Landlord appeals $250k compensation payout over fire that killed tenant in Barnsley home

A landlord is in a legal fight to avoid paying compensation over a fire that killed a tenant west of Newcastle.

It is a case that will have ramifications for all rental property owners in relation to providing to working smoke alarms and payouts that could stem from a tenant being injured or killed.

Last year the family of Bradley Heafey was awarded more than $250,000 after his 2019 death in a fire at the Barnsley home he rented.

Mr Heafey had been asleep in the lounge room and the smoke alarm had no battery and its speaker disc had been removed.

His partner, parents, and children sought damages in the District Court for personal injury on mental health grounds.

Judge Robert Montgomery found landlord James Gause guilty of negligence for personal injury and said had failed in his duty of care.

"The defendant's duty at both parts of the obligation to provide operational smoke detector alarms and to exercise reasonable care by inspecting the alarms was called into existence because of the [ability to foresee the risk] that an alarm was not operational," the judge found.

"If that duty was not performed and the risk eventuated, then the defendant is liable."

Appeal lodged

Mr Gause is appealing the judgement in a hearing in the New South Wales Court of Appeal, where he has alleged the primary judge erred in finding that the speaker disc and battery in the smoke alarm were removed prior to the commencement of the tenancy.

Barrister John Turnbull SC told the court on Friday that Mr Gause was focused on the safety of all his tenants.

"He put in a fire blanket and a fire extinguisher, and so he was very diligent making sure there were appropriate protections from fire," Mr Turnbull said.

Mr Turnbull said the batteries in the smoke alarms in the lounge room and a bedroom were replaced the year before after a tenant moved out.

He said Mr Heafey was a smoker and could have removed the speaker and battery to avoid setting it off.

Mr Heafey's partner told the District Court he never smoked inside, but Mr Turnbull said that could not be ruled out because she was away for several days before the fire.

"She doesn't know if he smoked in the house in those last two days — nobody knows," Mr Turnbull said.

The barrister said there was evidence that Mr Heafey had not touched the alarm.

"[His partner's] opinion was he wouldn't have touched it … it was an opinion she believed, but that doesn't deal with the last two days he was in house alone," Mr Turnbull said.

"She may say that but it really has no weight, in my respectful submissions."

Mr Turnbull said no-one knew which side of the commencement of the tenancy the battery and speaker were removed.

Mr Gause's negligence was also based on a finding that he did not push the smoke alarm's test button at any stage.

In response to that Mr Turnbull said Mr Gause "can't recall pushing it, that doesn't mean he didn't do it".

The defence also argued contributory negligence.

"[Mr Heafey] had drunk alcohol, smoked cannabis and taken [the anti-depressant] ENDEP and was asleep," Mr Turnbull said.

Battery 'missing'

The court heard there were two different lights on the smoke alarm — a steady green light that showed the alarm was powered and a red light that flashed every minute to show the device was working.

The Heafey family's barrister, Robert Sheldon SC, told the hearing there was doubt as to when it was and was not in working order.

"There has been no evidence of him seeing the red light and that is consistent with there being no battery in the alarm," he said.

"The starting point for consideration is, then, when the battery went missing."

Justices Anna Mitchelmore, Kristina Stern and Acting Justice Derek Price have reserved their decision.