In Charter Hall Real Estate Management Services (NSW) Pty Limited v State of New South Wales  NSWCA 26 (25 February 2020) the NSW Court of Appeal upheld a decision of the NSW Supreme Court finding that the defendant, as occupier of a building that had negligently exposed a firefighter to injury, was liable to indemnify the Brigades’ workers compensation insurer.
The incident occurred on 22 January 2007 (ie 13 years before this judgment) when NSW Fire Brigades (as they then were) were called to an alarm of fire at a shopping centre in Orange in the NSW Central West. His Honour, White JA said (at [6)]:
Mr McMullen was injured when he attended the shopping centre in response to the fire alarm. The fire panel indicated that the alarm was triggered from an air-conditioning unit on the roof of the shopping centre. Access to the roof was obtained through a roof access door. A security guard accompanied Mr McMullen and the other fire-fighter to the roof access door. The access door was at the top of a ladder. The ladder was variously estimated to be about eight feet, nine to ten feet, or 12 feet high. It had a metal locking bar in front of it described in more detail below. The bar was raised and the door opened to permit Mr McMullen and his co-worker to reach the roof to check the air-conditioning unit. Mr McMullen was satisfied that there was no fire in the air-conditioning unit and that it was a false alarm. When leaving the roof the other fire-fighter descended the ladder first. Mr McMullen followed. The primary judge described the circumstances of the injury as follows (at ):
“Before descending, Mr McMullen faced the ladder, put his foot on the top rung and held onto both sides of the ladder. On his way down Mr McMullen felt himself knock the locking bar with his elbow and then something hit his neck. He stopped where he was and felt pain in his neck. He realised that he had been struck by the locking bar. He took hold of the locking bar, pushed it back up into place and continued down the ladder. Mr McMullen described the pain as ‘pretty severe’ and gave evidence that he had never felt pain in his neck like that before.”
The judge in the District court found that the defendant in that court, the appellant in the Court of Appeal, Charter Hall Real Estate Management Services had breached the duty of care it owed to Mr McMullen. At  White JA said:
… the primary judge found that the appellant, through one of its employees, a Ms Chapman, had actual knowledge of the risk of injury posed by the absence of any restraint to prevent the locking bar from falling onto a person using the ladder to access the door to the roof of the shopping centre. That was because a Mr Willox, who was employed by a third party to act as a security guard for the shopping centre and had performed that task for some 15 years, had reported to Ms Chapman on two occasions that the locking bar had fallen on him. The primary judge found that the risk involved a risk of death or serious injury and it was possible that the locking bar could fall onto a person using the ladder resulting in a fall of 12 feet to the floor at the bottom of the ladder. It was reasonably foreseeable that the locking bar could be disturbed by someone dislodging it from its resting place with a body part or an item of clothing. Simple and inexpensive precautions were available to avoid the risk of harm. The primary judge said (at ):
“A mechanism to secure the locking bar when it was leaned against the door jamb could have been obtained from a hardware store and installed by a tradesman in less than 30 minutes. A sign warning of the risk and advising that the locking bar should be held whilst descending the ladder could have been affixed in the area of the ladder at minimal cost.”
In simple terms the appellant argued that the trial judge was wrong in finding that there had been a breach of duty by the appellant and also for finding that there had been no negligence by either NSW Fire Brigades and fire fighter McMullen (see ).
White JA upheld the finding that the appellant had actual knowledge about the risks associated with the access door. There were at least two prior reports of the locking bar becoming dislodged and but for sheer good luck, not striking a person descending the ladder (-). Even without those actual events, the risk was clear. The door needed to be latched open otherwise there was a risk it would blow closed and dislodge the locking bar. The last person going down the ladder had to unlatch the door so it could be closed but then was at risk of the door blowing shut and the locking bar falling. If the locking bar did hti a person on the ladder there was a risk of them falling the 12 feet to the ground. The appellant ‘… ought to have known that the condition of the ladder, access door and locking bar was dangerous’ ().
With respect to alleged contributory negligence by firefighter McMullen, White JA said (at -):
The appellant submitted that Mr McMullen was fully aware of the locking bar. He said he had undertaken a risk assessment on both the way up and the way down and that the locking bar fell only because he knocked it with his elbow. The appellant submitted that contributory negligence should have been assessed at 20 per cent.
It was not put to Mr McMullen in cross-examination that he was careless in knocking the bar when descending the ladder.
Mr McMullen was fully kitted out with breathing apparatus, helmet and sledge axe or Halligan tool … His accidentally knocking the locking bar (presumably at its lower point where it obtruded beyond the vertical towards the ladder) was accidental inadvertence not amounting to contributory negligence…
Macfarlan JA and Simpson AJA agreed with White JA. The appeal was dismissed with costs.
Although not discussed in these terms, the case confirms – again – that there is no equivalent of the ‘firefighters’ or ‘firemens’ rule in Australia (see Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019)’ see also see http://www.firelawblog.com/category/firemens-rule/). To quote from the decision the subject of that earlier post ([Name Redacted] v AAI Limited  QSC 7, at ):
The authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer [or fire fighter] does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).
In this case, as the court noted (at ):
Section 10 of the Occupation Health and Safety Act 2000 (NSW) as in force on 22 January 2007 required that a person who had control of premises used by people as a place of work must ensure that the premises were safe and without risk to health. Officers of a fire brigade were called to the premises as a place of work.
The fact that firefighters were there to do dangerous work did not relieve the defendant of their obligations. The premises were unsafe.
It is true that this was not Mr McMullen suing the appellant. The plaintiff in the District Court was the State of New South Wales seeking to recover the money that it had paid to meet its workers’ compensation obligations. But the state was suing the defendant in negligence and it could only win that case if it could show that the defendant had breached its duty of care to the injured worker – not that the defendant/appellant owed some separate duty to the employer not to expose them to workers’ compensation liability. In effect the State of New South Wales had to run the case the injured worker could have run should he have elected to do so (see ).
The case confirms that the occupier of premises where a fire or emergency service is called is under a duty to take reasonable care to ensure the premises are safe. In this case it was not a fire or the risks of firefighting that were in issue, it was the design of an access door that the firefighters and others had to use to access the roof. The design created its own dangers which the management had been warned about and which was obvious in any event. Their failure to ensure the access to and egress from the roof was safe was negligent.
As the negligence caused injury the negligent tortfeasor was liable to make good the losses and it is irrelevant that the person injured was a firefighter or rescuer.