Smoke alarm duty queried in fatal fire

Keywords

Landlord’s duty of care, smoke alarms, breach – discrete or hidden risk, intoxication, exercise reasonable care and skill.

Facts

Bradley Heafey (deceased) died in a fire at a single-storey home that he was renting from James Gause. The deceased partner, Ms Alderson, their two children and deceased’s parents brought proceedings against Mr Gause for personal injury for discovery of the death of the deceased and for Ms Anderson a claim under Compensation to Relatives Act 1897 (NSW). 

Before the house fire, the smoke alarm in the lounge room had been tampered with and did not sound an alarm. This resulted in the deceased, who was asleep in the lounge room at the time of the fire, not becoming aware of the fire. 

The autopsy of the deceased found that he had a BAC of 0.051 per cent, presence of cannabis and prescribed medications.

At trial

The primary judge found Mr Gause negligent because he breached his duty to check that the smoke alarm was operational.  The primary judge also found that at the time of the fire the deceased was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired, resulting in the damages awarded to the respondents being reduced by 25% under Section 50 Civil Liability Act 2002 (NSW) (“CLA”)¹.

Appeal

The Applicant appealed against the order finding him liable and the Respondents cross-appeal against the reduction in damages.

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The primary issues in the appeal were, did the primary judge err in:

1. finding that the appellant did not check that the smoke alarm was working by pressing the test button;
2. finding that the smoke alarm had been tampered with;
3. finding that the appellant had breached the duty of care, because reasonable care did not require the appellant to press the test button on the smoke alarm in the circumstances?
4. finding that the deceased was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired?

Decision on Appeal

Mitchelmore, Stern, Price J, decision delivered 20 December 2024.

The appeal was dismissed, and cross appeal allowed.

Ratio

The primary judge properly placed weight on the fact the appellant did not at any time during his evidence suggest that he pressed the test button on the smoke alarm.  The COA did not overturn the primary judge’s findings of fact.

The expert evidence together with the evidence of the appellant and Ms Alderson strongly suggests that there was either no battery in the smoke alarm or it was depleted and the speaker on the smoke alarm must have been removed before the commencement of the deceased tenancy.  The COA found there was no error in the primary judge’s conclusion that a reasonable definite inference should be drawn that the smoke alarm was tampered with before the start of the deceased’s tenancy. 

The risk that the smoke alarm may not operate properly in the event of a fire was foreseeable and highly significant.  If it occurred, serious harm would likely be caused.  The COA found that pushing the test button on the smoke alarm was not onerous.  The appellant knew that there was a simple and easy check that he could perform to ensure that the smoke alarm speaker was working and without performing that check he could not be sure either that the speaker was not working or functioning.

The COA agreed with the primary judge’s finding that the nature of the risk of the faulty smoke alarm meant it was discrete or hidden, which made the appellant’s duty to perform the inspection more onerous, compared to the level of care required for an obvious and less dangerous risk. 

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In relation to the application of s50 CLA, the COA found that for that purpose the act or omission that caused the death of the deceased was the failure of the smoke alarm to operate as it should have after the fire started, which had the effect that the deceased could not escape from the premises.  The application of S50(1) of the CLA requires as a preliminary step, characterisation of the conduct or activity in which a plaintiff is engaged in the relevant circumstances, which is consistent with the approach in Amanda’s On the Edge and Payne v Liccardy (at paragraph 101).

The deceased had no reason to suspect that there would be a house fire, still less that the smoke alarm would not sound.  The deceased did not undertake an activity which required any particular degree of skill or judgement; he simply went to sleep on the sofa after attending a friend’s birthday celebration having had some drinks, cannabis and prescription medication. 

The deceased’s need to navigate his house to escape the fire did not form part of the conduct or activity in which he was engaged but was rather a superimposed danger which he had no reason to suspect.  The COA concluded that the primary judge erred in concluding that that the deceased’s intoxication impaired his capacity to exercise reasonable care and skill and held that s50 CLA was not engaged.

Footnotes
¹ Section 50 of NSW CLA: No recovery where person intoxicated unless the Court is satisfied that the death, injury or damage is likely to have occurred even if the person had not been intoxicated – in that instance contributory negligence is presumed unless the intoxication did not contribute in any way to the cause of death, injury or damage.