Gardner v Northern Territory of Australia [2004] NTCA 14

Gardner v Northern Territory of Australia [2004] NTCA 14 - NTCA 2004 case summary — Zoe

[6]

[1]

This is an appeal against a decision of a Judge of this Court dismissing the appellant's claim for damages arising out of the escape of a fire from vacant Crown land onto the property jointly owned by the appellant and members of his family. The trial Judge found that although the respondent owed a duty of care to the appellant, the evidence had not established that the respondent was in breach of that duty. The grounds of appeal, which are poorly drafted, essentially complain that the learned trial Judge erred in his assessment of the evidence and in his findings that the evidence did not establish a breach of duty by the respondent.

[2]

The fire occurred on 10 September 1995. At that time the appellant, two of his brothers and his sister were registered as the joint owners of land situated at Section 1746 Hundred of Cavenagh. In about 1987 the appellant constructed on Section 1746 a dwelling which the trial Judge described as "rudimentary". The appellant's brothers and sister were not parties to the proceedings. For ease of reference I will refer to Section 1746 as the appellant's land and discuss the duty of the respondent as a duty owed to the appellant.

[3]

The appellant's land is in a relatively remote location surrounded by vacant and largely inaccessible land. Annexed to these reasons is a copy of part of a map tendered as an exhibit which covers the relevant area.

[4]

The Crown land from which the fire escaped is immediately to the north of Sections 1746 and 1747. The appellant and the same members of the family owned Section 1747 which is adjacent and to the west of Section 1746. To the south of Section 1746 is Section 1742 which was also owned by the same members of the appellant's family. Cox Peninsula Road is a short distance south of the southern boundary of Section 1742. Each section was 320 acres in area.

[5]

The land to the north of Sections 1746 and 1747, which I have described as Crown land, was owned by the Conservation Land Corporation and was under the management and control of the Parks and Wildlife Commission. The Corporation and Commission are independent statutory authorities under the Parks and Wildlife Commission Act and the Conservation Land Corporation Act. The role of the Bush Fires Council, a statutory body established under the Bush Fires Act, was also relevant. At trial the respondent agreed that it could be sued because, for these purposes, those entities were agencies of the Crown.

[12]

(a)

Bushfires were an annual occurrence on Crown Land in, inter alia throughout the Northern Territory, the Hundreds of Ayres, Cavenagh, Colton and Strangways, generally within the Litchfield Shire.

(b)

Such bushfires occurred naturally by lightning strikes, and unnaturally by human intervention and very regularly;

(c)

Crown Land in the Hundred of Ayers between Haycock Reach and the Blackmore River on the east and Middle Arm on the west and adjoining the northern boundary of Sections 1746 and 1747 was remote, uninhabited and generally inaccessible for fire prevention and control purposes;

(d)

Save for bush style residences and associated outbuildings on Section 1742 and the premises, the plaintiff believes there were no other residential buildings and sheds situated and in use on any of the sections in the Hundred of Ayers north of Cox Peninsula road and west of the Blackmore River and Haycock Reach ("the locality");

(e)

The locality was not in any area gazetted as within the operating areas of a Volunteer Bushfire Brigade;

(f)

Contrasted with the locality, land in the Hundred of Ayers east of the Blackmore River/Haycock Reach and in the Hundreds of Cavenagh, Colton and Strangways ("the region") was a closely settled rural residential area or conservation and wildlife and park reserves with significant farms, buildings and other public and private infrastructure, throughout which was interspersed, land under the control or ownership of the Crown;

(g)

Crown Land in the locality was generally inaccessible to Volunteer Bushfire Brigades and the Bushfires Council for fire prevention, control and management purposes other than along fire access tracks on private property boundaries;

(h)

Volunteer Bushfire Brigades in the region and the locality were unable to extinguish fires on Crown land in the locality other than by backburning from fire access tracks;

(i)

The Bushfires Council sought to protect lives and property from bushfires in the region and the locality by

[31]

[21]

The appellant said that on 9 September 1995 he saw smoke to the north. He denied, however, that Mr Baxter attended on 9 September and spoke with him about the fire. As I have said, the trial Judge accepted the evidence of Mr Baxter.

