The findings of an inquest into an apartment fire that resulted in the death of a 21 year old woman and serious injuries to another include strong criticism about the regulation of fire safety standards.

Deputy State Coroner Dillon has found there was a culture of ‘compliance’ rather than of real safety.  He said:

‘An emphasis on compliance and regulation of safety can, paradoxically, reduce safety. In my view, it is likely that the various orders and checks and annual fire statements were regarded by all involved in the two year paper war as a form of regulatory homework, rather than as a tool for improving the actual safety of residents in the building.’

Background Facts

In September 2012, a 21 year old university student named Connie Zhang died after falling five storeys from a window ledge when she was trapped by a fire that had engulfed her apartment in Bankstown, NSW. Connie’s friend Ginger Jiang also fell from the window ledge and suffered serious injuries to her legs and hips, leaving her in a wheelchair.

The fire began after Ms Zhang’s housemate Mr Zeng had finished a cigarette on the apartment balcony. Mr Zeng told investigators that after his cigarette, he returned to his bedroom. Shortly after the electricity to the apartment cut out. Mr Zeng came back into the living area to investigate the power outage and discovered a fire burning on the balcony. He opened the door to the balcony to throw a bucket of water on the fire, which increased the flames and black smoke began to enter the apartment. He said at this point he was overcome with smoke and left the apartment via the front door, wedging it open with a dumbbell to allow the two women to escape.

Unfortunately both women retreated into one of the rooms which later became engulfed with fire. In order to escape the inferno the women attempted to climb onto the window ledge of the room. With temperatures reaching in excess of 600C, the aluminium frame of the window began to melt, burning Ms Jiang’s arm and forcing the two women to jump from the window, landing five storeys below on the roof of a restaurant.

CORONIAL INQUEST AND INQUIRY

Mr Dillon conducted an inquest into the death of Ms Zhang and an inquiry into the fire, which included whether the building complied with fire safety standards and whether the fire safety standards are adequately regulated and enforced.

The cause of the fire

It was common ground the fire had started on the balcony, however the exact cause remained unknown. Expert evidence established that while the air-conditioning unit on the balcony may have contributed to the severity of the blaze (forcing the smoke from the blaze inside the apartment through the ducts), the fire had not ignited from the unit itself, but rather more than likely from the cigarette butt of Mr Zeng being blown into a waste bin on the balcony.

Why the fire spread so quickly

Mr Dillon found that the most likely cause of the rapid spread of the fire was the fact that Mr Zeng had opened both doors of the apartment, which had the effect of creating a wind tunnel, further fuelling the blaze.

Mr Dillon also said a phenomenon known as ‘flashover’ had caused the rapid spread of fire. Flashover occurs when materials in a fire scene are heated to their ignition temperatures and they explode and catch fire. If the majority of the furnishings in one place are of a similar type they will catch fire spontaneously and virtually simultaneously once the ignition temperature is reached.

Whether the building complied with fire safety standards

The first issue Mr Dillon considered when addressing the issue of whether the building complied with fire safety standards was the height of the building. The Building Code of Australia (BCA) and related planning legislation regulations require that buildings with an effective height of more than 25 metres have a number of fire safety features that are not required for buildings of no more than 25 metres. One of these requirements is that sprinklers are fitted throughout the entire building, including the residential apartments.

In making his assessment, Mr Dillon considered the decision of the NSW Supreme Court in The Owners Strata Plan 69312 v Rockdale City Council [2012] NSWSC 1244 to establish whether the building should be measured from the bottom of its lobby floor or from its basement when measuring the building height. The main point of contention was the location of the ‘direct egress’ from the footpath into the building.  Mr Dillon concluded the direct egress was from the lobby rather than the car park and was therefore satisfied the building didn’t exceed the 25 metre threshold and as a result, was not subject to the compulsory installation of sprinklers.

Another key issue was the light well/atrium within the building and the way in which it had been classified. An atrium is defined in the BCA as:

‘A space within a building which connects two or more storeys, and is wholly or substantially closed at the top by a floor or roof (including a glazed roof structure)’

It was argued by a number of interested parties, and also by some of the expert witnesses, that the void space in the middle of Tower B was not an atrium. The space consisted of a void in the middle of all the floors starting at the bottom of the building and being substantially enclosed at the top. While there is some openings at the top of the void for ventilation, the fact the area was substantially enclosed was enough to satisfy Mr Dillon that the space should be classified as an atrium. Mr Dillon referred to the classification as applying the ‘duck test’ in that:

‘If it looks like an atrium and has the characteristics of an atrium, it probably is an atrium’.

