Our client (Stockfans) owns and operates a shopping centre in Beldivis. Greg, a tenant at the client’s shopping centre, was concerned that the difficulties in accessing the food court via the fire doors were affecting his business, so Greg opened one of the double doors and placed a wooden wedge under it. After Greg noticed an increase in shoppers, he wedged open the other fire door. Three months after the food court opened, fire quickly spread throughout the food court. Roland, a cleaner employed by Stockfans was at work in the shopping mall when the fire broke out. The smoke spread to the shopping mall much faster than it would have if the fire doors in the food court have been closed. Ronald suffers from smoke inhalation because of the fire. Roland has a rare genetic condition which results in the smoke inhalation causing a severe respiratory condition meaning that he must continuously use a ventilator to help him breathe.
It is likely the District court will determine that our client is liable in damages to the Plaintiff in action in negligence against Stockfans based upon the personal duty of care owned by an employer to employee.
- Duty of care
To determine if Stockfans will be liable to Ronald in negligence, duty of care must be established. It was held in Sullivan v Moody that a defendant will only be liable in negligence for the failure to take reasonable care to prevent a certain kind of foreseeable harm to the plaintiff, in circumstances where the law imposes a duty to take such care. It is likely, the defendant Stockfans is liable at the duty stage to the plaintiff as Stockfans should have taken reasonable care by installing magnetic locks which release when the fire alarm is activated, the carelessness of the defendant has caused the smoke to spread to the shopping mall faster that it would have if the doors had been closed resulting in injury to the plaintiff. It was held in Mathews v Kuwait Bechtel Corporation an employment contract contains, as a matter of law, an express or implied term requiring the employer to provide a safe workplace. The plaintiff is employed by the defendant. Therefore Stocklands owes the plaintiff a duty of care, it was held in Bankstown Foundry Pty Ltd v Braistina that a failure to provide a safe workplace will be grounds for an action for breach of contractual duty.
The element of breach is concerned with the nature of the defendants conduct. For the defendant to be liable in negligence s5B(1)(2) of the Civil Liability Act must be satisfied. In S5B(1)(a) the element requires the risk to be foreseeable and the law has deemed that only certain risks should be protected against. It was held in Wyong Shire Council v Shirt that a risk which is not far-fetched or fanciful is real and therefore foreseeable. Regulations governing safety within Australia requires fire doors to be either kept closed or held open with a mechanism which automatically releases when the building fire alarms are activated, therefore the risk of keeping the fire doors wedged open is foreseeable and not far-fetched or fanciful. In S5B(1)(b), a defendant will not be liable if the risk of harm was insignificant. In Drinkwater v Howarth it was held that a risk which is much more than far-fetched or fanciful may not differ materially from a risk which is not insignificant. Therefore, not insignificant is intended to indicate a risk that is of a higher probability, but not so high. It is likely the district court will determine that there is a significant risk by keeping the fire doors open to a food court, as the kitchens in the food court consist of flammable material and if a kitchen caught alight, a fire can spread quickly throughout the food court to other areas of the shopping center much faster than it would have if the fire doors in the food court has been closed.
In s5B(1)(c) and (2), it must be determined if a reasonable person in the defendant’s position would have taken those precautions. A reasonable person is defined in Papatonakis v Australian Telecommunications Commission as the hypothetical person on a hypothetical bondi tram. The court is likely to determine a reasonable person would have taken those precautions because it is likely that a reasonable person may concluded that the risk was foreseeable as a visitor of the food court, Sally expressed concerns that the fire doors being wedged opened posed a safety risk and sent an email to Stockfans advising them of the safety risk. Also, shoppers felt that the doors were supposed to remain closed and that they should not access the food court or corridor at all via the fire doors.
In s5B(a), the probability that the harm would occur if care were not taken must be determined. It was held in Bolton v Stone to satisfy this element the risk must be other than extremely small. It is common knowledge that the kitchens in a food court would have flammable material, and the risk of flammable material getting caught alight is other than extremely small. In S5B(b) the likely seriousness of the harm must be determined. The purpose of fire doors is to provide a barrier against the spread of smoke and fire from one fire zone to another, keeping both fire doors wedged open increases the likely seriousness of harm as the facts suggest that the smoke spread to the shopping mall much faster than it would have if the fire doors in the food court has been closed.
In 5B(2)(c), the burden of taking precautions must be determined. In Caledonian Collieries Ltd v Speirs the plaintiff argued the defendant was negligent in failing to install catch-points on the railway line that would have derailed the railway truck and prevent the accident, the defendant subsequently installed catch-points to prevent similar events from occurring. Similarly, since the fire, Stockfans has installed fire doors held open with magnetic locks which release when the fire alarm is activated. It was determined by the High Court in Caledonian Collieries ltd v Speirs that the subsequent installing of the catch points could not be regarded as admission of guilt by the defendant but could be considered as evidence that the installing was not a significant burden of the defendant. Similarly, it is likely the district court will determine installing magnetic locks by Stockfans was a reasonable precaution against the risk of injury, and it would not have cost a significant amount of money, they could be quickly installed with minor interferences to the operation of the shopping center.
In 5B(2)(d), the social utility of the activity that creates the risk of harm must be determined. In E v Australian Red Cross it was held that the court could only uphold the plaintiff’s claim that the defendant were negligent in failing to install magnetic locks which release when the fire alarm is activated if it was satisfied that a prudent person in the position of the defendant would have determined that installing magnetic locks outweighed the difficulties. The court may determine the element is satisfied as the defendant have failed to follow Australian Standards.
To determine that the fault of a person caused harm, the following elements of s 5C(a) and (b) of the Civil Liability Act needs to be satisfied. Factual Causation involves a question of historical fact as to how particular harm occurred. Applying the necessary condition test, factual causation can be established. In Adeels Palace Pty Ltd v mounbarak it was held that factual causation is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred? Therefore, but for the negligent act of wedging open both fire doors caused the smoke spread to the shopping mall much faster which caused harm to the plaintiff. In s 5D the issue of causation requires a plaintiff to prove what would probably have eventuated had the defendant’s negligence not occurred, which is the smoke would have travelled much slower if the fire doors were closed and the plaintiff would not have been injured by the smoke.
Under the Civil Liability Act, the scope of liability in s 5C(b) must be determined. It was held in Wallance v Kam that the scope of liability involves a normative question as to whether legal reasonability for that particular harm occurring in that way should be attributed to a particular person and the two common law mechanisms for dealing with the scope of liability that must be satisfied is Novus Actus Interveniens and Remoteness.
It was held in Sullivan v Moody that a defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a certain kind of foreseeable harm to the plaintiff, in circumstances where the law imposes a duty to take such care. The defendant failed to take reasonable care to ensure the fire doors would close on its own if the fire alarms were activated. The defendant’s failure to install self-closing mechanisms for the fire doors that activate when the fire alarms are triggered caused the smoke to spread to the shopping mall much faster than it would have if the fire doors in the food court had been closed causing injury to the plaintiff. It is likely the District court may determine that our client is liable in damages to the plaintiff.
 Sullivan v Moody (2001) 207 CLR 562
 Matthews v Kuwait Bechtel Corporation  2 QB 57
 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
 Civil Liability Act 2002 (WA)
 Wyong Shire Council v Shirt (1980) 146 CLR 40
 Drinkwater v Howarth  NSWCA 222
 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
 E v Australian Red Cross (1991) 27 FCR 310
 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 (HCA)
 Wallace v Kam (2013) 250 CLR 375