[22]

During the evening of 9 September 1995 the appellant and Mr Baxter had an informal conversation at the Winnellie greyhound track where the appellant's dogs were racing. According to the appellant he asked Mr Baxter where the fire was located and was told that "the fire is on the other side of the Blackmore River". The appellant said he assumed that meant the fire was on the eastern side of Blackmore River. Mr Baxter had no memory of the conversation.

[23]

Against the background of the uncontested evidence that Mr Piddick, Mr Baxter and others had made observations on 9 September 1995 from a position to the east of the Blackmore River and had observed smoke from the fire to the west of the Blackmore River, and in view of the evidence given by an expert witness to the effect that it was most unlikely that there had been a fire on the eastern side of the river in the relevant location at the relevant time, the trial Judge rejected the evidence of the appellant that Mr Baxter told the appellant that the fire was on the eastern side of the river. His Honour was satisfied that if the appellant thought the fire was on the eastern side of the river, being the opposite side to Section 1746, that view could only have resulted from a misinterpretation of information given to him by Mr Baxter at the greyhound track. That was a finding open to his Honour and I am unable to discern any basis in the evidence which would justify this Court interfering with that finding.

[24]

Regardless of any misinterpretation of what Mr Baxter said, the appellant said that at about 9am or 10am on 10 September 1995 he attended at Section 1746 to check the location of the fire. He could see smoke indicating an actively burning bush fire to the north and northwest of Daly's Creek. The appellant formed the view that the fire was nowhere near the house so he travelled to stables situated near the southern boundary of Section 1742.

[25]

Notwithstanding his evidence that he was generally alert to the threat of bushfires in the dry season and that he was aware that if a fire was situated to the northwest of Section 1746 there was the potential for it to spread to his land, the appellant said he was not as vigilant as he should have been because Mr Baxter had told him the fire was on the other side of the river, meaning the eastern side. Having regard to the evidence given by the appellant as to his observations on the morning of 10 September 1995, and in particular to the markings placed by the appellant on a plan, the trial Judge rejected the appellant's assertion that he thought the fire was on the eastern side of the river in the hours leading up to the spread of the fire onto the appellant's property. That was a finding open to his Honour.

[26]

According to the uncontested evidence of Mr Bruce Greaves, during the morning of 10 September 1995 in company with other members of the volunteer brigade including Mr Baxter, he attended at a fire burning along the northern side of Cox Peninsula Road to the west of Blackmore River and to the south of the appellant's property. A watch was maintained on the fire which included driving along the southern boundary of Section 1742 to check that the fire did not burn back into the appellant's property. Mr Greaves could see smoke rising "far off to the north". When he asked Mr Baxter about the smoke, Mr Baxter said words to the effect "that's up in that swamp country" meaning Crown land to the north of the appellant's property.

[27]

Although denied by the appellant, the trial Judge accepted the evidence contained in Mr Baxter's affidavit that at about midday on 10 September 1995, Mr Baxter attended at the stables on Section 1742 for the purpose of checking the location of the fire. He could see the smoke and assessed that the fire was still north of Daly's Creek. According to Mr Baxter, the following occurred:

[51]

[53]

In the circumstances summarised in para [50], in my opinion the duty to take reasonable steps to prevent the escape of the fire from Crown land onto Section 1746 plainly included a duty to monitor the course of the fire in order to be in a position to take reasonable steps to prevent the escape. In my view, however, the respondent's duty did not extend to taking steps to extinguish or restrain the spread of the fire while it was burning in inaccessible terrain well to the north of Section 1746. As appears later in these reasons, the only reasonable action that the respondent could have taken to extinguish or restrain the spread of the fire was to back burn into the fire at a time when it was approaching the northern boundary of Section 1746 and proximate to it. It was necessary, therefore, for the respondent to take reasonable steps to ensure that it was in a position to become aware of the approach of the fire in sufficient time to undertake the back burning operation.

[54]

The question thus becomes whether the appellant established that the respondent failed to take reasonable steps to monitor the course of the fire and thereby to put the respondent in a position to undertake the back burning operation.

