Cook v R and M Reurich Holdings Pty. Ltd

[2004] NSWCA 268

CITATION:	Cook v R & M Reurich Holdings Pty. Ltd [2004] NSWCA 268
HEARING DATE(S):	26/07/04
JUDGMENT DATE:	23 September 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Stein AJA at 3
DECISION:	Appeal allowed with costs.
CATCHWORDS:	NEGLIGENCE - fire at Conference Centre - owner seeks help from visitors - duty of care to visitors in case of emergency - request for help - whether reasonably forseeable that visitors will seek to help control fire - whether forseeable that appellant might suffer injury - failure to implement emergency plan - whether breach of duty. (ND)
CASES CITED:	Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hargrave v Goldman (1963) 110 CLR 40 Modbury Triangle Shopping Centre Pty Ltd. v Anzil (2000) 205 CLR 254 at [112]. State of NSW v Napier [2002] NSWCA 402. Tame v NSW (2002) 211 CLR 317.
PARTIES :	Marta Louise Cook (Appellant) R & M Reurich Holdings Pty. Ltd.(Respondent)
FILE NUMBER(S):	CA 40583/03
COUNSEL:	D.F. Graham and R.E. Steele (Appellant) B. Hull (Respondent)
SOLICITORS:	Griffiths Delaney & Co (Appellant) Abbott Tout (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	7557/01
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ

CA 40583 of 2003
DC 7557 of 2001

BEAZLEY JA
SANTOW JA
STEIN AJA

23 September 2004

COOK v. R & M REURICH HOLDINGS PTY LIMITED

Judgment

1 BEAZLEY JA: I agree with Stein AJA.

2 SANTOW JA: I agree with Stein AJA.

3 STEIN AJA:

Introduction

4 This is an appeal by Marta Louise Cook (the appellant) against a judgment of her Honour Acting Judge Gamble dismissing the appellant’s claim against the respondent R & M Reurich Holdings Pty Limited. The appellant had claimed damages for negligence relating to personal injuries suffered in and arising as a consequence of a fire at the respondent’s Conference Centre at Fitzroy Falls on 22 August 1999.

Facts

5 The appellant was a 35 year old woman who taught primary school. She was part of a 50 strong quilting camp at the Fitzroy Falls Conference Centre owned and operated by the respondent. The centre is situated on around 40ha of bushland and comprises a number of buildings. One of them is the managers’ house. This is occupied by the Reurich family, including Mr and Mrs Reurich, directors of the respondent, and their two sons. The Conference Centre includes residential accommodation areas, a games room, a chapel, pool, car parks and an oval. Mrs Cook and the other quilters were staying in accommodation in area 1 some 100 to 200m from the managers’ house. At the managers’ house was an office used in the business and attached to it was a garage, also used in the business, and a flat occupied by one of the sons of the Reurich’s. At about 1.30pm on 22 August 1999 a fire broke out in the attached flat and rapidly spread towards the garage and the managers’ house.

6 At that time the quilters’ camp was finishing and around 10-20 participants had departed. Someone came to area 1 and gave the alarm that there was a fire at the managers’ house. The appellant followed Judith Searle up to the games and recreation room. There they saw Arthur and Ruby Green, who were the camp cooks and also the parents of Judith. Arthur was getting fire extinguishers and handed one to the appellant and another lady. He said, “take it and be careful”. The appellant and another quilter carried the fire extinguisher up to the managers’ house.

7 At the house the appellant saw lots of smoke and flames coming from the attached flat and could hear explosions. Her Honour found that the fire was out of control. There were about 20 people around the house including a large number of the quilters and members of the Reurich family. The appellant squirted the extinguisher at some small part of the adjacent bush, which was alight. There was considerable panic and confusion with lots of yelling. A man took the extinguisher from Mrs Cook and she picked up a hose. She saw Brett Reurich (one of the sons) on the roof of the house and saw smoke coming from the roof of the house. He told the appellant to “keep your hose just here to stop flames”. She directed her hose on to the roof where Brett was. The intent was to stop the spread of the fire to the house itself.

8 The appellant saw a number of the quilting ladies go in and out of the house carrying items of furniture and possessions. Some of them were elderly ladies and the appellant, being one of the youngest felt very responsible, so she started to help too. She helped remove possessions and furniture until one of the ladies said, “the smoke is too thick, we need to leave”. She left the house and at about that time the fire brigade arrived and took charge of the fire.

9 Mrs Cook said that she helped because it was a dangerous situation in the middle of the bush. She wanted to help stop the fire spreading to the house. The appellant said that she had been asked to help with the fire and felt “very obliged” to do that. She had not (nor had the other quilters) been told to go away from the house by Mr Reurich. If she had been told to go to an area of safety she would have obeyed.

