Problem Solving Question

Answer

Determination of whether Stockfans Pty Ltd is liable to Ronald for Negligence in Failure to implement a Proper Safety System

Introduction

            In this case, Stockfans Pty Ltd risks liability for negligence under the Australian law since Ronald may have developed his health problems after a culmination of events that occurred within the mall managed by Stockfans Pty. Initial analyses illustrate that there was duty of care that ought to have been upheld but due to negligence, there was a breach to this duty causing unintended harm. This legal paper uses the Australian laws on civil liability, available through the Civil Liability Act of 2002 and 2008 to determine the existence of negligence and causation, and illustrate liability on either of the parties-specifically, whether Stockfans Pty will be liable to Ronald for negligence.

Facts

            Stockfans Pty Ltd is the appointed operator of the Beldivis Shopping center and the new mall in which it expanded to. The mall contains three key sections, the Beldivis shopping center, supermarket and a food court. Based on its design, the food court which houses several eateries, has three exits that also serve as entry points. One of the entries links the food court to the other sections and the mall. This entry is fitted with two fire safety doors. The fire safety doors are clearly labeled and have warnings to emphasize the need to keep the doors always shut. Greg, a tenant at the eatery put two stoppers on both doors to ensure they remained open while Victor, the guard at the door did not take any action to this effect. Later, fire emerges from Greg’s eatery and the smoke spreads fast to the other sections of the mall.  Ronald, a cleaning staff employed by Stockfans Pty Ltd inhales the smoke on the day of the event. His condition worsens later due into a respiratory problem due to his genetic makeup and thus the need for him to use a ventilator for breathing. Stockfans fits magnetic fire safety doors later after the incident.

Identification of the Laws

            Based on facts regarding this case, the main law that would be applied towards understanding whether Stockfans is liable to Ronald is the Australian Law of Torts. The law of tort, or simply a tort, refers to a civil wrong which upon confirmation of its existence would allow the innocent party to seek compensation for damages, mainly in monetary terms[1]. Torts were introduced in Australia in 1788 as part of the English common laws, and they have continued to cover other civil wrongs like defamation, nuisance, negligence, and trespass to goods, to land and persons[2]. In this case, negligence as a civil wrong is evident and thus the need to understand how the Australian law on negligence is applied. Stewart and Stuhmcke state that negligence as a tort is considered to have occurred in case the plaintiff was owed a duty of care by the defendant but, the defendant breached this duty leading to damage[3]. In this regard, the three key elements in this tort are: a duty of care, which is a reasonable level of care owed to the plaintiff by the defendant at the time of negligence; a breach of the duty of care due to the defendant’s inability to uphold the expected level of care; and damage to the plaintiff as a result of the defendant’s negligence[4].

            The Civil Liability Act in Australia has been amended severally and its jurisdiction has also continued to be altered in different states based on emerging issues from the cases faced in the Australian courts. Some of the most recent and popular amendments to the Civil Liability Act of 2002 include: Section 5(B)(1) which states that one is not negligent by not taking actions to prevent the risk of damage unless, “the risk was foreseeable, and not insignificant”, and a reasonable person would have taken those precautions, in similar circumstances and when in the person’s position. Section 5(B)(2) adds that, in order to determine that similar actions would have been taken towards ensuring precaution by a reasonable person, towards preventing harm, specific aspects regarding the situation must be considered. These aspects are listed by Civil Liability Act (2002), as follows: first, the probability that there would be harm if no level of care was shown; second, the potential seriousness of damage (harm); third, the burden of prevention towards eliminating the risk of damage, and; fourth, the social utility or relevance of the activity that creates the risk of damage. The application of these laws will therefore depend on the facts in the case, and therefore, these laws are only supposed to be used as guidelines to the determination of wrong-doing[5].

Application of the Laws

            In this case, the defendant is Stockfans Pty, a retail management company, managing the Beldivis shopping center and its mall. The organization is accused of negligence that led to harm on Ronald, the plaintiff who was is an employee of Stockfans Pty. However, as aforementioned, negligence is only considered to have occurred if three elements, duty of care, breach of duty and damage or harm are evidently proven to have occurred. To begin with, since Stockfans Pty Ltd is the lead manager of both Beldivis shopping center and the shopping mall in which the shopping center is located, it has the highest duty of care to the building and its occupants. The law on the duty of care adds that the level of care offered has to be reasonable, especially at the time when the defendant was accused of being negligent[6]. A good example of the defendant’s efforts towards upholding duty of care is installing fire doors as guided by the Australian Standards on Building Safety. These doors also had precautions to guide and maximize their uses. Although the location of these doors was contested as non-strategic to the businesses at the eatery side; it was critical to have the doors at the boundary between the eatery and the rest of the building. This design was strategic to the building as a safety concern, and as guided by the Australian building standards.

