Today’s question relates to collateral damage when evacuating a building. The scenario I’m asked to consider:

… assumes that a premises has good processes, planning and training in place for fire/evacuation. They have an emergency incident that requires patrons at a hotel to be evacuated away from their primary evac area (a carpark) to the secondary area which is near a roadway. They are conducting a full evacuation of the entire premises, typically evacuating approx 100 people with about a dozen staff to assist. The full evacuation of the building is being conducted because of an actual fire or real possibility of a fire being present and they have deemed that it is safer for all patrons to be removed from the danger. They are directing people to that secondary area because the fire is blocking safe egress to their primary area.

When evacuating to their secondary area a person is hit by a car. Could they be at all liable for the persons injuries as they were the ones directing the person to that area?

The problem with predicting answers to questions like this is that it always depends on ‘all the circumstances’ and one can never give a guaranteed answer; but even with that disclaimer the answer is most likely to be ‘no’.

First the scenario says the secondary area is ‘near’ (not across) the road.  If it’s near the road I fail to see how there could be any suggestion of liability if the person steps off the road into the path of a car. I cannot imagine how that could be the fault of the hotel or its staff.

If the secondary area is across the road then there would be a question of whether that was a resonable area to designate as a secondary area and that would turn on what alternatives may have been available and what size of road it is. It’s a 6 lane divided road, asking people to cross the road may be negligent, but assume it’s a 2 lane (one in each direction ) suburban street.

With a fire in the building and/or people evacuating it may be prudent, if resources permitted, to have a warden in a high-viz vest shepherding people across the road and/or warning drivers not only of the fact that there are pedestrians on the road but also that there’s a fire in a building on the side of the road (and no, you don’t have to be a ‘traffic controller’ or the like; waving down a driver and saying ‘can you just wait here there’s a fire in that building’ is not unlawful (see my comment after the post Assisting NSW police with road closures (January 7, 2014 where I said:

Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold up in Glenrowan.

So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past.

But, putting that issue to one side, directing a person to an evacuation centre across the road is not directing them to run across the road without looking and, most fundamentally, a driver has an obligation to look out for and not run over pedestrians. Everyone has a duty here and the fact that people are being evacuated does not remove their obligation to take reasonable care of their own safety and the duty of a car driver on the road not to hit them.

There is then the practical issue that compensation for car accidents is run of the mill day to day grind for many law firms. They know how to do it. People injured in car accidents recover under the state or territory compulsory third party insurance scheme. Every car, registered or not, is covered by the scheme. The scheme sets out how claims are made, what compensation is payable without proof of fault and what claims require proof of fault (see for example Motor Accident Injuries Act 2017 (NSW)). They set up an insurer who in turn is very familiar with the process. Why would anyone look to any other party when the driver can be identified, and the claim process is straight forward?

An injured person may want to find another defendant to try and avoid limits in personal injuries compensation claims but then they face limits under other laws such as the various Civil Liability reforms of the early 1980’s.  The likely person who might raise it would be the CTP insurer that may have to pay out and they may try to find another defendant to share the cost. But losses are apportioned so even if someone said ‘we’ll the staff were 10% responsible’ that’s not a lot of money for a lot of effort to recover it.

On the other hand if the fire itself was negligently caused, a plaintiff may establish that there injuries were due to, and part of, the fire. In that case they could sue the premises for their negligence which may, depending on the jurisdiction, be worth more than, but be a more complicated action, than an action against a car driver.

Could the staff be liable? Not a chance – see Vicarious liability for the actions of fire wardens (March 5, 2016).

Conclusion

As always, the determination of liability depends on who did what and was what they did ‘reasonable’ in all the circumstances. In the scenario described the person who is most likely to be held to have caused the accident will be the car driver. Drivers are expected to look out for hazards, including surprises such as people on the road and buildings on fire on the side of the road. Equally pedestrians are expected to take care of their own well being which (depending on the size of the fire) may include not running in front of oncoming traffic.  The critical question for the staff managing the evacuation is whether there had been any planning, if the secondary evacuation centre was across the road, on how to warn drivers that there was an evacuation in place.

The risk of liability in the circumstances described would be almost zero (but never say never).