10 While in the house the appellant breathed in smoke and later became affected. Later still she suffered a panic attack and collapsed and claims psychological damage including a panic disorder and a post-traumatic stress disorder.

11 Judith Searle’s evidence was that Mr Reurich said to her and other quilting ladies, “Quick, our house is on fire. Come and help us”. A number of the ladies then ran up to the house. Mr Reurich said to them “get a bucket, get anything to help”. Although Mr Reurich denied this, her Honour found that he did ask Mrs Searle for help. Mrs Searle also confirmed the appellant’s evidence of her helping with the fire extinguisher. Mrs Searle said that neither she nor the other ladies were asked to move away from the house. To the contrary, they were asked to help. Only right at the end when all the furniture and possessions had been removed from the house and it was filled with smoke were they told to get out by the Fire Brigade.

12 Ms Susan Gurnhill gave evidence that someone called out that there was a fire in the managers’ cottage and to come and help. She also went to help other ladies get the furniture and possessions out of the house. She mentioned a big lounge being removed from the house by the ladies.

13 Neither Mrs Searle, Ms Gurnhill or the appellant were ever asked to go to a safe area, nor were they told by Mr Reurich to leave the area and not to help. None of them heard Mrs Reurich tell them to stay away from the house because it was dangerous. Indeed to the contrary. Nor did any of them have any knowledge of any emergency plan.

14 Mrs Reurich and Mr Reurich’s evidence was to the contrary. Her Honour had to consider the conflicting evidence between the ladies, including the appellant, and the Reurichs. To some extent she did this finding that Mr Reurich did ask Mrs Searle to help fight the fire.

The Judgment at first instance

15 After reciting some of the evidence of the witnesses, her Honour noted discrepancies between the evidence and, as noted before, accepted Mrs Searle’s evidence over Mr Reurich’s that he asked for help [Red AB 44 V]. This must mean that her Honour accepted the evidence that Mr Reurich asked Mrs Searle and other assembled quilters for help with the fire. To that extent she must, by implication, have found that she did not accept that Mr Reurich asked all of the quilters to go away. I say this because it is mutually inconsistent with her Honour’s finding that Mr Reurich asked for help. That Mr Reurich asked the ladies to leave is also directly denied by them. In my view, the evidence is there to make a positive finding that Mr Reurich did not tell the quilters to leave the premises.

16 After a consideration of the submissions of the parties and of Tame v NSW (2002) 211 CLR 317 and State of NSW v Napier [2002] NSWCA 402 her Honour said:

In view of these statements of the law I am unable to find that the Defendant Company, R & M Reurich (Holdings) Pty Limited, breached its duty of care to Mrs Cook on 22 August 1999. I agree with Mr Graham that as the occupier of the land, operating the Fitzroy Falls Conference Centre as a commercial enterprise, the Company did owe Mrs Cook a duty to take reasonable care for her safety, however, when the considerations raised by the High Court in Tame and approved in Napier are taken into account I do not believe the Company breached its duty to Mrs Cook. [emphasis added]

Her Honour continued:

In my view Mrs Cook was an adult of full capacity who made an independent choice to go to the assistance of the Reurichs when the flat caught fire. I can find no evidence that she was invited or urged by the Reurichs to attend the fire to assist. She was not present when Mr Reurich spoke to members of the quilting group in the dining room, so the request to help was not made by him to Mrs Cook directly. I do not believe the request made by Mr Green, to assist in carrying a fire extinguisher, is open to the interpretation that it was a request from the Defendant Company to assist at the house. There is no sufficient evidence of the nature and circumstances of the making of the request, and no corroboration of it from any of the other witnesses. When the fire broke out Mrs Cook was in a safe place, well away from any danger from the fire. Even if the request to carry the fire extinguisher was interpreted as a request made on behalf of the Company, it did not necessarily involve Mrs Cook in approaching the fire. It was open to her to hand the extinguisher to someone else when she arrived at the house, as she later did. The request did not require her to approach the house or the fire.

17 Her Honour turned to the issue of the emergency plan. The evidence was that the respondent had developed an emergency plan with the help of the Fire Captain Mr. Moore. He was also an employee of the respondent. It was not implemented on the day of the fire at the managers’ house. Her Honour said that there was no need to implement the plan because the Conference Centre was never at risk throughout the incident [Red AB 53J]. The appellant and the quilters were safe. The plan was therefore irrelevant. Further, it was not foreseeable that visitors might try to assist in an emergency at the managers’ house [Red AB 53N].

