For the reasons I have given, and from the answers I have provided to each of the questions posed by the seven key issues set out in the parties' Key Issues Statement, it follows that the first defendant is liable to the test case plaintiff for damages for negligence and for private nuisance. It also follows in principle that she should be liable to each of the other plaintiffs in negligence and in private nuisance, subject to proof of damage.
It will also be seen that I have found that the plaintiffs' claims in negligence are apportionable claims for the purposes of the CLA, notwithstanding the existence of a non-delegable duty on the part of the first defendant. I have limited the liability for the loss and damage claimed by the plaintiffs as to 80% in the case of Ms Barrett and as to 20% in the case of Mr Robinson.
Finally, I have found that the CLA does not apply to a claim in private nuisance, as the only relevant fault feature in private nuisance is reasonable foreseeability, and failure to take reasonable care is not an element in the tort. The Wrongs Act however applies to the contribution proceedings between the first defendant and Mr Robinson, and I have found contribution between them in the same proportions as the apportionment I have made under the CLA.
I will hear counsel whenever convenient as to the terms of the orders to be made in the case of the test case plaintiff. However, as requested of me, my findings and conclusions have been expressed so as to produce a binding ruling that can then be applied arithmetically to the assessed losses of the remaining plaintiffs, when their individual claims arise for assessment, either in the course of post-trial settlement discussions, or in subsequent hearings as to their individual claims, should that become necessary.
[3]Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-39], p 1184; see the application of this reasoning in the judgment of Ward J in Quick v Alpine Nurseries Sales Pty Ltd[2010] NSWSC 1248.
Ms Barrett on the other hand, contends that this case is principally a causation case. She says that in order to prove that the fire on her property on 3 January was a necessary element of the harm to the plaintiffs, it must be proved that the campfire caused a fire to ignite six days after it had been alight in the immediate area around the tree stump and that it needs to be proved where that fire went. The defence case is that neither of those matters are capable of proof.
Along the lines of a "Merck order" in a class action, (Merck Sharp & Dohme (Australia) Pty Ltd v Peterson[2009] FCAFC 26, 355 ALR 20), I ordered, by consent, that the parties formulate "key issues" in the form of questions to be answered in my reasons for decision upon the initial trial.
The parties prepared a document entitled a Key Issues Statement. That document is as follows:
This is a largely circumstantial case in which the plaintiffs allege breach in four respects. It is as well therefore to note what was said recently by this Court in Brocklands Pty Ltd v Tasmanian Networks Pty Ltd[2020] TASFC 4 and also earlier in Langmaid v Dobsons Vegetable Machinery Pty Ltd[2014] TASFC 6, 24 Tas R 18.
In Brocklands, Blow CJ said at [37]-[47]:
'Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found'. 'A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.' Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA246 per McDougall J (with whom McColl and Bell JJA agreed) at [55].
'All that is necessary is that according to the course of common experience the more probable inference from the circumstances ... should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' Bradshaw v McEwans Pty Ltd(1951) 217 ALR 1 at 6.
'Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation': Langmaid, per Porter J at [124], citing Seltsam Pty Ltd v McGuiness[2000] NSWCA 29, 49 NSWLR 262 per Spigelman CJ at [89]; McDonald v Girkaid Pty Ltd[2004] NSWCA 297, Aust Torts Reports 81-768, per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [104].
42 This is no ordinary case. I have been unable to find any civil case in which findings have been made as to multiple breaches of duty, damage resulting from one or more of those breaches of duty, and insufficient evidence for the causative breaches to be established. There are certainly cases that stand for the proposition that a plaintiff does not need to establish precisely how an injury was suffered: Hamilton v Nuroof (WA) Pty Ltd[1956] HCA 42; (1956) 96 CLR 18 at 23-24; Kuhl v Zurich Financial Services Australia Ltd[2011] HCA 11, 243 CLR 361 at [53]- [54]; Duma v Mader International Pty Ltd[2013] VSCA 23, 42 VR 351 at [3]; Langmaid v Dobsons Vegetable Machinery Pty Ltd (above) at [141]. However those cases did not involve distinct breaches of duty, competing possible causes of harm, and a shortage of evidence pointing to one or more particular causes.
44 For a jury to convict on circumstantial evidence alone in a criminal case 'the circumstances must exclude any reasonable hypothesis consistent with innocence': Chamberlain v The Queen (No 2)[1984] HCA 7; (1984) 153 CLR 521 per Gibbs CJ and Mason J at 536. There is nothing in that principle that requires a jury to conclude that an accused person committed the crime charged in a particular manner when the evidence leaves open the possibility that the accused committed the crime in two or more ways, each of which are consistent with guilt.
171 As was pointed out in Neill-Fraser v Tasmania[2012] TASCCA 2 at [156]- [160] by Crawford CJ, with whom the other members of the Court of Criminal Appeal agreed:
227 As Crawford CJ has held, the primary answer to the appellant's submissions is to be found in Shepherd v R[1990] HCA 56; (1990) 170 CLR 573, and the well-known statements of Dawson J at 579 - 580, the particularly relevant parts of which have been set out in the learned Chief Justice's reasons at [159] - [160]. It is not the law that in all cases a trial judge should instruct the jury that they must be satisfied beyond reasonable doubt of all facts essential to their reasoning leading to satisfaction of guilt. However, it may sometimes be necessary or appropriate to identify an "intermediate fact" and to tell the jury that they must be satisfied beyond reasonable doubt of such fact before the ultimate inference of guilt can be drawn: Shepherd per Dawson J at 579, R v Merritt[1999] NSWCCA 29 at [70]-[71].
228 In Shepherd, Dawson J said that such a warning would not be appropriate where the evidence consisted of strands in a cable rather than links in a chain, the metaphor of Wigmore's which Callaway JA has described as helpfully describing "two distinct kinds of reasoning": R v Kotzmann[1999] VSCA 27; [1999] 2 VR 123 at 129 [16]. As Callaway JA went on to point out at [17], it does not follow that "wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt". [Original emphasis] Much depends on the fact or issue in question. As his Honour explained: "One or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable.'
