Collapsing walls and building regulations
The insured owned an industrial building in Vryheid which was surrounded by a boundary wall. In February 2007 a storm was experienced with high winds reaching 91,2 km/h which caused the boundary wall of the insured’s property to collapse. The wall had been constructed approximately eight years prior to the loss.
A claim was made against the insurer for the cost of repairing the wall. The insurer rejected liability for the claim on the grounds that the wall suffered from defects in design and construction and in particular the wall, which was constructed of concrete blocks to a height of 2,6 meters, did not comply with the National Building Regulations in regard to wall thickness, height or pier spacing. The consulting engineer who inspected the wall on behalf of the insurer concluded that the collapsed boundary wall was structurally inadequate and recommended that the wall thickness be increased and the pier spacing reduced by the introduction of additional piers designed by a structural engineer.
The insured disputed that the policy excluded losses due to and inherent in design or construction and maintained that an insured peril had operated.
The Ombudsman directed the insurer to demonstrate that the alleged non-compliance with the National Building Regulations was material to the loss and that if the wall had complied with the National Building Regulations and/or the design parameters complained of, the wall would not have collapsed.
The insurer referred the matter back to the consulting engineers for consideration and after further investigations and calculation, the consulting engineer furnished a report in which it was concluded “that the boundary wall as originally constructed was structurally inadequate to withstand the horizontal pressure during high winds. If the wall had been constructed in accordance with the National Building Regulations, the loss would not have occurred”.
On the strength of the conclusion reached by the insurer’s consulting engineers, which was not challenged by the insured, the Ombudsman upheld the insurer’s rejection of the claim.
DEFECTS IN CONSTRUCTION
The Insured was the owner of a domestic residence situated in Kensington, Johannesburg. The residence was constructed 50 years previously. 31 years before, the Insured constructed a substantial brick wall around the property. Plans were prepared at the time of the construction of the wall and submitted to the local authority. The plans were approved.
During December 2007 and January 2008 the Insured experienced severe thunderstorms in the area and shortly thereafter the Insured observed that the boundary wall had started to lean over towards the street and was in danger of collapse. There was no evidence of any structural damage to the wall. The Insured thereafter filed a claim in terms of a Home Owner’s Policy for the cost of rebuilding the wall.
The Insurer, upon receipt of the Insured’s claim, appointed an architect and building surveyor to inspect the Insured’s wall and to advise it in relation to the Insured’s claim.
The architect observed that the wall was a free-standing retaining wall 2.8 meters high. He observed that there were no movement joints, weep holes or sub-soil drainage system behind the wall. He also formed the view that the supporting columns were too far apart and that the wall had been constructed in a defective manner. He further concluded that the wall did not comply with the National Building Regulations SABS code 0400. The Insurer thereafter declined liability for the Insured’s claim on the grounds that the loss fell within the specified exceptions to cover which included, inter alia, loss or damage arising out of defective design and/or construction.
The Insured hotly disputed the Insurer’s rejection of the claim and pointed out that the wall was built in accordance with plans passed by the local authority and had been designed by an architect. The Insured pointed out that the wall was in danger of collapse and posed a real threat to school children who walked along the pavement past the wall each day.
When the complaint was referred to the Office of the Ombudsman, the Ombudsman pointed out to the Insurer that as the issue really revolved around the adequacy of the design and construction of the wall from a structural point of view, it would be preferable for the opinion of a structural consulting engineer to be obtained. The Insurer agreed with this view and requested the Ombudsman to appoint an appropriately qualified expert of his choice to examine the wall and to furnish a report.
The Ombudsman thereafter appointed a consulting civil engineer to examine the Insured’s wall. The consulting engineer subsequently furnished a report. The consulting engineer found that the wall in question was 3,3 meters in height above the ground level outside the house and retained approximately 1,42 meters of earth on the inside of the property surrounding the Insured’s swimming pool. The wall comprised a 230 mm single brick wall constructed with intermediary brick piers. He further noted that drainage or weep holes were not provided at regular centers and were only constructed at the corner of the property and at the junction with the neighboring property. The wall exhibited lateral movement of up to 125 mm at the top and could not be considered as structurally stable.
The consulting engineer was of the view that the large volumes of rainfall which were experienced at the end of 2007 were likely to have caused a build-up of saturated soil behind the wall which, combined with wind loads, resulted in its subsequent lateral displacement. A rational design check carried out concluded that the wall would not be able to withstand the combined loads of water pressure from behind the wall, as well as wind loads. The wall was found not to comply with the current building regulations or those which would have been in place at the time the wall was constructed. It was not understood on what basis approval was given for the construction of the wall at the time it was originally built.
The consulting engineer concluded the wall in question did indeed suffer from defects in design and construction and had it been correctly designed and constructed it would have been able to better withstand the forces to which it was subjected.
The Ombudsman, after the considering the view of not only the architect appointed by the Insurer but the report of the independent consulting engineer, upheld the rejection of the Insured’s claim by the Insurer on the grounds that the Insurer had established, on a balance of probability, that the loss fell within the ambit of the exception to the policy.