Recent changes to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) mean that engineers can now be held liable for non-conforming building products, legal experts say.
Changes made to the legislation are aimed at promoting safe design and construction of buildings. Specifically, the QBCC Act was amended to include engineers and architects in the 'Chain of Responsibility' (CoR) for building products, according to Victor Borzillo of Colin Biggers & Paisley Lawyers, Sydney.
"These significant changes were introduced under the Plumbing and Drainage Act 2018 (Qld) (PD Act) on 11 September 2018 and are already in force," he said.
Prior to the changes, engineers were only included in the CoR if they were the building product designer. Now, if an engineer simply specifies a particular product to be associated with the building in their design, they will be deemed a person in the CoR, Borzillo warned, and are in the company of suppliers, installers, manufacturers and architects.
Given these amendments are already in place, Borzillo advised that engineers should familiarise themselves with these provisions to ensure compliance.
"The changes introduced under the PD Act impose serious new obligations on architects and engineers," Borzillo said.
Along with the above changes, there is also a primary duty imposed on persons in the CoR is to ensure "as far as reasonably practicable" that specified building products conform to their intended use. A building product will be considered to be non-conforming if its use in the building would not be safe; it does not comply with the relevant regulatory provisions; or it does not perform or is not capable of performing at the standard it was represented to perform at.
Engineers who specify a building product to be used must pass on all "required information" about the building product to all recipients of the building design. The QBCC Act specifies the required information includes the suitability of the product for each intended use and instructions about how the product should be used in the building.
Under section 74AH of the Act, engineers are also prohibited from specifying a building product for a building that they know - or ought to reasonably have known - is the subject of a recall order, regardless of which state or territory the recall has occurred.
Importantly, if a building product is recalled after the engineer has recommended its use for the building design, engineers remain obliged to inform each person they gave the design to that the product is subject to a recall order and they are to amend the design to remove the recalled product. Alternatively, engineers should provide each of these people with a written notice specifying an alternative building product that can be used and are expected to comply with this duty at their own expense.
And engineers' responsibilities don't stop there. The QBCC Act now requires engineers to provide reasonable help to a "responsible person" in circumstances where a recall order has been issued. A responsible person is defined as being someone who designed, manufactured, imported or supplied the building product; installed the building product; or the architect or engineer who specified that the building product should be associated with the building.
Also, if this responsible person receives a recall order, produces a copy to an engineer, and requests their assistance, the engineer is expected to provide reasonable help. This 'reasonable help' includes ceasing to specify the particular product that the recall order relates to in future designs, and contacting persons that the engineer gave a design specification to in relation to the recalled building product.