'231 At least in Victoria, there is an abundance of authority for the express proposition that a judge may choose to direct, as a matter of prudence, that a particular fact or matter in a circumstantial case should not be used unless the jury is satisfied beyond reasonable doubt of that fact or matter. A judge is not required to form the view that the evidence is an indispensable link in a chain of reasoning before giving such a direction. Consciousness of guilt evidence is often the subject of a "prudential direction": see for example the discussion in R v Ciantar[2006] VSCA 263; (2006) 16 VR 26.
119 By virtue of the Civil Liability Act, s13(1)(a), the appellants need to establish that it was more probable than not that the respondent's breach of duty was a necessary element of the fire's occurrence. That involves the drawing of inferences. The discharge of the civil burden of proof was discussed by McDougall J (with whom McColl and Bell JJA agreed) in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[2008] NSWCA 246. At [55], his Honour summarised the position as follows:
121 In Jones v Dunkel[1959] HCA 8; (1959) 101 CLR 298 Dixon CJ at 304 said that an inference must not be drawn where it is but 'a choice among rival conjectures'. There must be '... evidence supporting some positive inference ... and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind'. His Honour referred to the above extract from Bradshaw (then unreported but the passage was set out in Holloway v McFeeters[1956] HCA 25; (1956) 94 CLR 470 at 480-481), and observed:
122 It follows, of course, that 'a court is not authorised to choose between guesses, even on the ground that one guess seems more likely than another or others': ACCC v Metcash Trading Ltd[2011] FCAFC 151; (2011) 198 FCR 297 per Buchanan J at 306 [31]. However, a court is entitled to draw an inference from 'even slim circumstantial facts that exist so long as that goes beyond speculation': Progressive Recycling Pty Ltd v Eversham[2003] NSWCA 268 at [7] per Young CJ in Eq (Ipp JA and Davies AJA agreeing); Condos v Clycut Pty Ltd[2009] NSWCA 200 per McColl JA at [68] (Campbell and Macfarlan JJA agreeing).
123 Expert opinion of a possibility can be used as circumstantial evidence, and a finding of factual causation may be made where the expert evidence 'does not rise above the opinion that a causal connection is possible'; the evidence will be sufficient if, but only if, the materials justify an inference of probable connection: Fernandez v Tubemakers of Australia Ltd[1975] 2 NSWLR 190 per Glass JA at 197. See also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 per Spigelman CJ at 274 - 275 [79] - [83] and, in the context of a 'fire' case, McDonald v Girkaid Pty Ltd[2004] NSWCA 297 per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [103], [107].
126 It is no answer to the question of whether something has been demonstrated as being more probable than not to say that there is another possibility open; the determination of the question turns on consideration of the probabilities: Kocis v S E Dickens Pty Ltd[1998] 3 VR 408 per Hayne JA at 430; Strong v Woolworths Ltd[2012] HCA 5; (2012) 246 CLR 182 per French CJ, Gummow, Crennan and Bell JJ at 196 - 197 [34]. In this case, it might be shown that it is more probable than not that the respondent's hot work caused the fire, while at the same time acknowledging the combined strength of the possibilities that the fire was not caused by hot work at all, and that it was caused by the hot work of first appellant's employee, Mr Michael Cooper." [Emphasis added.]
133 Whilst in some cases the inference might be drawn on that basis, that is not a rule of law; 'It is an aspect of an available process of drawing of conclusions about causation': Bauldserstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd[2008] NSWCA 243 per Allsop P (Beazley and Campbell JJA agreeing) at [240]. In Roads and Traffic Authority v Royal[2008] HCA 19; (2008) 82 ALJR 870, Kirby J at 888 [88] said that Dixon J in Betts had helpfully explained the way in which a finding of a breach of duty 'may open the way for (whilst not compelling) an inference of causation-in-fact.' See also Kiefel J at 897 [139]-[140]. For that process to alone justify drawing the inference, 'the facts proved need to be compelling': Stitz v Manpower Services [2011] QSC 268 at [109]. 'The facts must warrant no other inference inconsistent with a defendant's liability': Betts per Dixon J at 649." [Emphasis added.]
140 Lack of evidence about the precise mechanism of how injury or damage came to be suffered does not necessarily prevent the inference being drawn about the causal link. To begin with, a plaintiff does not have to establish that the precise sequence of events leading to the particular damage was foreseeable. It is sufficient if the general kind or type of injury is reasonably foreseeable: Chapman v Hearse[1961] HCA 46; (1961) 106 CLR 112 at 121; Rosenberg v Percival[2001] HCA 18; (2001) 205 CLR 434, per Gummow J at [64]; Metrolink Victoria Pty Ltd v Inglis(2008) 25 VR 633 per Neave JA at 636 [12] .
141 As to causation, the law does not insist on the need to demonstrate the mechanism of loss or damage 'to a fine degree': Duma v Mader International Pty Ltd[2013] VSCA 23 per Neave JA at [3]. See also Strong v Woolworths Ltd (above) at 196, [34], and Kuhl v Zurich Financial Services Australia Pty Ltd[2011] HCA 11; (2011) 243 CLR 361 per French CJ and Gummow J at 381 - 382 [53] - [54]." [Emphasis added.]
"19 However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v The Commonwealth[1904] HCA 34; (1904) 1 CLR 668 at p 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd[1978] HCA 30; (1978) 140 CLR 503 at p 513. The approach required by s.35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes." [Emphasis added.]
The plaintiffs submit that, while the High Court in Adeels was mainly focused on the question of whether a duty was owed, "it seems that these matters of principle ought to apply equally to the content of the duty and the question of breach (and so much is clear from the passage from the judgment set out above [11])".
They submit that a clear analogy can be drawn with the circumstances of the present case, as Part V of the FSA imposes restrictions on lighting fires during the fire permit period (see for example ss 63, 64 and 66), and it can safely be inferred that the lighting of fires during the fire permit period is controlled, because it is well‑recognised that lighting fires in Tasmania in the open air or on any land during the fire permit period risks the fire spreading and causing catastrophic bushfires.
