Painters:

Under regulation 46(1)(l) of the Home Building Regulation 2004 (NSW) painters are a category of “residential building work”. Although this may seem somewhat trivial to some people, faulty painting work on a completed residential building (or for that matter a commercial building too) can be the cause of anxiety for a client who intended a certain aesthetic outcome which has not been achieved. Of course, on a more practical level, defects in painting (such as unsatisfactory coating or poor curing of paint) can in the medium to long term lead to more serious defects in the property. This becomes evidence where the paint’s protective properties are damaged or otherwise rendered ineffective. Claims in negligence against a painter may arise from these and similar situations. Some disputes against painters may also included disputes of a contractual nature:

• The scope of the work performed;
• Variations to the work;
• Fees payable;
• charging rates;
• Payment schedules and payment plans;
• Materials used; and
• Other related matters.

Complaints may arise from all of these factors. However, if a person feels that they have a claim against a painter and wishes to sue the painter for defective or negligent work, what must first be gathered is the evidence on which the claim will be based. This may not be a straightforward matter and it is often beneficial to obtain legal advice first before taking any steps to escalate the dispute.

Because of the nature of the profession, disputes with painters which are taken to court may require support from an expert witness. The expert witness is usually somebody who is an expert in the field and who can proffer a view that carries greater weight than what is referred to generally as a lay witness (or someone with no specialist technical knowledge in the trade). Obtaining expert reports can be timely and it is advisable to retain legal assistance so that the preparation of any case against a painter can be conducted efficiently and economically.

Of course, a claim of negligence against a painter must be grounded in the proof that a relevant professional standard has been breached by the painter who is being sued, or who is likely to be sued. The professional standard, or what is called the “duty of care” will depend on a standard particular to the industry in which the allegation of negligence is being made. This threshold at which the public expects the professional or tradesman to conduct his affairs can be inferred from the standards adopted by the professional or trade association.

Master Painters Australia is the peak representative body for painters in Australia. The organisation’s two main objectives include: “assisting the interests of its members in a business sense, and ensuring that the professional standards of the industry are upheld.” [1] The Master Painters Association has adopted a Code of Ethics which addresses industry standards applicable for professional painters. The Code is broken down into the following major principles:

• Obligations of the Painting Contractor;
• Obligations to the Client;
• Obligations to Fellow Association Members;
• Obligations to Employees; and
• Obligations to the Association. [2]

The laws relating to duty of care and the standard to which the responsibility of a painter must adhere can change over time just as community expectations of these things change over the years. For this reason, although the Code of Ethics may seem to be a relatively simple document, the way in which it is interpreted is not necessarily an uncomplicated affair. If you are contemplating suing a painter, or if you are a painter who is being sued by someone, it is advisable that you speak to an experienced tradesman solicitor as soon as practically possible. One of our trade lawyers would be more than happy to discuss your matter with them.

If you need assistance and advice with a painters’ negligence dispute you may wish to contact our firm by telephone on (02) 9233 4048 or email us at info@navado.com.au and make an appointment to see one of our solicitors.

[1] “About Us” Master Painters Australia website (undated) <www.masterpainters.org.au> (accessed 22 November 2013).

[2] Code of Ethics (Master Painters Australia, April 1991). A copy of this document can be viewed on the Master Painters Australia website which is located on <www.masterpainters.org.au> (accessed 22 November 2013).

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