[55]

On 9 September 1995 Mr Baxter and others took steps to ascertain the locality of the fire and were satisfied that it was in vacant and inaccessible Crown land well to the north of the appellant's property. Mr Baxter attended at Section 1746 on 9 September and at Section 1742 at about midday on 10 September 1995. On both occasions he made a judgement, with which the appellant agreed, that the fire did not pose an immediate threat to the appellant's property. The judgment made on 9 September proved to be correct. The judgment made on 10 September proved to be incorrect, but the fact of the incorrect judgment in itself does not prove that the respondent was in breach of any duty owed to the appellant with respect to monitoring the progress of the fire and informing the appellant of the location and movement of the fire.

[56]

As mentioned, the trial Judge found that the last occasion Mr Baxter observed the fire prior to the appellant's house being destroyed was from Section 1742 at about midday in the company of the appellant. His Honour found that the fire was then well to the north of Section 1746 and neither Mr Baxter nor the appellant thought that the fire posed a threat to Section 1746. His Honour also found that after that last observation, both the appellant and Mr Baxter expected the appellant to maintain a watch on the fire.

[57]

In the context of those findings, and in considering whether the respondent could discharge its duty to monitor the progress of the fire by relying upon the appellant to make observations after midday, the trial Judge correctly had regard to the existing practices and community expectations with respect to bushfires in rural areas outside Darwin. His Honour summarised the regime for dealing with such fires in the following terms:

"[53]

In 1995 there existed a regime for dealing with bushfires in the rural areas outside Darwin. The Bushfires Council had been established as a land management organisation. The Bushfires Council employed regional fire control officers whose duties included co-ordinating the activities of the various Volunteer Bushfire Brigades in the region, advising landholders on fire prevention activities and overseeing suppression activities where bushfires occurred. The rural area was divided into various regions and the Volunteer Bushfire Brigades had responsibilities for areas within those regions. The land on which the plaintiff and his family lived was not within the boundaries of a gazetted Volunteer Bushfire Brigade area.

[54]

The plaintiff agreed that fire management in rural localities depended upon residents maintaining a high level of awareness of the risk of fire and conducting themselves in a co-operative way with the Bushfires Council and any relevant Volunteer Bushfire to limit and meet that risk. In effect, the Volunteer Bushfire Brigade relied upon the information fed to it by rural property owners, residents and the general public in order to maintain an effective fire service. The plaintiff himself gave evidence that he was alert to the threat arising from bushfires and he and his family were vigilant in this regard and co-operated with the Bushfire Brigade.

[55]

The evidence of Mr Baxter, which was not challenged, was:

[59]

[61]

With respect, expressing the real issue in terms of who should have monitored the fire has the potential to divert attention from the fundamental questions to be addressed. The respondent was under a duty of care to take reasonable precautions to prevent the fire on its land from escaping onto the appellant's land and causing damage on that land. The critical questions for the trial Judge were whether, in the particular circumstances, that duty extended to monitoring the course of the fire and, if it did, whether the respondent discharged that duty. In particular, on the assumption that the duty extended to monitoring, the critical question was whether the respondent discharged that duty by the attendances of Mr Baxter at Sections 1746 and 1742 and by reaching agreement with the appellant that he would monitor the course of the fire and seek the assistance of the fire brigade should the course of the fire pose an imminent risk of danger to the appellant's property.

[62]

Although the trial Judge expressed his finding in terms that the responsibility for monitoring the fire after midday on 10 September 1995 "rested solely with the plaintiff", in substance his Honour found that Mr Baxter having made the inspection at about midday on 10 September and having reached agreement with the appellant that the appellant would thereafter monitor the fire and call for assistance if necessary, the content of the duty owed by the respondent to the appellant did not extend to taking active steps to monitor the course of the fire after midday on 10 September.

[63]

There is no doubt that there were alternatives available to the respondent. For example, a person could have been placed on the northern boundary of Section 1746 to keep constant watch. However, the fact that alternatives were available does not automatically lead to a finding that in failing to pursue those alternatives, the respondent was in breach of its duty to the appellant. In this context, it is appropriate to bear in mind the following observations of McHugh J in Dovuro [38]:

[63]

[65]

It must be emphasised that the content of the duty owed by the respondent to the appellant must be determined by reference to the circumstances in which that duty existed. For example, the content of the duty with respect to a fire in readily accessible terrain which is immediately threatening damage to property or persons will be significantly different from the content of the duty with respect to a fire burning in inaccessible terrain surrounded by uninhabited land.