            Unreasonable care was however notable when Stockfans failed to take action regarding the communication from Sally, about the doors remaining open, causing difficulty to read the warnings on it. Although Stockfans’s management could argue that they did not find any reason to investigate the matter since they had not received a similar report from their security guard, Victor, it was imperative for them to confirm the allegation as raised by Sally. This is because they owed their customers, staff and stakeholders reasonable care in terms of safety and well-being while in the business premises. This is guided by the findings of the Chan vs Acres [2015] NSWSC 1885 in which, Chan was the plaintiff who had bought Mr. Acres’s house after he had just extended it with the support of subcontractors[7]. After moving into the house, Chan realized that there were several defects and “sued Mr. Acres, the pre-purchase inspector, the engineer and the contractor”[8]. In the final judgement, the judge acknowledged that Mr. Acres owed Chan the duty of care and was supposed to ensure reasonable standards of the building prior to handing it over to Chan. In the same note, Stockfans had a responsibility to its customers and stakeholders, and thus, concerns regarding safety raised by Sally should have been taken seriously.

            By failing to follow-up and ensure that the doors were kept closed or fitted with the magnetic systems to allow their release during fire, the defendant breached the duty of care and increased the risk of harm to the building occupants. Although the Australian Standards on building and fitting safety doors had been complied to in the initial phase, by having the doors in place, the emerging challenge of lack of faster access to the eatery should have caused the implementation of better standards. In this regard, the standards were partially implemented. Considering the Chan vs Acres [2015] NSWSC 1885, the engineer was not found liable to the plaintiff since he had no guarantee that the sub-contractors working with Mr. Acres were willing to apply and comply with all structural requirements. For this reason, it would be difficult for Stockfans to transfer the duty of care to other parties like the door installation company as they fitted the door required and it operated as it was required. Stockfans can however defend themselves by arguing that they would expect such an anomaly to be communicated to them by Victor but this may not be adequately convincing since Sally sent an email to the organization and there was no response, illustrating that the email may have been ignored.

            Due to this breach of duty, when the building caught fire, the smoke spread faster to other parts of the building reaching Ronald who developed a respiratory condition. Additionally, this condition was as a result of his genetic make-up and got worse whenever he inhaled smoke. It is therefore important to establish the causal connection between the harm and the breach of duty, and the foreseeability of the damage. According to the Australian Building Standards, the fire door safety is purposely used to prevent smoke from spreading to other sections of the building in case of fire in one section of the building. The need to prevent the spread of smoke is guided by the fact that in case the smoke spreads, it prevents visibility thus limiting the possibility of escaping, smoke can also choke the people upon inhalation leading to suffocation, contributes to other health conditions among the occupants thus, limiting their ability to help themselves during the fire, among others[9]. Smoke in the mall would therefore directly cause any or all of these challenges. Notably, these challenges are mainly as a result of the immediate exposure to smoke. In this regard, based on the Civil Liability Act (2002) Section 5(B) part (1), Stockfans was negligent as it new the risk of smoke in the facility and thus fitted the door in the first place. The risk of smoke causing harm was foreseeable, significant and any reasonable person in Stockfans’s position would have taken Sally’s message seriously and taken action to prevent the risks.

            The genetic make-up of Ronald also worsened his condition. This could however be used by the defendant to eliminate the need for compensation to the plaintiff by the defendant. The defendant could argue that Ronald’s condition could have still occurred even if the precautions would have been taken. However, this argument would be insufficient to prevent liability on Stockfans’s part since, Ronald was a staff within the mall and thus would always be at risk regardless of his internal issues. Stockfams had to guarantee safety regardless of the internal issues of the staff and the customers as any reasonable person would. The likely seriousness of the damage was also known when the probability of harm was considered when applying the fie door safety. Stockfams can therefore not deny the probability of the harm getting worse as any reasonable person would be able to tell the extreme consequences of the smoke in such a facility. Based on the Civil Liability Act (2002) Section 5(B) part (2), the burden to take responsibility should also be identified and explained in terms of what any reasonable person would do. In this case, this burden was entirely on Stockfans as people within the facility are not expected to state their health status or conduct a medical review before they visit or wok in the mall. Any reasonable person would therefore b expected to ensure the best quality safety standards by bearing the full burden of the mall’s safety.

[1] Kit Barker, Cane Peter, Lunney Mark, Trindade Francis. The law of torts in Australia. Oxford (University Press; 2012).

[2] John Fleming, G. The law of torts. Law Book Company for New South Wales Bar Association; 1987

[3] Stewart PE, Stuhmcke AG. Australian principles of tort law. The Federation Press; 2009.

[4] Kit Barker, Cane Peter, Lunney Mark, Trindade Francis. The law of torts in Australia. Oxford (University Press; 2012)

[5] Fleming John, G. The law of torts. Law Book Company for New South Wales Bar Association; 1987

[6] Barker Kit, Cane Peter, Lunney Mark, Trindade Francis. The law of torts in Australia. Oxford (University Press; 2012).

[7] Moray and Agnew Insurance Law. Duty of Care in Residential Building Cases. Legal Directions. Moray and Agnew Insurance Law. January 21, 2016.

[8] Moray and Agnew Insurance Law. Duty of Care in Residential Building Cases. Legal Directions. Moray and Agnew Insurance Law. January 21, 2016.

[9] Armin Wolski, Dembsey Nicholas A, Meacham Brian J. Accommodating perceptions of risk in performance-based building fire safety code development. Fire Safety Journal. 2000 Apr 30;34(3):297-309.