Baker v Wood[2005] QDC 119

DISTRICT COURT OF QUEENSLAND

1. [1]
   In the early hours of 23 June 2000 a fire was started on the ground floor of a backpackers’ hostel in Childers.  The plaintiff, a young Englishwoman, was then asleep in a room on the floor above.  Soon after she was woken by a friend.  She was unable to leave in the usual way, but escaped the fire by means of a balcony and the roof of an adjoining building.  Most of the residents in the hostel were able to escape with their lives, but sadly 11 perished in the fire.  It is alleged in the pleading that the plaintiff found out the following morning that people had been killed.  She was acquainted with each of them, and knew two of them very well. 

2. [2]
   The plaintiff alleges that as a result of what happened to her, including being informed of the death of those people, she suffered psychological injury. By this action she seeks damages in respect of that injury from the person alleged to have been the owner of the premises at the time, the company alleged to have been the lessee carrying on the hostel business at those premises, the local shire council, and the State of Queensland.

3. [3]
   The fourth defendant, the State of Queensland, has now applied to have the statement of claim struck out as against it, on the ground that the pleading does not disclose a cause of action against the fourth defendant, and that it has a tendency to prejudice or delay a fair trial of the proceeding. Further or in the alternative, an order is sought that the plaintiff give security for its costs of and incidental to the action. Both of these orders were resisted on behalf of the plaintiff. The other defendants were, properly, not made respondents to the application, but I was told they had been informed that it was being made.

Striking out application – the pleading

4. [4]
   The test to be applied under r 171 is whether, with the benefit of argument, it is apparent that the plaintiff’s case as pleaded is so clearly untenable that it cannot possibly succeed.^[1]  The plaintiff’s case as pleaded lies in negligence and in breach of statutory duty.  As to the former, the essential elements are the existence of a duty, breach of that duty, and that that breach caused the plaintiff loss or damage.  The pleading alleged numerous and extensive duties on the part of the fourth defendant, although the only material fact as to the existence of any relationship between the parties giving rise to the duties pleaded were that the fourth defendant “was responsible for control, management and exercise of powers relation to fire safety in premises in Queensland (including the [relevant] premises) pursuant to the Fire and Rescue Service Act 1990,”^[2] and that the plaintiff was a person who was at the relevant time resident within the premises.  Paragraph 5(c) alleged, without any further reference to material facts, that the fourth defendant “owed a duty of care to members of the public attending at the hostel, including the plaintiff, to take all reasonable precautions for the safety of the plaintiff and not to expose the plaintiff to risk of injury or loss of which the fourth defendant knew or ought to have known.”^[3] 

5. [5]
   A further allegation of the existence of duties, alleged to have been owed by all defendants including the fourth defendant, was in paragraph 9 in the following terms:

“9. Further, or alternatively, it was the duty of the defendants:

1. (a)
   to ensure that the premise were maintained in a manner fit for the plaintiff to reside in;

2. (b)
   to ensure that the premises and inclusions were maintained in good repair;

3. (c)
   to ensure that the premises were maintained in a manner so that they were safe and without risks to the plaintiff’s health and safety;

4. (d)
   to ensure that the premises complied with any and all relevant laws relating to the health and safety of persons, including the plaintiff, using or entering the premises;

5. (e)
   to ensure that an adequate and effective fire alarm system was installed, inspected, maintained and repaired at the premises;

6. (f)
   to establish and maintain adequate systems of inspection in relation to the matters referred to in paragraphs 9(a) and (e) hereof;

7. (g)
   to establish and maintain adequate systems of inspection, in particular, in relation to fire safety at the premises;

8. (h)
   to establish and maintain adequate systems of inspection, in particular, in relation to the fire alarm system at the premises;

1. (i)
   to ensure that the fire alarm system was in proper and effective working order at all times;

10. (j)
    to ensure that any and all necessary maintenance and repairs were performed upon the fire alarm system to ensure that it was in proper and effective working order at all times;

10. (k)
    to advise or warn the plaintiff of any safety risks of which the defendants knew or ought to have known;

10. (l)
    to take all reasonable precautions for the safety of the plaintiff whilst she was upon the said premises;

10. (m)
    to not expose the plaintiff to a risk of injury or loss of which the defendants knew or ought to have known.”