The second and related point, they say, is that the duties cast on those responsible for campfires by the FSA should be understood as part of the price that is exacted for the statutory permission granted under the Act to light campfires. It is against this statutory background, they say, that the question of the content of the duty of care must be considered. Fires lit within 3 metres of any stump, log or standing tree are expressly prohibited because of the well‑recognised risk of such fires being difficult to control or extinguish, and a reasonable person in the position of Ms Barrett, in a fire prone area in the middle of summer, who was aware of fire escaping from her neighbour's property only one month earlier, would not have lit an illegal fire in a tree stump.
To put it another way, the plaintiffs say, a reasonable person in the position of Ms Barrett undertaking an activity that poses a potential hazard to the public safety, namely, lighting a fire on land in the open air, would comply with the law in doing so.
Next, that plaintiffs argue that in CAL (No 14) Pty Ltd t/as Tandara Motor Inn v Scott[2009] HCA 47, , the High Court quashed a finding of negligence against a licensee of a hotel who had returned keys to a motorcycle and the motorcycle itself to a patron who had been drinking in his establishment. The patron was killed during the short ride back to his home.
The first defendant submits that there was no breach of duty in the circumstances of this case.
Ms Barrett says that the case argued by the plaintiffs is that it was negligent to light a fire in a tree stump and then inadequately extinguish it by use of dirt and water only. But she says, the question is, were the actions taken unreasonable? She says that the law of negligence will ordinarily reflect the foresight, reactions and conduct of ordinary members of the community.
The plaintiffs say that those admissions, along with the fact she was the owner of the land from which fire escaped, give rise to a well-known category of duty. They rely on Burnie Port Authority (above). They say that the existence of a duty of care is to be determined as a matter of common law. The question whether the duty was breached in a manner amounting to negligence is to be determined according to the analysis required by Part 6 of the CLA. They rely on Benic v State of New South Wales[2010] NSWSC 1039; PWJ-1 v The State of New South Wales[2020] NSWSC 1235 at [67] ff; Gunnersen v Henwood[2011] VSC 440 at [360] ff and Erickson v Bagley[2015] VSCA 220 at [32] ff.
I accept those propositions as correctly stating the law
So, the plaintiffs say, for the moment, it may be said that Ms Barrett owed a duty to take reasonable care to avoid risk of harm and that it was not a duty to ensure that no harm befell the plaintiffs but rather it was a duty to take reasonable care, (Vairy v Wyong Shire Council[2005] HCA 62, 223 CLR 422, per Hayne J at [118] in the context of statutory authorities owing a duty of care).
They say that it may also be said that the standard of care required of a landowner with respect to the escape of fire is particularly stringent, and that even before Burnie Port Authority, the law of negligence recognised "the grave and widespread consequences of a bush fire may make the liability of a careless individual ruinous for him; but this only emphasizes the seriousness of the duty of care Hargraves v Goldman ; per Windeyer J at p 73)."
Next the plaintiffs say, again correctly, that the question whether Ms Barrett breached her duty of care to the plaintiffs commences with a consideration of the provisions of the CLA, and that the first step is that the plaintiffs must identify the "risk of harm" against which they allege a defendant would be negligent if reasonable precautions were not taken.
It is essential I agree, in considering the first step to identify the particular risk of harm to which the later steps will be applied. It is only through the correct identification of the risk that an assessment of the reasonable response can be made. See RTA v Dederer[2007] HCA 42, 234 CLR 330 at [59]- [61] and Hunt & Hunt v Mitchell Morgan[2013] HCA 10, 247 CLR 613 per French CJ, Hayne and Kiefel JJ at [43].
I also accept that at this stage of the inquiry it is sufficient if the risk of harm is described as a class of injury, as distinct from the particular injury actually suffered by the plaintiffs. This approach accords with the traditional common law approach (Chapman v Hearse[1961] HCA 46; (1961) 106 CLR 112 at 115; Mount Isa Mines Limited v Pusey[1970] HCA 60; (1970) 125 CLR 383 at 390 per Barwick CJ, at 403 per Windeyer J, at 414 per Walsh J) and more recent authority in this jurisdiction in Langmaid (above) at [140] where Porter J said:
The third element of s 11(1) of the CLA directs attention to the conduct of a "reasonable person". This element is, as the plaintiffs say, perhaps the one which most closely reflects the common law. As said by Campbell JA (with whom McColl JA and Sackville AJA agreed) said of the New South Wales equivalent of s 11(1) in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited[2009] NSWCA 263, 77 NSWLR 360 at [177]:
"177 While section 5B(2) articulates clearly the process of reasoning that would have been involved under the common law in application of the test in Shirt for identifying what steps the taking of reasonable care requires, it does not show any intention to alter the common law on that topic. That view of section 5B(2) has been applied previously in this Court: Council of the City of Liverpool v Turano[2008] NSWCA 270; (2008) 164 LGERA 16; 51 MVR 262 at [171] per Beazley JA (with whom Hodgson JA substantially agreed), [362] per McColl JA."
It will be recalled that key issue 4 raises the question as to whether, if Ms Barrett owed a duty of care as alleged, that duty was non-delegable; and if so, whether Ms Barrett is liable for any conduct of Mr Robinson in lighting the fire or failing to extinguish the fire on or after 28 December 2012.
In Leichhardt Municipal Council v Montgomery[2007] HCA 6, 230 CLR 22 at [22] Gleeson CJ, with whom Crennan J concurred, identified two kinds of non-delegable duty. The first arises where a statute or other law imposes a duty to act personally, and the second arises where the engagement of a third party to perform a certain function is consistent with the exercise of reasonable care by a defendant, but the defendant's legal duty is not merely to exercise reasonable care but also "to ensure that reasonable care is taken."
In that second class of case which embraces the present case, the plaintiffs submit the special duty arises where "the person on whom it is imposed ... is so placed in relation to [another] person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised" (Leichhardt at [13] per Gleeson CJ citing Kondis v State Transport Authority of New South Wales[1984] HCA 61; (1984) 154 CLR 672 at 687). They say that the the typical circumstances that will attract that second kind of non-delegable duty are "the conduct of extra-hazardous activities" (Leichhardt at [18]).