18 In conclusion her Honour said:

Although the matter is not free from doubt, I am satisfied that currently the law does not cast a duty on the Defendant to prevent a Good Samaritan like Mrs Cook exposing herself to danger. When the fire broke out, and until it was extinguished, it presented danger to visitors to the Conference Centre. As its visitors were safe the Defendant Company and its directors, the Reurichs, had no responsibility to take steps to protect them from harm. I am unable to interpret the evidence before the Court to suggest that either Mr Reurich or Mr Green, on behalf of the Company, requested Mrs Cook’s assistance at the fire. There is no evidence either to suggest that in some way the Reurichs created a situation in which members of the quilters’ group were exposed to danger so that Mrs Cook was forced to assist or rescue them. In these circumstances I am unable to find the Defendant Company breached its duty of care to Mrs Cook.

19 Accordingly her Honour entered a verdict for the respondent.

Consideration

20 The appellant and the other quilters were lawful visitors to the respondent’s Conference Centre. The managers’ house, flat, garage and office formed an integral part of the facilities of the Conference Centre and was situated on the same large parcel of land. The respondent was the occupier of the Conference Centre. When the fire developed in the house the respondent sought help from the quilters including the appellant. That help may not have been sought directly from the appellant is of little consequence. Help was asked for by Mr Reurich to Mrs Searle and other assembled quilters generally. This is confirmed by the statement of Judith Searle’s mother, Lavinia Searle. The appellant was given a fire extinguisher by an employee of the respondent and asked to take it to the fire, obviously to assist. At the house itself, Brett Reurich asked the appellant to direct the hose onto the roof. It is very likely that Mrs Reurich asked some of the ladies to help her remove her possessions from the house before the fire spread to it. This much is clear from Judith Searle’s evidence. Her Honour should have so found. There was ample evidence for such findings. This is not a situation where the appellant and the other quilters took it upon themselves to be Good Samaritans. They were asked for help and, not unnaturally, responded affirmatively.

21 Having devised an emergency plan, the respondent then failed to put it into operation. It was reasonably foreseeable that the appellant, or any of the ladies who were invited to help, could be injured while helping and in the vicinity of the fire. This is especially so when the women (including the appellant) were moving in and out of the house removing possessions and doing so at the request of Mrs Reurich, who was participating in selecting clothes and other objects to be saved from the fire, smoke and other likely damage.

22 Her Honour accepted that the occupier of the land operating the Centre as a commercial enterprise owed the appellant a duty to take reasonable care for her safety, Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. What her Honour failed to do was to address the content of the duty owed by the respondent, Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

23 One of the reasons that an occupier owes a duty to take reasonable care towards invitees with respect to a fire on its land is its power of control over its land and the people on it, Modbury Triangle Shopping Centre Pty Ltd. V Anzil (2000) 205 CLR 254 at [112]. The Conference Centre is a commercial enterprise set in the middle of a bushland setting in a national park. It is in a fire prone area.

24 The appellant was a paying customer along with the other quilters. She was a member of a class of persons whom the respondent ought to have had specifically in mind. The respondent had the power to control who entered and remained on the land and on what parts of the land. The respondent should have implemented its emergency plan. It should have moved the appellant and all of the quilters away from the fire to a safe place and ensured that they stayed there until the Fire Brigade told them to leave. These were not unreasonable steps to take to reduce the risk of visitors assisting with the fire.

25 Her Honour said that it was only with hindsight that it could be said that it was foreseeable that visitors to the Centre might try to assist with the fire. This finding must be wrong. The evidence is plain that the respondent asked the quilters (including the appellant) for help with the fire. It therefore must have been foreseeable that they would help. That is what they were asked to do. It must also be a reasonably foreseeable consequence that a helper might suffer smoke inhalation or some kind of psychological injury. That is the nature of fires – they are terrifying and dangerous things. Mrs Reurich’s evidence is to this effect. It is also at odds with the finding of her Honour that the fire presented a danger to visitors of the Conference Centre, see Red AB 53Q.

26 Her Honour made much of the appellant being an adult with full autonomy and free choice. But this ignores the fact that the appellant and the other quilters were asked to help. While they were motivated by a desire to help, they did so because they were asked. It is a natural reaction to seek to help when asked. The appellant and the others were motivated by the request and were endeavouring to help stop the fire spreading and destroying the respondent’s house. They were activated by a desire to help prevent loss of the furniture and possessions of the respondent, hence their removal of the furniture etc. Having been asked to help, the appellant felt very obliged to do so. The appellant and the others were doing what was human nature to do – to assist when asked by those in need. The law recognises that a duty of care may arise in such circumstances, see for example, Hargrave v Goldman (1963) 110 CLR 40 at 66.