6. [6]
   Finally paragraph 9A pleaded in the following terms:

“Further, or alternatively it was the duty and obligation of the third defendant and/or the fourth defendant to advise, warn direct and/or compel performance and/or compliance by the first defendant, and/or the second defendant of the duties particularized in paragraph 9 hereof.”

7. [7]
   Particulars were sought by the fourth defendant of the facts matters and circumstances by reason of which it was alleged that the fourth defendant owed these duties. By further and better particulars dated 30 September 2004 the plaintiff stated that the duties in paragraph 5(c) owed to members of the public “arose from its obligation to provide good government within the jurisdictional boundaries of the State of Queensland and to provide for the welfare of those within its jurisdiction, manifested by the enactment of the Fire and Rescue Authority Act 1990.”  The same particulars were provided as to the facts matters and circumstances by reason of which it was alleged that each of the duties alleged in paragraph 9 was owed by the fourth defendant.  The particulars given of the facts matters and circumstances by reason of which the duty alleged in paragraph 9A was owed by the fourth defendant were the same, although there was the qualification that reference was made more specifically to Division 1 of Part 2 of the 1990 Act. 

8. [8]
   That division provides for the establishment of the Queensland Fire and Rescue Authority, its status as a body corporate which may sue and be sued in its own name, and the fact that it represents the state. It identifies the functions of the Authority, which include “to protect persons … from fire,” to protect persons trapped in a building or otherwise endangered to the extent that the personnel and equipment under the control of the Authority can reasonably be used for the purpose, and to provide an advisory service and undertake other measures to promote fire prevention and fire control and safety in the event of a fire. Section 8E provides for its powers, but without imposing on it any obligation to use any such powers in any particular circumstances.  There is nothing in that division which provides for the imposition of any duty on either the Authority or the State of Queensland.

No factual basis pleaded for any duty at common law

9. [9]
   It is well established that the mere existence of a power on the part of the government or a government instrumentality does not mean that there is a common law duty to exercise the power in any particular way.^[4]  It is I think trite that the mere existence of a power to govern the State of Queensland does not impose any duty on the fourth defendant, breach of which is actionable by any individual harmed by any deficiency of government, whether by way of personal injury or otherwise.  Nor did the mere enactment of the Fire and Rescue Authority Act 1990 alter that situation, and mean that there was any duty at common law owed to the plaintiff.

10. [10]
    These are the only facts in the pleading or particulars relied upon as the basis for the existence of the various duties alleged. In my opinion it is sufficiently clear to satisfy the General Steel test that those facts alone cannot establish any of the duties alleged.  In the absence of any duty, the plaintiff’s case in negligence as currently pleaded is untenable.

11. [11]
    There is also the consideration that what is alleged by the present plaintiff is that she suffered only psychiatric injury. It is well established that the existence of a duty not to cause injury of that nature is not coextensive with existence of a duty not to cause physical injury, although there have been various changes over time in the boundaries of such a duty. At the present time there is considerable uncertainty about the location of those boundaries,^[5] but that merely emphasises the importance of the proper pleading of those facts alleged by the plaintiff to give rise to the specific duty not to cause psychiatric injury.  That is of some importance in the present case, in circumstances where it is alleged that one of the factors which caused the plaintiff’s psychiatric injury was her being informed of the death of those persons who had died in the fire. 