The plaintiffs submit that Leichhardt was not concerned with the conduct of extra-hazardous activities but that situation was authoritatively addressed by the Victorian Court of Appeal in AD & SM McLean Pty Ltd v Meech[2005] VSCA 305, 13 VR 241.
From the reasons of Nettle JA (as he then was), in McLean, the following principles appear:
The first defendant submits that if the only breach found is in lighting the fire then "the overwhelming responsibility" for that breach rests with Mr Robinson. Ms Barrett says that it was Mr Robinson who made the decision to have the fire in the tree stump; he thought it was a good place to have a fire; he set the fire; he decided on the type of fuel for the fire and collected it and he lit the fire and he put the logs on it.
By way of contrast, Ms Barrett says that she "seems" to have been inside while all these decisions were made and actions were taken. And she says that Mr Robinson got a lighter or matches from inside the house although she handed him a lighter.
She says that her reason for making the comment that "males can be hard to tell" she really could not be bothered with lighting a fire because it was getting later on that night, and they had not had tea. To the extent that it is not already clear from these reasons, I do not accept that explanation.
Ms Barrett says that if breach is found for inadequately extinguishing the fire, then Mr Robinson should carry "the greater share" of responsibility. She says that on the night of 28 December 2012 he was concerned only to ensure that problems would not occur during the night if the wind got up, and for that reason covered the area where the fire had been. On the other hand she says that, as Mr Robinson said, after he had gone to bed she was "frantically putting buckets of water on top of what was the fire basically which was now just dirt". And Ms Barrett says that in the days following, she "was diligent in checking that the fire was extinguished including after her observation of steam."
Ms Barrett says that if breach is found by reason of what occurred or did not occur in the days following the fire, responsibility ought to be "equally shared" for that aspect of the breach. Mr Robinson's evidence that had he known of the first defendant's observations of a wisp of steam in the stump, he would have taken action, ought to be given no weight because of the recognised dangers of "hindsight bias".
Finally, Ms Barrett says that in the event that all allegations of negligence are made out "a greater share of responsibility" rests with Mr Robinson for his actions in deciding to have the fire, deciding where the fire would be, setting and lighting the fire himself and taking minimal steps to extinguish it. Thereafter, she says, he was as well placed as she was to take action by way of checking to ensure the fire was fully extinguished.
The plaintiffs submit that the language of s 43B of the CLA "is akin" to the language employed in legislation governing contribution between concurrent tortfeasors, and that the considerations involved in making an apportionment under that legislation are well settled. Citing the well-known case of ; , they submit that the considerations involve:
"121 The defence of statutory authority requires that the nuisance be an 'inevitable consequence of the authorised undertaking'. If the nuisance was an inevitable consequence of the authorised undertaking, the defendant will only be liable if, in the exercise of its statutory powers, it acted negligently: Bankstown City Council v Alamdo Holdings Pty Ltd[2005] HCA 46; (2005) 223 CLR 660 [16]; Benning v Wong[1969] HCA 58; (1969) 122 CLR 249, 324 - 337 (Owen J). The reference to negligence is not to the tort. It is clear there is no requirement to prove that the defendant owed the plaintiff a duty of care.
123 Where the statute permits the specified activity to be carried on, it must be shown that what the legislation authorised could not be done without creating a nuisance and that the nuisance was not caused by negligence. The inevitability limb focuses attention, not on the execution of the specified activity, but on the decisions relating to whether, when or how to undertake the authorised activity. Thus, if the creation of a nuisance could have been avoided by the proper exercise of the statutory power (ie one that was consistent with its scope and purpose(s)), the defence will fail even in the absence of negligence: Melaleuca Estate Pty Ltd v Port Stephens Council[2006] NSWCA 31 [48] - [57]." [Emphasis added.]
In the present proceedings I am concerned with private nuisance and with its creation, not its abatement, and without any complications regarding the exercise of a statutory authority.
Second, the plaintiffs say that unlike public nuisance, which at least in "highway cases" has been absorbed into the general law of negligence, Brodie v Singleton Shire Council[2001] HCA 29, 206 CLR 512 at [55] per Gaudron, McHugh and Gummow JJ; Kirby J agreeing at [226], private nuisance remains as a separate tort to that of negligence, as was observed by McLure P in Southern Properties (above) at [117]-[119]:
In Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd[2018] VSC 768 Richards J expressed the principle this way at [96]-[98]:
It should be noted that a subsequent appeal against the decision of Richards J was confined to issues regarding the assessment of damages: GG & PM Burrell Pty Lt v Butler Market Gardens Pty Ltd[2020] VSCA 31.
The plaintiffs submit that suggestions in two recent New South Wales cases, namely Weber v Greater Hume Shire Council[2019] NSWCA 74, 100 NSWR 1; and Woodhouse v Fitzgerald (above), that nuisance, at least insofar as it might apply to cases of escape of fire from premises, was absorbed into the general law of negligence following the decision in Burnie Ports, are plainly wrong.
In Weber Basten JA, with whom Gleeson JA agreed, said at [27]:
The plaintiffs point out that nuisance was not in issue in Burnie Port Authority in the High Court, see at 528 (the plurality), 581.5 (McHugh J). They submit that the judgments of the plurality, Brennan J and McHugh J each differentiated between four discrete bases for liability, namely nuisance, ignis suus, the "Rule in Rylands v Fletcher" and negligence. The result of Burnie Ports was that ignis suus and Rylands v Fletcher were absorbed into the general law of negligence, but the Court specifically excluded nuisance from that amalgamation. They point out that nuisance was repeatedly identified as a continuing alternative to negligence, see at 556 (the plurality); 570.8-571.2, 572.5, 576.7-577.3, 578.1, 578.6 (Brennan J) and 592.2 (McHugh J).