The classification of the space as an atrium meant that unless an alternative solution had been approved which justified there being no sprinkler protection, Tower B should have contained sprinklers throughout the entire building despite it being less than 25 metres in effective height.

Whether the fire safety standards were adequately regulated and enforced

Mr Dillon found that after it was constructed, the building had been the subject of alterations to the openings in the roof which occurred without due regard for their impact on the building’s fire safety systems and in particular on the operation of the smoke management systems. Fire safety inspections had identified this issue and a series of notices and letters were sent requiring works to be done to address the safety issues. Mr Dillon considered these enforcement processes and stated that one of the more striking aspects of the case was that the regulatory systems and processes intended to ensure that large residential buildings are constructed according to strict standards had failed. He blamed this on the action, or inaction, of a number of people or bodies – the under resourced Bankstown City Council who had not followed up the safety orders it had issued, the strata agent’s lax or incompetent management and the developer’s blasé attitude to fire safety.

Mr Dillon concluded that the ineffective, or only very slowly effective, system of regulation and enforcement of fire safety standards, and cost conscious developers resulted in a culture of compliance rather than of real safety. He went on to say:

‘In short, we can infer from the lack of urgency on the parts of almost everyone involved in this process, but especially on the part of the developer, that compliance (insofar as that went) at least cost and inconvenience, rather than mindfulness of risk itself, was the uppermost consideration.’

Findings and recommendations

Mr Dillon found that Ms Zhang died as a result of multiple injuries she received when she fell from the ledge outside her apartment while attempting to escape the fire. He also concluded the fire had its origin on the balcony of the unit, but on the balance of probabilities was unable to identify the exact cause.

He also concluded:

‘Had sprinklers been installed throughout the building, it is very likely that both Connie and Ginger would have survived without serious injury.’

He went on to make six recommendations following the inquiry, which are summarised below.

KEY MESSAGES

The death of Ms Zhang and its possible prevention highlights the need for governing agencies such as Council’s and other regulatory authorities to remain diligent in their approach to enforcement of fire safety standards.

In order to ensure the highest fire safety standards are upheld, both developers and authorities must not simply go ‘through the motions’ when taking compliance action, but rather should ensure they are proactive and committed to taking the necessary steps to make buildings safe.

To read Deputy State Coroner Dillon’s decision click here

Summary of recommendations

  1. To the Minister for Planning (NSW) and the General Manager of the Australian Building Codes Board (ABCB):

That the Department of Planning and the ABCB conduct research into the off-setting of costs associated with installing fit-for-purpose sprinkler systems in all new Class 2 and 3 buildings.

  1. To the General Manager of ABCB:

That the ABCB amends the National Construction Code to require the installation of fit-for-purpose sprinkler systems in new Class 2 and 3 buildings.

That the ABCB consider amending the National Construction Code to provide definitions for the terms ‘substantially enclosed’ and ‘direct egress’ to ensure clarity and consistency of interpretation.

  1. To the Minister for Planning (NSW) and the Minister for Health (NSW):

That the Department of Planning and the Department of Health develop the capacity to collect and publish data regarding fire-related injuries for the use in the development of fire safety policies and reforms.

  1. To the Minister of Planning (NSW), the Minister for Emergency Services (NSW) and the Minister for Fair Trading (NSW):

That the ministers consider legislative reform to allow lawful powers of entry for appropriately authorised inspectors to inspect property in circumstances where a reasonable suspicion of unlawful occupancy is held.

That a statutory regime is implemented for the accreditation and auditing of persons or entities that undertake annual fire safety checks and issue annual fire safety statements.

  1. To the Minister of Planning and the Minister for Emergency Services:

That the Department of Planning develop the capacity to collect and publish data regarding the economic cost of fire. That the Minister for Planning conduct a review of the efficacy of the enforcement powers of Fire & Rescue NSW with a particular focus on the effective and proportionate escalation of powers to ensure timely compliance with orders.

That the Department of Planning examine the development of a star rating system for new residential building fire safety systems, with the objective of readily informing the consumer about the overall efficacy of the buildings fire safety systems.

That consideration be given to implementing a statutory requirement that installations of new, or alterations of existing, fire hydrant systems be approved by Fire & Rescue NSW prior to the issue of an occupation certificate.

  1. To the Managing Director, Sydney Water Corporation (Sydney Water):

That Sydney Water consult with Fire & Rescue NSW prior to implementing water pressure reduction programs.