12. [12]
    The pleading to some extent deals with the existence of a duty and breaches of duty in relation to the safety of the plaintiff as an individual, but does not in my opinion adequately deal with the particular difficulty which arises because of psychiatric injury attributable in part to the physical harm suffered by others. This is not just a case about the risk of physical harm to the plaintiff; it is, at least in part, a case about the existence and scope of a duty not to cause psychiatric injury to the plaintiff as a result of physical harm suffered by others.

13. [13]
    Some consideration was given to the issues that arise and some circumstances which can give rise to such a duty by the High Court in Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.  The circumstances in that case which were held by the High Court to give rise to a duty of care not to cause psychiatric injury were somewhat different from the circumstances which are relevant in the present case.  But the approach in that case demonstrates that it is important that the specific factual basis relied on to give rise to the duty be properly pleaded.

Breach of statutory duty

14. [14]
    The statement of claim, after alleging that the plaintiff suffered injury as a result of what had happened to her, alleged in paragraph 11:

“The plaintiff’s injury, loss and damage were caused as a result of the negligence and/or breach of agreement and/or breach of statutory duty of the first defendant and/or the second defendant and/or third defendant and/or fourth defendant, particulars of which are as follows:”

There then follow large number of particulars, most of which are not obviously referable to breach of statutory duty although they include paragraph (n) “failing to comply with Part 9A of the Fire and Rescue Authority Act 1990,” and “(r) causing or permitting the premises to operate as a hostel in circumstances where the defendants and/or their servants or agents failed to carry out adequate and regular inspections pursuant to the Fire and Rescue Service Act 1990.”

15. [15]
    Apart from anything else, this paragraph is quite unclear, in part due to the use of the bastard conjunction^[6] which in my opinion has no place in any pleading.  By mixing up the allegations of negligence, breach of agreement (which is apparently completely irrelevant to any action against the fourth defendant) and breach of statutory duty, it fails to give sufficient regard to the consideration that an action for breach of statutory duty is distinct from an action for negligence at common law.^[7]  Unless the duties clearly overlap, it is unlikely to be helpful to the proper understanding of the plaintiff’s case for the claim for breach of statutory duty to be mixed up in this way with the claim for negligence.

16. [16]
    Voluminous particulars were sought and provided of the various allegations in paragraph 11.  Paragraph 7(b) of the particulars identified that the laws with which the premises should have complied which were relied on by the plaintiff were the obligations in Part 9A Division 2 in the 1990 Act, particularly the obligations imposed by ss 104C, 104D and 104E, and Local Law number 12 (rental accommodation) of the third defendant.  It was not suggested that the latter imposed any actionable statutory duty on the fourth defendant.  The 1990 Act received mention on quite a number of other occasions in the particulars, but the only other statute mentioned was the Local Government Act 1993 which was mentioned in paragraph 22 in the particulars given at paragraph 11A, but only in terms of identifying the particulars which had been sought.  It was stated there that the facts matters and circumstances relied upon to establish that the plaintiff’s injury was caused by the failure to enforce statutory obligations imposed by that Act were that “the plaintiff’s injury loss and damage were occasioned by materialisation of the risk the recognition of which gave rise to the legislation.” 

17. [17]
    I think I may say with some confidence that, whatever matters may have been exercising the minds of the legislators in 1993 when they were contemplating the enactment of the Local Government Act, the risk of a fire in a backpackers’ hostel in Childers would not have been among them.  One of the objects of the 1993 Act in s 3(b) was “recognising a jurisdiction of local government sufficient to allow a local government to take autonomous responsibility for the good rule and government of its area with a minimum of intervention by the state.”  Section 25 provides that each local government has jurisdiction to make local laws for, and otherwise ensure, the good rule and government of its territorial unit.”  However a local law will give way to an inconsistent state law:  s 31. 

