        Ok so lets clear up the story, it's obvious you're the person who's car got hit…

        The owner of the door would be liable, however that depends on any "enter/park at your own risk" notifications on either the parking complex, or your own agreements you have to sign.

        How much is your excess?

        • Genga on 24/08/2020 - 19:54
          +3

          No, actually the other way around - my husband was the one who "tampered" with the door.

          Neighbour says he doesn't want to go through insurance as it will raise his premiums.

          Real Estate agent contacted me today about it and forwarded me the email from the other tenant to the strata company, which had the security camera footage, repair quotes etc.

          • thatonethere on 24/08/2020 - 20:05

            @Genga: You can try the balls of steel approach and ignore the insurer and strata. The insurer may well give up.

  • Presence on 24/08/2020 - 19:44

    Have you read the rules of the strata?

    • kahn on 24/08/2020 - 19:55
      +10

      A-ha, there it is! Section 6(A) clearly states:
      "A tenant must not tamper with the faulty garage door in an effort to open it. If the tampering results in the door falling on one or more bonuts, then the Owners Corporation shall not be held liable for the damage to the bonuts."

      • kanmen on 24/08/2020 - 20:07
        +5

        I kept reading bonuts like 'bownut' as in like donut.

        kanmen on 24/08/2020 - 20:07 (Collapsed - Offtopic. Show)
        • kahn on 24/08/2020 - 20:08
          -3

          Cool.

        • pegaxs on 24/08/2020 - 20:20
          +1

          ffs, it's "Doughnought"

          Dough being what it is made of, nought being the shape…

          Do being the action of performing a task, nut being a small, hard shell cased kernel, mad person or testicle.

          :D

          • kanmen on 24/08/2020 - 20:21
            +1

            @pegaxs: look that just doesnt fit into my bonut-donut narrative alright

            • pegaxs on 24/08/2020 - 20:27
              +1

              @kanmen: For anyone else reading this… I believe the first "bonut" reference is here and it has sparked the ongoing "bonut" meme…

              • kanmen on 24/08/2020 - 21:03
                +1

                @pegaxs: Ahhh this makes sense, thanks for explaining. In future I'll join in on the fun

              • Chandler on 26/08/2020 - 14:03

                @pegaxs:

                I believe the first "bonut" reference is here

                Much better than the Urban Dictionary definition; still a better love story than Twilight.

                • pegaxs on 26/08/2020 - 14:41

                  @Chandler: Urban dictionary is a stupid site where every word that is on there has some retard making definitions that relate to something sexual. No one puts a doughnought on their ding dong and calls it a "bonut"… Except for idiots looking for fake internet points…

                  • Chandler on 26/08/2020 - 15:32

                    @pegaxs: True. It's like Wikipedia without curation, or knowledge really.

  • 87percent on 24/08/2020 - 20:01
    +1

    If the door closed normally (after your husband went through), and then opened properly (for the next driver), i would think it’s the buildings insurance

    • Genga on 24/08/2020 - 20:16

      Door didn't close properly for my husband - it fell down, just like it did on to other tenant's car, but husband was just standing in front. Husband returned our car to our spot and then 5 mins later other tenant arrived from outside and opened OK, but it fell on him as he entered.

      • 87percent on 24/08/2020 - 20:19

        Oh OK.. well, do they have that on footage too?

        • Genga on 24/08/2020 - 20:24

          Yep.. Its all there! The timing is so unfortunate as husband would have barely just come back upstairs when the other guy came home. Wouldn't have even had time to hand write an out of order sign on it to warn anyone. There's also no current contact number available for who to report things like that to.

  • brotherfranciz on 24/08/2020 - 20:08
    +5

    The door was already clearly faulty when your husband tried to use it.

    Body Corp stuffed up by not getting the door repaired properly, and now want to pass the buck to your husband.

    Edit: it also doesn't make sense that Body Corp fixed the door but didn't get your husband's insurance to pay for it? Surely if they are denying liability, then they wouldn't be paying for the door repair themselves?

    • Genga on 24/08/2020 - 20:13

      Yes, has history of being faulty, and did not open when husband tried to exit, but other tenant did successfully leave about 20 mins prior to husband attempting to leave.

      So not enough time to even report faulty door, let alone have body Corp respond and repair.

    • Genga on 24/08/2020 - 20:19

      I'm guessing becuase it has a history of being faulty they just repaired it no questions asked. And I assume that the security footage was only reviewed at the request of the other tenant, or as a result of the tenants incident report

  • donbot on 24/08/2020 - 20:09
    +5

    How is this not the onus of the owners corp? Common property caused damage to a third party.

