A correspondent has drawn my attention to an article in the Melbourne Age reporting that residents evacuated during a high rise fire in Melbourne are planning legal action against those responsible for the fire (see Rania Spooner, ‘Hundreds still homeless weeks after Docklands apartment fireThe Age (online) 5 December 2014).

The article is short on detail but it reports that those that were evacuated, and who cannot yet return to their homes, are planning to take legal action. The interesting thing is that they don’t appear to know who they are intending to sue:

Lawyers have signed up a group of 10 potential litigants … but must await the results of an official investigation before launching legal action.

” … at some point in time the finger is going to be pointed and let’s just hope the thing that caused the fire has got insurance,” said managing partner Tony Carbone from Nowicki Carbone, part of the Slater & Gordon group…

Depending on the results of the investigation “there could be multiple defendants” named in future litigation, Mr Carbone said.

We’re told that the Metropolitan Fire Brigade identified that the cause of the fire was ‘some equipment being inappropriately stored behind an air conditioning compressor unit on a lower level balcony, which caused it to overheat and catch fire.’

The matter might be more complex than first appears as a follow up article reveals. In ‘Fear over high-rise tower fire risk in Melbourne’ (The Age (Online) 7 December 2014) Simon Johanson reports that an audit of fire compliance for Melbourne’s high rise buildings reveals that the documents intended to confirm that buildings comply with building and fire safety standards ‘were substandard,  with many lacking key fire safety  details’. That the paperwork is incomplete does not mean the building is unsafe, and we’re told that further investigation of 450 with substandard permits found that in 95% of cases there was no risk to health and safety, but that would be of little comfort to residents in the remaining 5%.

With respect to the Docklands fire the article says:

Fire investigators are investigating whether materials used to construct the apartment’s exterior walls and air conditioning units and other items stored on balconies contributed to the rapid spread of the fire.

That all raises levels of complexity in any legal action. If the cause of the fire was material that the resident stored behind the air conditioner, one would expect the resident to be the appropriate defendant, but if the relevant ‘materials’ were those used ‘to construct’ the building then it can’t be the occupier, but can it be anyone else?

In these days of devolved authority it can be hard to point the finger at anyone. The council can be a potential defendant for not maintaining a proper audit on the certification process but a council can only do what is reasonable. If there are 100,000 building permits issued each year, no council could audit them all. That would defeat the purpose of requiring developers to arrange certification and would be prohibitively expensive when councils have other obligations. The surveyor may be liable but as noted, a poorly filed certificate does not mean the building is unsafe, just that the paperwork wasn’t done properly. If the developer has built the building taking reasonable care and building according to current standards, then the mere fact that a residual risk occurred does not prove negligence. If it turns out that the building code was inadequate that is also unlikely to prove negligence and the authority responsible for producing the building code is unlikely to owe a legal duty to individual property owners.

In an apartment block there will also be questions raised on the conduct of the body corporate which is the entity, made up of apartment owners, responsible for maintaining the common property. If the body corporate is named as a defendant those owners who join the class action are effectively suing themselves, but as the body corporate is a separate legal entity with its own insurance policy that is not a barrier.

As Mr Carbone has noted, they will need to wait for the outcome of the official investigation to determine who if anyone should be the subject of the action. Whilst it is appropriate and useful to have those who have suffered a loss seeking legal advice to understand their rights, and certainly I would recommend to anyone who was involved to seek legal advice, it does, perhaps, reinforce a negative view of my profession to see people being signed up for a legal action in the hope or expectation that ‘at some point in time the finger is going to be pointed…’

This is I suspect, a reflection on the practice of class actions, which are reasonably new. Now a representative plaintiff sues and other affected people join the class and the legal action determines their rights (see ‘Litigation over 2011 Queensland Floods continues (November 9, 2014). It therefore follows that it is in a law firms interest to commence the class action as they then get to represent ‘the class’ of plaintiffs. In earlier times each action was separate though they may have been heard together which meant each plaintiff could go to any lawyer they wanted to. That however leads to unnecessary complexity with many lawyers in the one court room each representing their client and seeking to examine or cross-examine each witness (as was seen in the Canberra bushfires litigation where they had to remodel the court room to fit everyone and the public gallery was set up in another court room with a video link).   It is to avoid that complexity and duplication that class actions were created but I suspect they do put pressure on large class action firms, like Slater & Gordon, to get in early.