Court of Appeal reapportions liability for Lacrosse apartment tower fire

03 June 2021

In March, we reported on the outcome of the appeal in the Lacrosse dispute. The Court of Appeal recently handed down a judgement on the apportionment of liability which we discuss below.

The Appeal

In March 2021, the Court published reasons in the applications for leave to appeal. All but one of the grounds for appeal were rejected.

The Court accepted the building surveyor’s submission that its failure to query an incomplete description of the ACP in the fire engineer’s report was not causative of any loss. In particular, it was found that the fire engineer knew that ACPs were non-compliant, such that even if the building surveyor had queried the incomplete description with the fire engineer it is unlikely to have resulted in the fire engineer revising the report in a manner which raised concerns about the use of ACPs.

On the basis of the building surveyor’s limited success, the Court of Appeal altered the apportionment of the liability as follows.

The Original Apportionment

  1. Fire engineer - 39%
  2. Building surveyor – 33%
  3. Architect – 25%
  4. French tourist – 3%

The New Apportionment

  1. Fire engineer - 42%
  2. Building surveyor – 30%
  3. Architect – 25%
  4. French tourist – 3%

Reasons for the new apportionment

In arriving at the revised apportionment, the Court stated that it reflected the Court of Appeal’s views as to each parties’ relative responsibility, namely its own assessment of the relative culpability of the parties’ conduct.

Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436T [No 2] [2021] VSCA 122

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