They submit that given that no other intermediate courts of appeal, or superior courts at first instance, (Southern Properties (above), Butler Market Gardens (above) and Herridge v Electricity Networks Corporation (No 4)[2019] WASC 94), have construed Burnie Port Authority in the manner suggested by Basten JA in the two decisions assailed, and given the High Court's "qualification" as to nuisance in Burnie Port Authority and the recognition of that preserving effect in subsequent decisions in other superior courts, the two New South Wales decisions ought not be followed by this Court.
Such a course is open to me: see Farah Constructions v Say-Dee Pty Ltd[2007] HCA 22, 230 CLR 89 at [151] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Obeid v Lockley[2018] NSWCA 71, 335 ALR 615 at [224] (Leeming JA, Beazley P concurring). However, as Porter AJ said in Rae & Partners Pty v Shaw[2020] TASFC 14 at (Blow CJ concurring):
"In Farah Constructions Pty Ltd v Say-Dee Pty Ltd[2007] HCA 22, 81 ALJR 1107 at [134], the Court warned about intermediate courts of appeal too readily departing from its pronouncements. It went on to say though, that intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in other jurisdictions on the interpretation of non-statutory law, as there was 'a common law of Australia rather than of each Australian jurisdiction'."
In the present case I am faced with conflicting decisions of two intermediate appellate courts in other jurisdictions on "the interpretation of non-statutory law". Obviously I cannot follow both and, as I prefer the approach to the role of nuisance after Burnie Port Authority taken by McLure P in Southern Properties, to that of Basten JA in Weber and Woodhouse, I will follow her Honour. In my view the law of nuisance in cases of escape of fire, as opposed to the so called rule in Rylands v Fletcher itself, has not been absorbed into the general law of negligence in this country. The contrary is not submitted by the first defendant.
Third, the plaintiffs say, private nuisance concerns unreasonable interference in a plaintiff's enjoyment of interests in land. Its focus is the quality of the impact suffered by the plaintiff. The focus of negligence is the quality of the conduct of the defendant. So the two torts are qualitatively different.
Fourth, as to the issue raised by key issues 6(a) and (c), the plaintiffs observe that it makes no logical sense for negligence, a distinct and self-contained cause of action, to be an element in private nuisance. To hold otherwise would be immediately to render private nuisance otiose, at least in its "accidental cause" or "failure to abate" subcategories. That outcome, they say, is directly contradicted by Burnie Port Authority.
Fifth, they say, that although negligence is not a necessary element in private nuisance, the authorities do establish that private nuisance does require an element of "fault" (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2)[1966] 3 WLR 498 at 508 (Lord Reid delivering the judgment of the Board); Gales Holdings Pty Ltd v Tweed Shire Council[2013] NSWCA 382, 85 NSWLR 514 at [132], [139]; [280]).
Sixth, the plaintiffs say that "fault" for that purpose is not to be equated to a failure to take reasonable care.
The plaintiffs say that the relevant authorities on this issue can be taken as starting with Hargrave v Goldman[1963] HCA 56; (1963) 110 CLR 40; Goldman v Hargrave[1966] UKPC 2; [1967] 1 AC 645. That was a "failure to abate" case, as the landowner had neither created nor "adopted" the nuisance, but rather had acted negligently in his attempts to abate it. Negligence was the more apt tort, and was wholly adequate to dispose of the matter because the landowner was indeed liable in negligence.
In that case in the High Court, only Windeyer J addressed the distinction between negligence and nuisance, using the heading "(iii)" for nuisance and "(iv)" for negligence (and separately under "(v)", disposing of an arcane contention about a non-negligence, stand-alone "duty of care"). Most relevantly for present purposes, the plaintiffs say that Windeyer J at 62 made clear that "negligence is not a necessary element in nuisance". His Honour added that negligence "may be an ancillary element in some forms of nuisance" and cited Jacobs v London County Council[1950] AC 361, being a case of public nuisance (a "highway case"). In that case Lord Simonds at 374, also observed that "negligence is not necessarily an element in nuisance." On the appeal in Goldman v Hargrave the Privy Council held the landowner liable in negligence, and again put to one side the questions of nuisance as unnecessary to consider.
But, the plaintiffs say, what is especially telling, for the present discussion, is that in the interval between the High Court decision in Hargrave v Goldman, and the Privy Council decision in Goldman v Hargrave, the Privy Council also decided The Wagon Mound (No 2) which case held that negligence is not an essential element in nuisance, but that nonetheless at 656G, "fault of some kind is almost always necessary and fault generally involves foreseeability" (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) (above) at 508 (Lord Reid delivering the judgment of the Board), see also (above) at [132], [139]; [280].
Ms Barrett says that Le Miere J reasoned at [544] that the claim in nuisance in Herridge involved fault as the plaintiff's case rested upon the defendant's failure to take reasonable care. On that basis, the claims in nuisance were apportionable and were determined on the same basis as the apportionment of damages in the negligence claim. She says that that the pleadings of the plaintiffs are analogous to Herridge in that regard and that therefore, s 43A of the CLA is applicable. It would be illogical for the proportionate provisions of the CLA to apply for one tort that contemplates reasonable care and not another which also contemplates reasonable care.
As I have already held, in my view the tort of private nuisance does not involve an element of failure to take reasonable care. It follows that I do not accept the first defendant's analysis on this issue. I am conscious that the Western Australian Court of Appeal is due to hand down its decision in Herridge later this day, however, given the difference between the language of s 5A of the Western Australian Act and s 43A(1)(a) of the CLA, and the potential for appeal in that case and in this, I have not postponed the date for publishing these reasons.
On this key issue, the plaintiffs note that the term "apportionable claim" is defined in s 43A of the CLA, relevantly, as "a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care" and that it is clear that the word "claim" in the body of that definition "equates to the inclusion of the relevant head of loss in the particulars of damage, while 'action' is used in the present sense of 'cause of action'." They say that the qualifying phrase "arising ... care" conditions or qualifies the cause of action, not the particular claimed loss. That is, they say, it is the cause of action that must arise from the failure to take reasonable care, not the particular loss.
I agree that construction is to be preferred, particularly given the words in parentheses after the words "in and action for damages", namely, "(whether in contract, tort or otherwise)".