18. [18]
    No doubt these provisions would be wide enough to permit a local government to exercise powers which were relevant to the minimisation of the risk of fire or death or injury as a result of fire, but there is so far as I can see nothing in the Act which imposes any statutory duty on the fourth defendant in respect of such matters. The only references to “fire” within the Act are in relation to the fire services charge, and (currently) a reference to the powers of authorised persons in relation to provisions in the Building Act 1975 Part 2A, which were inserted in that Act in 2002.  I think it is sufficiently clear that there is no actionable statutory duty imposed by the Local Government Act on the fourth defendant which is relevant to this action.

19. [19]
    Turning to the 1990 Act, s 104H provides that a regulation may prohibit the use of a building as prescribed under the regulation unless there is in existence a certificate of compliance issued under s 104I in relation to that building use.  Section 104I permits an occupier of a building to which such a regulation applies to apply to the chief commissioner to be issued a certificate of compliance in accordance with that section.  If that occurs the application must be referred to an authorised fire officer for consideration and determination.  The authorised fire officer must then inspect the building, and the authorised fire officer must issue a certificate of compliance in relation to the building if satisfied that the duties of occupiers set out in ss 104C, 104D and 104E are being complied with, the regulations that apply in relation to building use are being complied with, and adequate fire safety measures and fire prevention measures generally have been taken or are being maintained.

20. [20]
    That provision arguably provides for statutory obligations in certain circumstances; whether there is a private action for damages for breach of such obligations is a matter which can for the moment be put to one side.^[8]  What matters for present purposes is that it is immediately apparent from what I have said that the activation of those obligations is dependent upon the existence of certain facts, specifically the application for such a certificate by an occupier of the relevant building, the premises the subject of the action.  There is no allegation in the pleading that such a certificate was applied for, and accordingly an essential material fact for the existence of any obligation which is dependent upon such an application is absent.

21. [21]
    It was also said in the course of submissions that the Bundaberg office of the Queensland Fire and Rescue Service had a practice of conducting annual inspections of accommodation buildings such as backpacker hostels, but that this particular hostel had not been inspected since 1997, and that on that inspection certain factors suggesting that there were problems with fire safety at the hostel had been found. In some circumstances even if there is no duty on a public authority to act, if the public authority decides to act it can come under a duty to take reasonable care when acting, owed to persons who may be adversely affected by a failure to act properly.^[9]  But the mere existence of a power to inspect, assuming there is such a power under the statute, does not give rise to an actionable duty to exercise that power in any particular way, and in particular to exercise that power in a way which would have been of some relevance to the mechanism by which it is alleged that the present plaintiff suffered her injury.^[10]  Nothing more is currently pleaded as the basis for any such duty.

Conclusion – striking out pleading

22. [22]
    In my opinion the present pleading is wholly inadequate as a proper pleading of either an action in negligence at common law, or an action for breach of statutory duty. In relation to the latter, the relevant statutory basis of the duty has not been identified, and no material facts by which any such duty came to be engaged have been pleaded. Indeed, but for the terms of the introductory words of paragraph 11 of the statement of claim, it would not be apparent that the pleading was purporting to plead an action for breach of statutory duty at all.  In my opinion it is clear beyond argument that the facts currently pleaded do not establish the existence of any duty at common law, or under a statute, and therefore do not disclose any reasonable cause of action.  Accordingly the pleading should be struck out.

23. [23]
    There should however be leave to replead. It will be apparent from what I have said that the plaintiff wishes to make specific allegations of acts or omissions on the part of persons for whom the fourth defendant is responsible, in circumstances which are not properly pleaded at present. In the absence of a pleading which deals appropriately with those allegations, I cannot express any opinion as to whether they would be capable of supporting a good cause of action, or at least one which was good enough to survive an application under r 171.  But it is clear that the current pleading is not the best that the plaintiff can do, and accordingly there should be leave to replead. 