    If their insurance doesn't accept the claim for whatever reason, it doesn't absolve the owners corp of liability.. it just means they have to pay from OC funds. Essentially imagine you have an at fault car accident and say to the other party 'narrr.. insurance won't cover me so I'm not at fault.. sort yourself out'.

    Lodge it with his insurer as a not at fault claim, it won't mess with his premium or charge an excess. Notify them that the OC is liable for the damage due to their negligence.

    Save himself the headache and let the insurer go after them.

    • Genga on 24/08/2020 - 20:30

      I agree that it would just make sense to go through his insurer. I guess he thinks it will affect his future premiums, but that wouldn't be the case?
      Although I'm guessing it could come back to bite us if the OC manages to successfully disprove being at fault and then insurance comes after us, in which case we could be up for more $ than what we could potentially just settle with him directly (especially if their preferred repairer is in line with the $4700 quote and not the $950 quote!)

      • donbot on 24/08/2020 - 21:09
        +1

        Insurer will not come after you - they will merely accept it as a third party liability not identified, which in a practical sense, means your at fault and his your premium.

        I've claimed against my personal policy for third party at fault claims before where I've had their details. Its much, much easier to get your car fixed and let the insurer deal with getting costs covered - that's what you pay them for.

        In one case, I got a call about 5 years after the accident from my then insurer (I had changed insurers since the accident) as they needed some form signed by me so they could take the third party at fault to court standing in my shoes, as his insurer had denied him coverage for whatever reason, so they were suing him to get their costs.

        I said I didn't want to sign - they said they'll come after me for costs as if I don't sign as I'm not abiding by my obligations to mitigate their loss and they can't sue him. I then said where do I sign, and never heard back.

        I'

  • Summoner on 24/08/2020 - 20:09

    What was the issue with the garage door anyway when it was repaired. I am guessing, unless the technician confirms your husband damaged the garage door when he tried operating it manually, the strata has to cover it?

    • Genga on 24/08/2020 - 20:20

      I'm not sure what the technician found to be the actual problem.

      • Summoner on 24/08/2020 - 20:28
        +1

        Well if there is a security footage, it should be showing that the garage door was already faulty before your husband tried to open it manually. Maybe try arguing it was already faulty and ignore them?

  • brendanm on 24/08/2020 - 20:20
    -3

    The tamperer is at fault, hardly stratas fault that someone damaged the roller door, and sure isn't the other driver's fault either.

    • [Deactivated] on 24/08/2020 - 20:24
      +1

      I agree that it isn't strata's fault but one would have to prove that the "tampered" did infact tamper in a way that would have caused the incident.

      • brendanm on 24/08/2020 - 20:44

        I suppose if that have video footage of it not dropping on cars, the ops husband touches it, lifts it up and it drops, he then goes back inside without telling anyone, it then lifts up and drops on someone's car, it's a reasonable start. You would then also have testimony from the door repairman, he would know if anything had been "unlatched" to cause this scenario.

  • [Deactivated] on 24/08/2020 - 20:23
    +1

    Unless the previous fault is relevant, the damage to the other car wouldn't be covered by owners corp/insurance as the current situation is apparently caused by the door being tampered, and the owners corp hasn't been given any opportunity to place warnings or take any action.

    If the other owner wants to assign blame, it could come back to you but they will have to prove that you caused the door to malfunction which is unlikely given that you also had problems with the door. The problem you had may not have anything to do with the other person.

    The other person should just get it sorted with their own insurance.

  • John Kimble on 24/08/2020 - 20:35
    +1

    What a difference in quotes! Aren't you meant to get three and pick the middle one? Haha

    • Genga on 24/08/2020 - 20:44
      +1

      I know! I almost fell over when the real estate agent told me the bill would be ~$5000!

    • Xistn on 25/08/2020 - 08:38

      you only need one quote now.

      • John Kimble on 25/08/2020 - 09:46

        I meant it's good practice to (it's what I was taught growing up), not that it is required.

  • skid on 24/08/2020 - 21:23
    +2

    It can't be your husbands fault. Maybe someone else damaged/tampered with the door before he did?

    Strata have been tardy with fixing a safety issue. What if a child were under that door?

    Or the party with the damaged car would have to put it down to bad luck.

    • Chandler on 26/08/2020 - 14:38

      Better yet what if it opened and closed fine for OP's partner, and did the drop for the next person? Was it due to the tampering, or the existing fault?

      OP's partner also wouldn't have tampered with the door if it wasn't already faulty.

  • Daddy on 24/08/2020 - 22:14

    Insurance would cover it for the neighbor and then chase whoever tampered with the door to recover their costs.

  • kiitos on 25/08/2020 - 09:44
    +1

    What did your husband actually do to the door while trying to get it to work?

  • whooah1979 on 25/08/2020 - 09:45
    +1

    Things falling from above. This is clearly an act of God.

