Occupier’s duty to firefighters and rescuers

Charter Hall Real Estate Management Services (NSW) Pty Limited v State of New South Wales [2020] NSWCA 26

The New South Wales Court of Appeal (NSWCA) upheld a decision of the New South Wales Supreme Court (NSWSC) allowing a firefighter’s employer to be indemnified by the occupier of the building where the injury had occurred.

The Court handed down a detailed judgment that provides a useful analysis of an occupier’s duty of care to firefighters and rescuers.

Material Facts

Charter Hall Real Estate Management Service (NSW) Pty Limited (Appellant) challenged a District Court decision ordering that the State of New South Wales (Respondent) be indemnified under s 151Z(I)(d) of the Workers Compensation Act 1987 (NSW) for payments made to an employee, Mr Mark McMullen, in respect of an injury suffered by him in the course of his employment.

Mr McMullen was a member of the Fire Brigade and an employee of the Respondent. On 22 January 2007, Mr McMullen responded to an alarm at the Metro Plaza Shopping Centre. There he verified that the incident was a false alarm and was subsequently injured by knocking a locking bar when descending a ladder used to access the roof where the alarm was triggered.

The Appellant was one of two joint managers of the shopping centre and had entered this role on 1 January 2007, some three weeks prior to the incident. The Appellant conceded that it owed the duty of an occupier of the shopping centre.

Grounds of Appeal

1. The primary judge erred in determining that the Appellant had actual knowledge of the risk harm. (s5B(1)(a) Civil Liability Act 2002).
2. The primary judge erred in failing to determine whether the risk of harm was not insignificant. (s5B(1)(b) Civil Liability Act 2002).
3. The primary judge erred in finding that the Appellant breached any relevant duty of care in failing to take reasonable precautions. (s5B(1)(c) and s5B(2) Civil Liability Act 2002).
4. The primary judge erred in his finding that a reasonable person in the position of the appellant would have taken the precaution of getting a “mechanism” from a “hardware store” and have it installed by a tradesman.
5. The primary judge erred in finding that the Respondent had not breached its duty of care to its employee, Mr McMullen.
6. The primary judge erred in assessing (in the alternative) that the Respondent’s contribution on liability as only 10 per cent, and erred in failing to give any reasons for doing so.
7. The primary judge erred in finding that McMullen was not guilty of contributory negligence.
8. The primary judge erred in assessing (in the alternative) that McMullen’s contributory negligence as only 10 per cent, and erred in failing to give any reasons for doing so.

Judgment

Evidence was given by Mr Willox, a supervisor of security and cleaning staff, who had worked at the centre for about 15 years. He stated that if the access door to the roof was not latched when it was open it was possible for the wind to blow the door shut and dislodge the metal locking bar, causing it to fall. Mr Willox stated that this happened to him on two occasions and he reported both incidents to centre management. On the second occasion he also made an entry in an incident or security book maintained by Reflections Group. Mr Willox’s evidence was not challenged.

The Court found that the incidents could have occurred between 2001 and early 2008 and Ms Chapman, who was employed by the Appellant as a supervisor for centre management at the time of Mr McMullen’s injury, was privy to at least the second incident. The Court agreed with the Respondent’s submission that the knowledge acquired by Ms Chapman when she was employed by some other entity before the Appellant took over the management agreement, must, by extension, become the knowledge of the Appellant once they employed Ms Chapman. The Court held that the first ground of appeal failed, and the Appellant had actual knowledge of the risk of harm.

The Court considered the Appellant’s observation that the Respondent did not call Ms Chapman to give evidence and found that prima facie, as Ms Chapman was the Appellant’s employee at the time of the injury, it was the Appellant who would be expected to have called her. Moreover, even if due to the passage of time Ms Chapman was in neither party’s camp, no Jones v Dunkel (1959) 101 CLR 292; [1959 HCA 8 inference arose against the Respondent for not calling Ms Chapman to give evidence.