24. [24]
    I think comprehensive repleading would be desirable. Apart from anything else, the current approach of lumping the third and fourth defendants together, and at times together with the other defendants, without regard to the substantially different legal positions that they occupy, and of the allegation against all defendants indiscriminately of a wide range of duties, is unhelpful. It would be better in my opinion for the pleading to deal specifically and separately with the case against the fourth defendant, at least so far as the factual bases for any specific duty or duties alleged on the part of the fourth defendant, and any breach of any duty, are concerned. However, I am not saying that the pleading must be in any particular form. That is a matter for the plaintiff and her advisers.

Security for costs

25. [25]
    In relation to this issue, in my opinion it is significant that this is one of 58 separate actions pending in this court by various individuals who claim to have suffered physical or psychiatric injury or both, either by being a resident at the hostel at the time of the fire, or by being person who had been closely associated with one or more of those who lost their lives. I was told that there were more claims in respect of which steps had been taken under the Personal Injuries Proceedings Act, although proceedings had not yet been commenced.  To some extent of course the facts in each case will be different, but there will obviously be a number of important questions which arise in common.  One which springs to mind is whether the 1990 Act gives rise to a private right of action for damages for breach.  It seems to me that it would be appropriate in these circumstances for one or more actions to be run as test cases, and at the very least there ought to be some form of systematic case management in relation to all of these actions.  That however will be complicated by the fact that, although all the current proceedings are in this court, some of the foreshadowed proceedings are expected to be commenced in the Supreme Court.

26. [26]
    The present application has been the first active step taken by either party to bring some form of order to the conduct of these proceedings. The fourth defendant is at present seeking security for costs on the basis that all of the relevant issues will be decided in the present action, but I think it unlikely that that will occur. The present action was singled out by the defendant for making this application only because, among the proceedings currently commenced, the plaintiff’s name comes first in alphabetical order. That provides an explanation for the application having been made in this matter, but is unlikely to be the sort of approach adopted in any form of systematic case management.

27. [27]
    These however are not matters with which I need be concerned. Civil actions are not routinely case managed in this court, and responsibility for deciding when and how particular actions or groups of actions will be case managed rests with the Chief Judge. The appropriate course is for me to refer the matter to the Chief Judge to decide whether and how the proceedings in this court are to be managed. Further case management of the proceedings in this court may involve, or may come to involve, some liaison with the Supreme Court in relation to those proceedings in that court, and that too is appropriately the function of the Chief Judge.

28. [28]
    If the present action came to be a test case then, as was properly conceded by counsel for the fourth defendant, that would be a relevant consideration in relation to any decision to order security for costs. Conversely, if most of the costs referred to by the fourth defendant are going to have to be incurred anyway because the preparation referred to will have to be undertaken anyway in relation to claims by other plaintiffs, and particularly a claim by a plaintiff who is to be the plaintiff for the test case, that is a matter which is in my opinion also relevant to any application for security for costs. The plaintiff submitted that no order for security for costs should be made in any case, in view of the circumstances of the plaintiff; I should not be taken to be deciding, or even expressing a tentative view, that that is not right. In my opinion it is not appropriate for me to decide the application for security for costs at this stage. That part of the application should simply be adjourned to a date to be fixed, until the position in relation to case management has been clarified.

Costs

29. [29]
    In relation to the costs of this application, if it had dealt with only the question of striking out the pleading, the fourth defendant would be entitled to its costs on the ground that they follow the event. Given that the plaintiff is effectively without means, and resident out of the jurisdiction, there could well be grounds for making the order directly against the plaintiff’s solicitors.^[11]  There is also the consideration that any deficiency in the pleading is obviously the responsibility of the plaintiff’s advisers rather than the plaintiff personally.  It would however be necessary for notice to be given to those solicitors and for them to be given the opportunity to be heard.

30. [30]
    However the matter is complicated by the existence of the other part of the application. In circumstances where that has not yet been decided, it is not possible to know whether the outcome of that part of the application reinforces, or detracts from, any prima facie entitlement to costs on the part of the fourth defendant. In the circumstances therefore in my opinion the only appropriate course at this stage is to reserve the question of costs of the application so far.