[66]

In addition, the content of the duty does not remain static. That content will change as the circumstances change. The escape of the fire onto the appellant's land having occurred at about 3pm, the critical questions to be determined are the content of the duty in the particular circumstances that existed during the hours leading to 3pm and whether the respondent discharged that duty.

[67]

On 9 September 1995 Mr Baxter and the appellant made observations from the house on Section 1746. Their judgment that, at that time, the fire did not pose an immediate danger to the appellant's land and house was correct. Against that background, Mr Baxter and the appellant both agreed at midday on 10 September that the fire did not pose a danger to the appellant's land and house. Their observations were made from the stables near the southern boundary of Section 1742. Perhaps it would have been preferable for Mr Baxter to have made those observations from Section 1746, but there was no evidence that he would have obtained a better view or impression of the location of the fire by viewing the smoke from Section 1746. Much depends upon the nature of the terrain and growth of trees.

[68]

Mr Baxter and others had been monitoring the course of a fire to the south of Section 1742 and to the north of Cox Peninsula Road. When the danger posed by that fire had passed, Mr Baxter specifically turned his attention to the fire to the north of Section 1746. He took time to attend on the appellant and seek the view of the appellant. In the light of the community practice and expectations, and bearing in mind the experience of the appellant, in arriving at his judgment Mr Baxter was entitled to take into account the views of the appellant.

[69]

In all the circumstances, although the judgment made by Mr Baxter at midday proved to be incorrect, in my opinion the plaintiff failed to establish that the respondent did not take reasonable steps to monitor the fire up to and including the visit by Mr Baxter to Section 1742 at about midday on 10 September 1995.

[70]

As to the content of the respondent's duty after midday on 10 September 1995, attention must be paid to the degree of risk that the fire would move toward and reach the northern boundary of Section 1746 and to the extent of the damage that might occur if the fire was not restrained or extinguished at the boundary. In addition, particular regard must be had to the remoteness of the locality, the community practice and expectations in such situations, the appellant's experience, the duties required of the resources available to the Crown and the limited nature of those resources, namely, the volunteer fire brigade. It is in that total context that this Court must be careful not to impose unreasonable expectations and unreasonable duties which are based more on hindsight and a lack of appreciation of the practicalities and difficulties that exist with fires in remote areas during the dry season than a realistic assessment of the care which a reasonably prudent person would exercise in these circumstances.

[71]

If at midday an assessment had been made that there was in imminent risk of the fire reaching the northern boundary of Section 1746, it could have been said with considerable force that, absent other emergencies, the Crown through the fire brigade was under a duty to place itself on standby at the northern boundary in order to be in a position to back burn into the face of the approaching fire. However, such an assessment was not made. Rather, the conclusion was drawn, and reasonably drawn, that at that time the fire did not pose a significant risk to the appellant's land.

[72]

In some circumstances, the fact that within three hours the fire escaped onto the appellant's land and burnt his house would be sufficient to establish an absence of reasonable care on the part of Mr Baxter. However, in the particular circumstances of this fire, and bearing in mind that the appellant agreed with the judgment made by Mr Baxter, the fact of escape three hours later is not in itself sufficient to establish a lack of reasonable care by Mr Baxter.

[73]

Taking a guide from the weather conditions at the Darwin airport, the temperature had only risen approximately two degrees between 9am and midday. The wind speed was approximately the same or a little less. At the Darwin airport the direction of the wind had moved from north northeast to north.

[74]

Between midday and 3pm, the temperature increased at the Darwin airport by two point five degrees. The wind direction remained constant, but the speed of the wind increased from 13 kilometres per hour to 21 kilometres per hour. There is no evidence as to whether that was a gradual or sudden increase in speed. There is no evidence as to whether the changes at the Darwin airport were reflected by similar or different changes in the area of the fire and Section 1746.