The plaintiffs submit that the requirement that a failure to take reasonable care be a technical element of the cause of action, and not merely a finding that might be made as an incidental matter or in respect of other pleaded causes of action, was recently "determinatively resolved" by the Victorian Court of Appeal in the Lacrosse Building Fire litigation They observe that in a very detailed consideration of the controversy appearing from prior cases, the Court of Appeal at [116], endorsed the conclusion of MacFarlane JA in an earlier NSW Court of Appeal decision at that:
I note that Richard Douglas QC observed in an article entitled Please Apportion Me!-the VSCA clarifies candidature for an apportionable claim published in the journal Australian Civil Liability, June 2021, that Macfarlan JA had repeated his dictum in Perpetual Trustee Company, with the approval of two other members of the NSW Court of Appeal, in Rahme v Benjamin & Khoury Pty Ltd[2019] NSWCA 211, 100 NSWLR 550 at [132]-[137].
The plaintiffs submit that intermediate appellate courts should not depart from an interpretation placed on national legislation, in this case the apportionment regime, by other intermediate appellate courts unless convinced the interpretation is plainly wrong (Allianz Australia Insurance Ltd v Mercer[2014] TASFC 3, 309 ALR 154, per Porter J at [155].) They say that Tanah Merah is plainly correct, and that for the reasons given in that case at [118], "the view that the nature of the claim itself is irrelevant to the question whether the claim is one 'arising from a failure to take reasonable care' has a series of anomalous consequences."
Further, the plaintiffs submit, the result in Tanah Merah was also suggested by and is consistent with analogous High Court authority. The position concerning the candidate circumstance of a claim under federal (or, by parity of reasoning, State or Territory Fair Trading) legislation for contravention of s 18 of the Australian Consumer Law was resolved by the High Court in Selig v Wealthsure Pty Ltd[2015] HCA 18, 255 CLR 661 at [37]. That case held that a claim under one statutory provision having as one element a requirement of misleading conduct ( s 1041H) was apportionable, but claims under other provisions were not, even though the causes of action under the other provisions also required an element of misleading conduct.
They note that the High Court overturned the findings of a Full Court of this Court against the licensee on duty, breach and causation. At [39] to [41], Gummow, Heydon and Crennan JJ pointed out that the imposition of a duty of the type pleaded against the licensee would result in legal incoherence in a sense that it lacks coherence with other torts, the law of bailment and the legislative regime in relation to alcohol. The plaintiffs accept that this analysis goes to the question of duty, rather than breach. However, they say, analogous reasoning is that a finding that Ms Barrett did not breach her duty of care to the plaintiffs by lighting an illegal fire in a tree stump would lack coherence with the legislative regime in relation to the lighting of fires in Tasmania.
These arguments are attractive and not without merit, to the extent at least that it seems to me that s 69 of the FSA, cannot be ignored on the question of what a reasonable person might do, and as noted in Sibley v Kais (above), on the question of fact as to whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing a duty under a statute. Moreover s 69 is "salutary" and must be seen as addressing an understood risk of such fires being difficult to control or extinguish. However, in my view, the passages set out above from Adeels Palace at [11] and [30], enjoin me to first view the question of breach through the prism of s 11(2) of the CLA. While that section does not exclude "other relevant things", if the probability that the harm would occur if care were not taken, and the likely seriousness of the harm were low, and the burden of taking precautions to avoid the risk of harm and the potential net benefit of the activity that exposes others to the risk of harm were high, there might be limited scope for the question of breach to turn on the statutory duty, as Sibley v Kais itself demonstrates. The question remains one of fact and the finding is not foreclosed by the mere existence of s 69.
The plaintiffs also rely generally on Burnie Port Authority and AD & SM McLean Pty Ltd v Meech[2005] VSCA 305, 13 VR 241, for the proposition that it is appropriate to describe the duty as "stringent" or of a "special kind", such that it required the landowner to exercise "special care" or take "special precautions" and to "ensure that reasonable care was taken".
In the plaintiffs' submission a similar approach ought to be taken toward Ms Barrett's obligations of care in the present case. This, is not, they say, to elevate her exposure to anything like a strict liability but simply to emphasise that community standards, reflected in the legal standard, would expect her genuinely "to exert herself - to make a real effort - to be careful as to the circumstances and location in which she lit or permitted a fire to be lit, and as to the steps taken to be absolutely sure that the fire was completely extinguished." They say that the evidence has shown that her efforts were perfunctory at best. As will be seen, I accept that submission.
a comparison of the culpability of the parties, that is, the degree to which each party has departed from the standard of what is reasonable;
a consideration of the relevant importance of the parties' acts in causing the damage (the causal potency consideration);
a comparative analysis of the whole conduct of each negligent party in relation to the circumstances;
a finding upon a question, not of principle or of a positive finding of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations;
an individual choice or discretion, as to which there may well be differences of opinion by different minds.
In this case, the plaintiffs submit that Ms Barrett's conduct warrants a greater share of the responsibility for the harm because:
both she and Mr Robinson participated in the lighting of the fire, but to that element of responsibility must be added the consideration that Ms Barrett was the landowner and Mr Robinson was the invitee;
Ms Barrett had actual knowledge of the TFS booklets and that it was "common sense" not to light a fire in a tree stump;
Mr Robinson at least undertook some attempt to check that the fire was out, on 29 December by holding his hand over the stump to check for heat. His efforts were inadequate, but by comparison Ms Barrett did nothing except glance at the stump;
Ms Barrett was aware of having seen what she took to be steam rising from the stump, I have found on 1 (or possibly 2) January 2013. She did nothing in response beyond looking at the stump. She did not tell Mr Robinson. (I place little weight on the evidence he gave, in retrospect, of the extensive steps he said would have taken in response.)
The plaintiffs say that Ms Barrett's departure from the standard of care required of her significantly outweighed Mr Robinson's contribution. Her conduct, viewed as a whole, compared to Mr Robinson's conduct, warrants a significantly greater share of the responsibility for the damage caused. They submit that the apportionment should be 80% to Ms Barrett and 20% to Mr Robinson.