The Court rejected the Appellant’s second ground of appeal, holding that the primary judge did determine that the risk of harm was not insignificant. The Court held that he had correctly found that the risk involved a risk of death or serious injury. The Appellant had submitted that the risk was insignificant because it was obvious to someone keeping a reasonable lookout for his own safety. The Appellant submitted that the obviousness of the risk is relevant to the assessment of the significance of the risk, having reference to the cases of South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA approved in Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA and applied in Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA. The Court distinguished the matter from those cases cited by the Appellant and moreover, held that at trial the Appellant had not suggested to Mr McMullen that the risk of injury was obvious, but rather, had argued that there was no risk.

The Court held that the reference in the third ground of appeal to “any relevant duty of care” was misplaced. The Appellant did not challenge the primary judge’s finding that it owed Mr McMullen the duty of care of an occupier. The Court held that the Appellant owed a duty to take reasonable care to avoid risk of injury to entrants and the extent of this obligation would take into account the exercise of reasonable care by the entrant.

The fourth ground of appeal elaborated on the third ground by asserting that the primary judge erred in finding that a reasonable person in the position of the appellant would have taken the precaution of getting a “mechanism” from a “hardware store” and have that mechanism installed by a tradesman. The Appellant relied upon a statement made by Mr Paul Collis, the Station Officer at the time of Mr McMullen’s injury, who attended the incident but did not witness it. The Appellant submitted that because the risk of harm was not apparent to Mr Collis it should be found that it was not foreseeable. However, the Court noted that there was no evidence that Mr Collis was aware of any prior incident of the locking bar having fallen on a person, or that he knew that the locking bar could be so insecure that it could fall from vibration caused by the door being blown shut.

Moreover, the Appellant stressed that it had only assumed the obligations of manager three weeks before the injury.

Considering this, the Court found that the Appellant’s entering into a management agreement that was in force on the date of the incident meant that it was obliged to carry out due diligence to ensure that it could comply with its contractual obligations to the Principal, and this informed its duty of care to Mr McMullen.

In addition, the Court held that the primary judge’s finding that a “mechanism” to prevent the bar inadvertently falling could have been simply obtained was correct. As a matter of fact, at trial the Appellant had conceded that it was common sense that one way to stop a bar hinged at one end from falling is to have some form of locking device at the top. Accordingly, the Court rejected the third and fourth grounds of the appeal.

Considering the fifth ground, the Court held that the primary judge was correct in finding that the Respondent did not breach its duty of care to Mr McMullen as his employer. The Appellant submitted that it was clear from Mr Collis’ evidence that he had visited the area in question, was familiar with the locking bar and, to him it presented no danger. The Appellant submitted that, in having this knowledge, the Respondent, as Mr McMullen’s employer, was on notice of that particular danger, but did nothing to protect Mr McMullen. The Court held that although Mr Collis was the Respondent’s employee, the allegation that the Respondent breached its duty to Mr McMullen depended upon the Appellant establishing that Mr Collis failed to do something which he ought to have done. The Court found that the Appellant had not done this. For these reasons the Court rejected grounds five and six.

The Appellant submitted that Mr McMullen was fully aware of the locking bar and that contributory negligence should have been assessed at 20 per cent. The Court found that it was not put to Mr McMullen in cross-examination that he was careless in knocking the bar when descending the ladder. Moreover, Mr McMullen was fully kitted out with the required equipment. The Court held that his accidentally knocking the locking bar was accidental inadvertence not amounting to contributory negligence.

On this basis the Court rejected grounds seven and eight. In conclusion, the Court unanimously dismissed the appeal with costs.

Implications

There are a number of poignant features in this decision. Firstly, knowledge of an employee gained before the commencement of the employment in question may be imputed. Secondly, an occupier’s duty of care is not lessened by the mere fact that they had held such position for a short amount of time.

Furthermore, this case illustrates that an occupier’s duty of care is not diminished in a situation where an injured worker is a firefighter or rescuer.

If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).