Unsafe Balustrade Design

We received a letter today from a concerned parent regarding the design of a 1st floor balustrade that features horizontal railing that is very easily climbed by children (and is being climbed!). We have written a number of articles about this situation in the past. The BCA states that these types of balustrades are quite legal up to a fall height of 4m and many builders, designers and architects will use this clause as a defence of any accusation that this design is unsafe (particularly unsafe when children may present). We have been involved in a number of falls from these “legal” balustrades resulting in serious injury. We have issued recommendations on numerous occasions regarding climbable railing and had the same clause thrown back at us. However, OHS Legislation and Common Law, may in same cases, override the BCA in that the Controller of Premises must identify, assess and control risk wherever “practicable”. This may mean going above and beyond any Australian Standards in order to properly control the risk. There have been successful public liability claims against building owners who failed to provide sufficient hand railing on stairs, despite the fact that the existing handrails met building regulations. If you have one of these balustrades and a child climbs it and falls – good luck trying to argue in court that it was safe. I also need to put in reminder that furniture and other climbable objects should be kept well clear of ALL balustrades.

Extract of Letter (edited to remove any identifying contents)

To whom it may concern,

………. I have noticed that some of the houses/townhouses have verandahs upstairs with horizontal bars on them. Now my concern is these properties are no more than 18 months old, and when parents are foolishly allowing their children to access these verandahs and climb the balustrade and sit on the other side of the balustrade, where does the onus for responsibility lie. I have looked at the kids safe website and kept digging further and found the following article:

What are the current BCA requirements for balustrades?

The current BCA requirements are that a balcony balustrade have the following attributes: –

The top of the railing must be least 1 metre (1000mm) from the ground.

Any opening must not allow a 125mm sphere (ie childs head) to pass through. So the vertical components must not be more than 125mm apart.

The gap between the balcony surface to the bottom rail must be no more than 100mm.

For balconies with a fall height of more than 4m there must not be any horizontal or near horizontal elements between 150mm and 760mm above the floor that facilitate climbing.

Now with particular emphasis on the underlined above, I wonder who’s responsibility it is to ensure the safety of the children?

I have contacted xxxxxxxxxxxxxxxxx and they responded with its not their responsibility as nothing would be passed by council approval if its illegal, however these verandas are dangerous and err on the side of illegal based on the above mentioned.

I offer you the address so you may come and assess the situation, as I would hate to find the child or children dead because of a fall from an illegal balcony. I agree the parents should be supervising more, however if they refuse to have their own children’s wellbeing as a priority then someone must look out for them.

I hope that this can be seen as a priority as the death of a child is not a nice thing.