[75]

There is an absence of any evidence to demonstrate that Mr Baxter should have known there was an imminent or approaching danger at midday and ought to have taken immediate precautions. Similarly, there is an absence of evidence that it was unreasonable of Mr Baxter to defer further observations over the next few hours on the basis that the appellant would keep a lookout.

[76]

In those circumstances, in my opinion the respondent's duty did not extend to placing someone on the northern boundary of Section 1746 at midday or in the next three hours before the escape of the fire onto the appellant's land. Counsel for the appellant was unable to suggest any other way in which the respondent could have maintained a closer watch on the fire in that period. The appellant failed to establish that the respondent was in breach of its duty.

[77]

I have reached my view without regard to the agreement between Mr Baxter and the appellant that the appellant would monitor the course of the fire. In my opinion, the fact of that agreement adds weight to my conclusion.

[78]

In principle, there is no reason why the respondent could not use the assistance of any person, including the appellant, in complying with its duty to take reasonable care to prevent the escape of the fire onto Section 1746. This is not a case in which the appellant relied upon the respondent to monitor the course of the fire in the few hours after midday. Nor did the respondent undertake to monitor the fire during that period. The appellant did not suggest that any issue of a non-delegable duty arose. The respondent was not required to use a member of the fire brigade to keep an eye on the fire in the discharge of its duty. The appellant voluntarily undertook that task.

[79]

I emphasise that I am not suggesting that in all circumstances the owner of land on which a fire exists will be able to discharge a duty owed to a neighbour to prevent the escape of the fire onto the neighbour's land by agreeing with the neighbour that the neighbour will keep an eye on the fire and call for assistance if necessary. Each case must be decided according to its particular circumstances.

[80]

For the reasons I have explained, in my opinion the appellant failed to establish that in the particular circumstances that existed at about midday and thereafter on 10 September the respondent failed to exercise the care which a reasonably prudent person would have exercised in the circumstances.

[64]

[81]

As to the appellant's case that the duty of the respondent to the appellant included a duty to attempt to control the fire before it reached the vicinity of the northern boundary of Sections 1746 and 1747, the trial Judge pointed out that the evidence of all relevant witnesses was that the fire was unable to be controlled when it was to the north of Section 1746. His Honour found the area was effectively inaccessible for fire management purposes and there was no immediate threat to life or property. The issue about which there was significant dispute in the evidence was whether the respondent could or should have taken action to back burn along the southern boundary of the Crown land immediately adjacent to the northern boundary of Sections 1746 and 1747 either on 9 or 10 September 1995 before the fire was in the vicinity of the northern boundaries of Sections 1746 and 1747.

[82]

It is sufficient to dispose of this basis of the appellant's claim by setting out the relevant passages of the judgment of the trial Judge. In essence the trial Judge concluded that the suggested measure of back burning at a time when the fire was not proximate to the northern boundary of Sections 1746 and 1747 would have been ineffective to prevent the spread of the fire onto the appellant's property when it eventually arrived and would have created additional danger to adjoining properties. In addition, such a back burn would have unnecessarily tied up resources that were required elsewhere. Those findings were well justified by the evidence. The relevant passages of the judgment are as follows:

[40]

"The way in which the fire may have been controlled was by back-burning from the firebreak on section 1746 and section 1747. Mr Bird was of the view that back-burning should have occurred at an early time and whilst the fire was some kilometres away. He said it may have required burning for a day or two days and that the fire would slowly burn into itself and self-extinguish. He was asked to consider the wind conditions in the hours preceding the fire approaching section 1746. It was suggested to him that starting a fire on such a relatively narrow front as was provided by the firebreaks along the boundary of sections 1746 and 1747, in circumstances where winds were, over the period, coming from different directions ranging from north-west to west, north-east to north and north-north-east and west-north-west, created a danger. It was put that the fire resulting from any back-burning exercise may itself have changed directions and created dangers for properties further to the south-west and south-east of sections 1746 and 1747. Mr Bird acknowledged that the terrain on either side of sections 1747 and 1746 was largely inaccessible, but the thought that 4-wheel drive vehicles could get onto those properties to broaden the front of the back-burn. He said he was not suggesting that the vehicles would go "scrub-bashing off in the bush in the face of a fire" and that they would have to remain on a firebreak. This is to ignore the fact that the firebreak did not extend beyond the borders of sections 1746 and 1747. He said that to meet the risk of the fire escaping it would be necessary to have "more appliances, more men".