27 In my opinion, the issue of autonomy was a false issue and did not arise. It is wholly inappropriate to deny damages to the appellant on the basis of her full capacity and autonomy over her conduct. Having been asked to help and then responding to the plea for help, removes the issue of autonomy and voluntariness from the ring.

28 Although there was no evidence that the respondent contributed to the starting of the fire, it did create a situation of potential danger to a number of the visitors. It did this by failing to implement its own emergency plan and by requesting a number of the visitors (including the appellant) to come and help the respondent fight the fire. By this, they were being encouraged to participate in a situation of peril.

29 Her Honour’s reference to Tame and Napier are apposite but not for the reasons assigned. Her Honour said that tests of reasonableness ought be judged in the light of current community standards so that the law of negligence accords with what people do in real life situations. In fact, what people really do when someone’s property is imperilled and they are asked to help, is just that. Go to their aid. In doing so they are motivated by their desire to help and by the plea for help. Potential hazards to themselves become a secondary consideration.

30 The respondent had a written emergency plan to deal with any type of emergency, including fire. It was directed towards the protection of visitors to the Conference Centre. It provided that if any emergency alarm is raised the leader of the group of visitors is to ensure that the whole group “assembles in an open safe place or area. For example the car parks or on the oval and away from any danger”. There they are required to check if all group members are accounted for. The leader is further required by the plan to keep the entire group together in an orderly fashion until emergency services personnel give permission to disperse or evacuate. Mrs Reurich accepted that in the absence of a group leader, it would fall upon her or her husband to undertake the role.

31 Her Honour was wrong to find that the emergency plan was irrelevant. First, the managers’ house was part of the Conference Centre complex. It included the office and garage for service vehicles. Visitors on occasions resorted to the house for information or inquiry. The emergency plan applied to the whole of the Conference Centre. The fact that when the fire broke out the quilters were in no immediate danger is no reason to ignore the emergency plan. Without the plan being implemented there was always the risk of some of the quilters entering the zone of immediate danger in and around the house. This is in fact what happened. And it happened at the invitation of the respondent. There is ample evidence from the quilters that they were never told to leave the area. To the contrary they were encouraged to stay and help fight the fire and assist in removing the respondent’s property from the house. None of the quilters, many of whom had visited the Centre before, had ever been informed of the emergency plan or had any knowledge of it.

32 Counsel for the respondent accepts, as he did at trial, that the respondent has a duty of care to the appellant and visitors to take reasonable care to avoid a foreseeable risk of injury. The respondent however submits that it was not reasonably foreseeable that the appellant or anyone else would suffer a psychiatric panic attack. Mr Hull submits that it was not reasonable to expect the respondent to have in place a plan to prevent people helping. However, this is the wrong question to ask and tends to invert the duty. The emergency plan, devised by the respondent, was to put visitors in a place of safety, away from any zone of danger. If they were permitted (or asked or encouraged) to be in a zone of danger, there was always the foreseeable risk that one or more of them would come to some form of harm, whether it was smoke inhalation or some form of psychiatric panic attack.

33 It was the owner’s failure to implement the emergency plan that lead directly to the appellant and other quilters attending the fire, trying to assist the respondent to fight it and to remove their possessions. If the plan had been put into operation the appellant and the quilters would not have involved themselves with the fire. The appellant’s injury occurred because of her involvement with the fire. It would not have occurred if she was away from the fire, assembled in a safe area. The appellant said that she would have obeyed any order to assemble at a safe place. There is no reason to doubt this.

34 In my opinion her Honour should have found that there was a foreseeable risk of injury to a class of people, who included the appellant, and this included a risk of smoke inhalation and some form of psychiatric injury. There was ample evidence of breach of duty in the respondent failing to implement its emergency plan to ensure that the quilters and the appellant were assembled away from the fire and in a safe place. It did the reverse and invited the quilters, including the appellant, to help fight the fire and remove the respondent’s property from the house threatened by the fire.

35 Her Honour should have found for the appellant on the issue of liability. That means that will be necessary however for the matter to be returned to the District Court for a trial on damages. That is unfortunate. There is a longstanding convention that where liability is found against a plaintiff the trial judge proceeds to assess damages in any event. This is to avoid the necessity of a rehearing on damages should an appeal against liability be successful: see Lawrence v The Nominal Defendant BC 8400320, 2 July 1984 (unreported); Di Pietro V Hamilton BC 90002048 6 September 1990 (unreported).

36 Orders

I would propose the following orders:

1. Appeal allowed with costs.

2. Respondent to have a certificate under the Suitors Fund Act 1951 if otherwise entitled.

3. Her Honour’s verdict for the defendant is set aside and, in lieu thereof, a judgment on liability for the appellant plaintiff be entered.

4. Remit the matter to the District Court for a trial on damages.

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Last Modified: 09/24/2004