In my view, the considerations going to apportionment advanced by the first defendant focus too closely on one only of the relevant indicia, namely, the degree to which, as a matter of fact, each party departed, by their acts or omissions, from the standard of what is reasonable. To my mind the causal potency consideration is of importance in this case, as but for Ms Barrett's failure to do anything but look at the stump when she observed steam rise from it, the Forcett bushfire may never have occurred. It is true that in that sense, the same can be said for each of the other breaches on her part and on the part of Mr Robinson, but Ms Barrett's failure was, in reality, the last in time and her failure to properly investigate why steam had appeared, or even to tell Mr Robinson so that another mind might have been brought to bear on the mystery, were opportunities lost to prevent the fire even after it had been lit and had not been properly extinguished.
Moreover, Ms Barrett's breach of duty with regard to the failure to properly investigate the steam she observed, was exclusively her breach of duty. Mr Robinson did not observe the steam and Ms Barrett did not tell him of her observation. Rather he learnt of it only well after the bushfire, when Ms Barrett was being interviewed by Mr Bones.
Her breach in that regard is also very relevant to a comparative analysis of the whole conduct of each of her and Mr Robinson as negligent parties on the considerations of proportion, balance and relative emphasis, and of weighing different factual considerations enumerated by her in her written closing submissions, as set out above.
Another matter of significance on those last mentioned considerations is Ms Barrett's superior understanding of the risks of bushfire occurring by lighting fires generally and in tree stumps specifically.
As has already been noted Ms Barrett had long experience of bush blocks. Her sister had a block at Kingston, and Ms Barrett was well familiar with the recommended precautions for managing bushfire risks on such properties. From the time she acquired 242 White Hill Road she was meticulous in clearing the defendable zone immediately around the residence, and in reducing the vegetation fuel-load elsewhere on the block, and she had seen the TFS booklets on managing bushfire risks, but in any event she regarded their recommendations as "common sense".
It is true that Mr Robinson participated in some of the clearing work but the evidence makes it plain that Ms Barrett had a better understanding of the relevant risks. They had several larger bonfires over that stump. Indeed, Ms Barrett told the police in January 2013 that sometimes, in the days after larger bonfires, the last of which was lit in about September 2012, she would notice the area within the rim of the old stump still smoking or steaming. She said that she would pour more water into the pit and saw it "bubbling and sizzling".
Mr Robinson on the other hand had no such experience. He said in his evidence-in-chief that he did not have "any difficulty" at all from any of those fires with them continuing to burn and "no difficulty" with roots from those fires smouldering, or steam or smoke coming off them in the days following the fires.
In cross-examination he said that apart from those larger bonfires, of the smaller bonfires or campfires that were lit (none of which were lit in the old stump), none were built over the top of other tree stumps. He said that he had no recollection of having ever lit a campfire over an old tree stump.
Moreover, unlike Ms Barrett, there was no suggestion in the evidence that Mr Robinson was familiar with the TFS booklets or regulations, or regarded all of them, and the relevant part of s 69 of the FSA, as "common sense".
In the plaintiffs' submission, that aspect of The Wagon Mound (No 2) is "the key". That the touchstone for liability in nuisance is foreseeability of harm (Burnie Port Authority at 537.5; Riverman Orchards Pty Ltd v Hayden[2017] VSC 379 at [180] ff (John Dixon J); Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd (above) (Richards J) at [98]).
Foreseeability is not to be equated with negligence. It is not even synonymous with the "duty of care" element of negligence they say, since foreseeability is only one consideration going to the existence of a duty. Moreover, they add, that the other indicia of duty in negligence such as control, availability and burden of precautions and so on almost all focus on the defendant rather than on the plaintiff and that the difference is to be expected, given the different emphases of the two torts. (The modern statement of the non-exhaustive list of indicia of a duty of care in negligence is found in Caltex Refineries (Qld) Pty Limited v Stavar[2009] NSWCA 258, 75 NSWLR 649 at [103] per Allsop P.
The plaintiffs say that once it is appreciated that the touchstone for liability in nuisance is simple foreseeability then the special place of that tort, within the Australian common law, is easily discerned. In short, they say:
the element of "fault" required for private nuisance translates to the creation of, or failure to abate, or cause of unreasonable interference in others' interests in private land, in circumstances where the unreasonable interference is foreseeable; and
since foreseeability is a step short of negligence, negligence is not a prerequisite to liability in private nuisance.
Thus they say, the two torts remain distinct, and liability in private nuisance can appear as something stricter than liability in negligence. That is not to say, and the plaintiffs say that they do not say, that private nuisance is a tort of actual strict liability. They accept that concepts of unreasonableness do apply but say that they relate to the unreasonableness of the impact on the plaintiff rather than unreasonableness in the conduct of the defendant.
On that last mentioned issue the plaintiffs submit that their analysis as to the elements of private nuisance as I have set it out above, reflects the decisions of the High Court in Hargrave, the Privy Council in Wagon Mound (No 2), the High Court in Burnie Port Authority, the Western Australian Court of Appeal in Southern Properties (WASCA), and most recently the Victorian Supreme Court in Riverman Orchards and Butler Market Gardens. However, they say, three other decisions, that also consider the question of whether negligence is an element of private nuisance, require mention.
The first, is Herridge v Electricity Networks Corporation (No 4) (above) at [542], the "Parkerville Bushfire" litigation. In that case Le Miere J accepted the continuing status of private nuisance as a tort discrete from negligence but held that, at least in cases of accidental escape of fire, the requisite element of "fault" in private nuisance did require proof of negligence. However. Parkerville was per incuriam of Riverman Orchards and Butler Market Gardens. The plaintiffs note that this aspect of Parkerville is currently awaiting judgment on appeal and submit that it ought not to be followed in preference to the other authorities listed above. I agree and propose to follow what I regard as the other stronger and more jurisprudentially rational line of authority as analysed by the plaintiffs as set out above.
The second and third decisions are the two NSW Court of Appeal decisions in Weber v Greater Hume Shire Council (above) and Woodhouse v Fitzgerald (above), I have dealt with these cases earlier in these reasons on the question of whether nuisance had been absorbed into the general law of negligence.