  • bweiss on 25/08/2020 - 10:04
    -2

    I'm unfortunately on the 'side' of the strata here.
    I assume that your husband is not a 'licensed' garage door repairman, doesn't have liability / negligence insurance, and wasn't engaged by the strata in an authorised manner to repair the garage door.
    Hence your husbands actions, whilst well-intentioned, were negligent, have resulted in injury / damage to another party, and hence incur a liability.

    It was as a direct consequence of your husband's actions that this situation resulted.

    I would just pay the damages claimed by the insurance company.
    If you really fight it, then you would need to consider the consequences:
    a. The damaged party's insurance may try to claim against the strata insurance.
    b. The strata insurance will obviously bring in lawyers, but may not fight the claim, may just join the claim, and forward it on to your husband.
    c. You may be evicted from the tenancy, most strata bylaws will have clauses to allow for eviction in the case of willful and negligent damages.
    d. It's almost certain that in a court, it would not be found to be accidental and hence covered by either the car owner's insurance, or strata insurance… since it was no accident, your husband was directly responsible for the occurance.

    • dasher86 on 25/08/2020 - 11:11
      +1

      I disagree.
      A tenant has every right to be able to enter and exit the building.
      Her husband was not trying to 'repair' or 'willfully' or 'negligently' damage the door. The door was already damage.
      Husband merely tried to manually open it which is well within his rights, there should be a manual open on these doors for safety reasons.
      if the door was in proper working order and maintained by the strata it would not have caused damage to a tenants property.

      • bweiss on 26/08/2020 - 07:51

        The strata provided a means to enter / exit, via the remote. If that didn't work, it should be raised to the strata immediately.

        Where is the evidence the door was damaged? How about if his remote was faulty, or had no batteries, or if he was using the wrong remote entirely?
        It sounds like the video is what would be presented. If 5 minutes earlier someone entered/exited without problem, this will suggest no fault of the door.

        Claims of the door being 'known as problematic' are conjecture and hearsay, and not given much credit if things go to court.

        Unless instructions were provided on how to open the door 'manually', then he has an obligation (under OHS / WHS) to NOT interfere with the door.
        Often there will not be a manual open / release on these doors, entirely because that can result in the uncontrolled descent of the door, which is dangerous. Imagine if the door did not hit the car bonnet, but a pedestrian instead, they could likely have been killed.

  • Ken1977 on 25/08/2020 - 10:39
    +2

    Maybe request the yearly Maintenance and inspection records of the garage door from body corporate, find the model number of the garage door motor or possibly sticker from install company, online manual for door and install company will say yearly Maintenance is required. Let's see if it was done. I'm guessing not. Body corporate is now negligent for not maintaining door.

  • Tigercjn on 25/08/2020 - 11:31
    +1

    Door was faulty, you husband just verified it, other people may have also tried to get out or in before or after him. It did not work so he returned his car and went up stairs to report the problem. Not your problem. body corp to fix. If the other person drove under a moving door he is at fault. You must wait untill the door is fully up and stopped before driving under it as you could damage the door if you drive through when it is not in the full up position. So person with fauly car is at fault for damage to car not body corp.

  • lainey13 on 25/08/2020 - 19:22

    This falls under the rule of 'You touched it last, you broke it'. It's quite similar to 'You told me something was broken, you must have broken it'.

    • John Kimble on 25/08/2020 - 19:23

      You mean "whoever smelt it, dealt it"?

  • 82norm on 25/08/2020 - 20:26

    Lodge an application to fair trading for remediation.

  • ozbaragan on 25/08/2020 - 20:35

    Hi OP can you tell me what exactly your husband did? what did he do manually to open it? I think it is normal to inspect what is wrong with garage door to see what is wrong, like just looking around to see, without opening or changed anything. I mean I wont start taking my screw driver and taking it apart which I assume your husband did not do as well??? He was only trying to get it working because he wanted to leave.

  • Pro-crastinator on 26/08/2020 - 17:08
    +1

    Door was already faulty - Strata company should have fixed the problem - otherwise, what are the owners paying them for?

    Find evidence of the door being reported to Strata company previously… demonstrate a reasonable time having passed with no action on repairs or rectification.

    Check Essential Safety Measures (ESM's) are maintained in the building. ie. exit signs, fire/smoke doors, fire system maintenance, hose reels and extinguishers have been maintained. If these are not maintained then it shows further evidence of the Strata Co not taking responsibility for essential maintenance. If ESM's are not maintained, then they are in breach of the Occupancy Permit.

    Importantly, if the garage door has an exit sign above it, then it's a designated exit and the door should be maintained every 6 months minimum.

    ESM maintenance is expensive - throw a fistful of stones and hopefully fixing your neighbors car looks like a cheap problem.

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