[41]

The same proposition was put to Doctor Russell-Smith and he responded:

[68]

[44]

The difficulty is that the region is remote and largely inaccessible and the length of firebreak from which a back-burn to the north could take place was relatively narrow. In my view, in the conditions that prevailed, it is clear that the setting of an early back-burning fire would be likely to create a danger for other property to the south-east and south-west of sections 1746 and 1747. In addition an early back-burn would unnecessarily tie up resources that were required elsewhere. I accept the evidence of Dr Russell-Smith that whilst a back-burn would be the appropriate approach to such a fire, it would be necessary to leave it to a time when the approaching fire was much closer than suggested by Mr Bird. Indeed, at the time that Mr Bird suggested the back-burn should have occurred, the fire was located well to the north of section 1746 and it could not have been known whether it would at any time move to the south and, if it did, at what location. Mr Bird agreed that when the fire was situated on the northern parts of section 1826 it was not, at that time, a threat to any property."

[83]

In essence, the suggested back burning before the fire was in the vicinity of the northern boundary of Sections 1746 and 1747 would not have been an effective method of preventing the spread of the fire and would have created other dangers. In those circumstances the respondent's duty did not include a duty to back burn at such a time.

[84]

The evidence established, and the trial Judge found, that the spread of the fire onto Section 1746 could only have been prevented by extinguishing the fire. Extinguishment of the fire was only possible by burning back into the fire as it approached the northern boundary of Sections 1746 and 1747. The respondent was ready and able to attempt such an operation, but it failed to do so because it was unaware that the fire was approaching the vicinity of the northern boundary of the appellant's property. For the reasons discussed, the failure of the respondent to be so aware was not caused by a lack of reasonable care on the part of the respondent.

[71]

[86]

Three witnesses were involved. First, Mr Rick Greaves who was with other members of the fire brigade when observations of the position of the fire were made on 9 September 1995. There is no evidence that Mr Greaves was present on any other relevant occasion. The observations of the officers on 9 September were not controversial. There was no challenge to the evidence of the officers who made the observations.

[87]

The second person not called was Mr Roger Drummond. According to the affidavit of Mr Bruce Greaves, Mr Drummond accompanied Mr Greaves on the morning of 10 September 1995 when monitoring the fire to the north of Cox Peninsular Road and to the south of Section 1742. Mr Greaves said that after the monitoring he and Mr Drummond returned to their fire station. There was no cross-examination of Mr Greaves about this issue.

[88]

As with Mr Rick Greaves, counsel for the appellant was unable to identify the particular matters about which Mr Drummond might have given evidence and which might have been adverse to the respondent's case. I am unable to discern any basis upon which a reasonable conclusion could be drawn that Mr Drummond would not have assisted the respondent's case or would have given evidence which impacted adversely upon the evidence of Mr Baxter.

[89]

The third person was Mr Rod Cantlay. In June 1996 he was the Promotion Policy and Training Officer at the Bushfires Council. Neither in written or oral submissions did counsel for the appellant explain how the evidence of Mr Cantlay could have been of relevance.

[90]

In a written summary, the respondent identified a controversy at trial concerning different copies of a report prepared by Mr Baxter for the Bushfires Council. The original file of the Bushfires Council was produced. It appears that at some stage Mr Cantlay sent a number of documents to Mr Bird by facsimile. Inspection of the file apparently satisfied counsel for the appellant at trial who indicated that the matter had been clarified. Although counsel subsequently foreshadowed a Jones v Dunkel submission and made reference to this issue in written submissions to the trial Judge, the written submissions did not explain the basis of the contentions and no reference was made to the issue in the final address.

[91]

Counsel for the appellant as unable to demonstrate any basis upon which the trial Judge should have drawn an inference adverse to the respondent. Nor did counsel advance any basis upon which it could reasonably be concluded that the evidence of Mr Cantlay might have damaged the credibility of Mr Baxter.

[92]

The complaint relating to the failure of the respondent to call witnesses is without substance.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (74 paragraphs)

Parties

Cases Cited (3)