The plaintiffs say that Weber is not directly relevant on the present issue as it did not concern a claim in nuisance. They mention it only because its analysis of the duties of landowners in negligence in respect of fire was then cited in Woodhouse.
Woodhouse did concern claims both in negligence and in nuisance. But very importantly, the plaintiffs point out, and as will have been observed from what I have earlier written, the nuisance claim was expressly pleaded as based upon the negligent acts of the defendant (see at [45]-[47]). That is to say, the pleading effectively incorporated negligence into the plaintiffs' nuisance case, with the result that the nuisance claim there was framed as being based upon a failure to take reasonable care. This they say, and as I have already observed, means that the observations of Basten JA on the question of whether nuisance ordinarily depends upon a failure to take reasonable care were obiter dicta.
Nevertheless, the plaintiffs say, the Court in Woodhouse did consider the present question. It noted at [37] that the plurality in Burnie Port Authority had reserved some continuing role for nuisance separately from negligence, but the analysis they then undertook as to the scope of that "unparticularised qualification" did not address in any considered way the plaintiffs' analysis on the present question as set out above. The critical distinction between reasonable foreseeability (the fault element that the plaintiffs have identified) and reasonable care is touched upon only with reference at [40] to Cambridge Water Co v Eastern Counties Leather Plc.Wagon Mound (No 2) was cited only in a footnote acknowledging that it was cited in Cambridge ([40] fn25) and Goldman v Hargrave (above), was not addressed at all in the present context. The Victorian first instance decisions in Riverman Orchards (above) and Butler Market Gardens (above) were likewise not mentioned.
The plaintiffs say that it may be accepted that Woodhouse, albeit obiter, does appear to hold that nuisance requires, as an element, a lack of reasonable care by the defendant, but in their submission it is not binding on me, for the reason that Woodhouse on this issue is squarely at odds with "the anterior, superior and binding authorities in Goldman v Hargrave, The Wagon Mound (No 2) and Burnie Ports."
To the extent it is not already clear from what I have written, I accept the plaintiffs' submission.
Thus, I accept that the principle established by the first two of those last mentioned cases, and "preserved" in the third, is that the "fault" required for nuisance is the doing of the act of commission or omission in circumstances where it was reasonably foreseeable that it might result in unreasonable interference in the enjoyment, by persons in the class including the plaintiffs, of interests in land. There is no further requirement that the act or omission also involve a failure to take reasonable care.
It follows that I do not accept the submissions of the first defendant on this issue, to which I will now turn.
As to the role of reasonable foreseeability and reasonable care in a claim for private nuisance, Ms Barrett says, citing, Bryson JA in Sutherland Shire Council v Becker[2006] NSWCA 344, 150 LGERA 184 at [119] citing Burnie Port Authority v General Jones Pty Ltd[1994] HCA 13; (1994) 179 CLR 520; see also Sedleigh-Denfield v O'Callaghan[1940] UKHL 2; [1940] AC 880, at 904-905, as cited by Preston CJ in Robson v Leischke[2008] NSWLEC 152, 72 NSWLR 98 at [44]- [46] and Bryson JA in Sutherland Shire Council v Becker at [118], says that strict liability for nuisance is no longer good law. The plaintiffs do not submit to the contrary.
She submits that it is well established, as noted by Bryson JA in Sutherland Shire Council v Becker (above) at 119 citin_g Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2_)) [1966] UKPC 1; [1967] 1 AC 617, at 639 and Montana Hotels Pty Ltd v Fasson Pty Ltd(1986) 61 ALJR 282, at 284 that nuisance necessarily involves fault of some kind. And she says, citing Preston CJ in Robson v Leischke (above) citing The Wagon Mound (No 2), at 639-640; Leakey v National Trust for Places of Historic Interest or Natural Beauty[1979] EWCA Civ 5; [1980] QB 485, at 522, 524; Solloway v Hampshire County Council(1981) 79 LGR 449, at 452, 457-458, 460 and 461; City of Richmond v Scantelbury[1991] VicRp 44; [1991] 2 VR 38, at 45; Cambridge Water, at 300_; Delaware Mansions Ltd v Westminster City Council_ [2001] UKHL 55; [2002] 1 AC 321, at 332 [29], that such fault generally involves foreseeability. This analysis does not to this point appear to differ from the gravamen of the plaintiffs' submission.
I set out in full the following section of the first defendant's written closing submissions as they are not readily capable of a succinct narration:
Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T
I accept the plaintiffs' submissions on this issue, in particular because, as Tanah Merah noted, the result ensures consistency with other provisions in the apportionment regime, and in particular (in Tasmanian terms) s 43B. That is, if a given head of loss (claim) is recoverable both upon a cause of action that arises from a failure to take reasonable care, and upon another cause of action that does not require such a failure, then the defendant remains liable under the second cause of action for the whole of the loss on the traditional solidary basis. The practical consequence is that the liability is not apportionable.
I agree, with respect, that their Honours' reasoning in Tanah Merah is compelling and I would not presume to depart from it.
And I agree with the plaintiffs' submission that as the fault element in private nuisance is only foreseeability and not a failure to take reasonable care, it follows that the cause of action in private nuisance does not "arise from" a failure to take reasonable care. There might in fact have been a failure to take reasonable care, but since the cause of action does not require it, the s 43A definition is not satisfied.
This result is not inconsistent with Woodhouse (above) where the plaintiff actually pleaded his nuisance claim as arising from the negligence of the defendant. Given that pleading, it understandably followed that the particular nuisance claim in that case by definition "arose" from the defendant's failure to take reasonable care. At the very least I agree with the plaintiffs' submission that such anomalous pleading in Woodhouse means that the case is distinguishable from the present case, on this issue of apportionability of liability in private nuisance. In the present case, because the nuisance is pleaded without incorporating any element of a want of reasonable care, and because nuisance does not otherwise depend on a want of reasonable care, it does not meet the definition of an "apportionable claim" and it is not apportionable.