HIS HONOUR: By a further amended statement of claim filed 4 April 2017, Ms Sharon Patricia Weber ("the plaintiff") commenced proceedings against the Greater Hume Shire Council ("the defendant"), pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW), on her behalf and on behalf of the group members. There were 57 group members registered as affected persons. The plaintiff sought damages for negligence and, in the alternative, nuisance.
The Court gave judgment in relation to that application on 14 May 2018: Weber v Greater Hume Shire Council [2018] NSWSC 667 ("Weber No 1").
The Court made the following orders (Weber No 1 at [441]):
1. The plaintiff's claim is dismissed.
2. Subject to further orders of the Court, the plaintiff shall pay the defendant's costs of the proceedings as agreed or, in the absence of agreement, as assessed.
3. In the event agreement as to answers to the common questions, the plaintiff shall file and serve a joint answer to the questions within 21 days of this judgment. If there is disagreement as to the answer to the common questions, the parties shall file and serve their respective versions of the answers within the same timeframe. The matter will then be listed for directions, at a date to be fixed, to resolve any disagreement as to the common questions.
4. In the event any application is made by the parties as to costs such application(s) and a summary of submissions in support thereof shall be filed and served within 21 days of this judgment. In the event of such application(s), the Court will list the matter for directions.
On 4 June 2018, the parties filed answers to the common questions of law or fact filed on 31 March 2017 ("the common questions") in accordance with sub-para (3) above, save that the parities jointly sought that the Court not further list the matter to resolve any disagreement as to those answers and rather to resolve the matter on the papers.
I have extracted below the common questions posed in the proceedings in Weber No 1 at Annexure C of that judgment, together with the responses to the common questions by the parties including the helpful references they provided to Weber No 1 (although the reference to those passages in the following answers to the common questions should not be taken as an exhaustive identification of passages of the judgment bearing upon each question).
Unless there are additional observations by the Court with respect to an answer to a question, the answer provided should be understood as an acceptance by the Court of the proposed answer to a question by the parties.
It should also be noted that the common questions were drafted prior to the filing of a further amended statement of claim. Accordingly, the common questions include references to the amended statement of claim or "ASOC". This, however, does not appear to be an issue of great moment, particularly with paragraph referencing appearing to be unaffected.
[3]
(1) How did the fire in the vicinity of the Walla Walla Tip on 17 December 2009 (the Fire) start?
The cause of the Fire could not be identified: Weber No 1 at [111]-[160].
[4]
(2) Where did the Fire start?
The Fire commenced in the western side of the dumping area of the Tip: Weber No 1 at [102] and [110]. The general area of origin was inside the western area of the Tip: Weber No 1 at [105].
The defendant added reference to Weber No 1 at [161]:
No conclusion as to the precise location of the ignition of the fire was available on the evidence. Certainly the evidence does not sustain the contention by the plaintiff that the fire commenced at the top of the bund.
The answer is in accordance with [9] and [10] above.
[5]
(3) What caused the Fire to spread?
The main cause of the spread of the Fire in the available fuel within the Tip was the prevailing weather conditions: Weber No 1 at [403]. The defendant added that this was agreed by all three experts.
[6]
(4) Which fire prevention measures that should have been employed by the defendant at the Tip (and were not employed) would have stopped the Fire from starting or spreading?
Each party provided a detailed but differing responses to this question.
The plaintiff answered:
1. The plaintiff has failed to establish the cause of the fire. The plaintiff cannot, therefore, prove that the fire was caused in breach of any duty owed by the defendant to her (or the other group members): Weber No 1 at [162].
2. The plaintiff has proven, on the balance of probabilities, a breach of duty, with respect to escape, by the failure to sufficiently take those precautions against the risk of harm, namely, in the following areas: prepare and implement a fire management plan; create and maintain an effective firebreak; consolidate deposited waste into appropriate areas and remove fuel to prevent dangerous build ups: Weber No 1 at [400].
3. Both the precise location of the commencement and the cause of the Fire is unknown. Those important elements are relevant to any consideration as to whether the pleaded measures would have sufficiently slowed the spread of the Fire so as to permit the effective intervention of fire fighters: Weber No 1 at [102] and [417].
4. The plaintiff has not proved that if reasonable precautions were sufficiently taken, that the harm caused to the plaintiff by the spread of the Fire would have been avoided: Weber No 1 at [408].
The defendant answered:
1. The experts did not determine whether the Tip was adequately managed or managed reasonably or what the defendant should have done: Weber No 1 at [410].
2. Both the location of the commencement and the cause of the Fire is unknown. Those important elements are relevant to any consideration as to whether the pleaded measures would have sufficiently slowed the spread of the Fire so as to permit the effective intervention of fire fighters: Weber No 1 at [417].
3. The plaintiff has not proved that if reasonable precautions were sufficiently taken, the spread of the Fire would have been avoided: Weber No 1 at [408].
4. The earliest person to arrive at the Tip to fight the Fire was too late to prevent the escape of the Fire. It cannot be found, on the balance of probabilities, the Fire may have been stopped by the measures taken: Weber No 1 at [415].
I accept the answer provided by the defendant although I note that the answer merely encapsulates that which is expressed more fully in the judgment of the Court.
[7]
(5) Was it reasonably foreseeable to the defendant that waste at the Tip could ignite and sustain a fire (ASOC [10(a)])?
Each party provided a detailed but differing response to this question.
The plaintiff responded:
1. Yes.
2. The plaintiff has established that there was a risk of fires (of whatever cause, known or unknown) in tips and that there was an eminently foreseeable consequential risk of such fires escaping and causing damage unless sufficient reasonably practicable measures were taken to prevent such escape: Weber No 1 at [198].
3. The defendant should have foreseen and, in fact, did foresee there was a risk that fires can and often do start in landfills and, upon such ignition, may escape: Weber No 1 at [199].
The defendant responded:
1. Michael Davies, former Director Environment and Planning with the defendant was familiar with the risk of spontaneous combustion of cut grass and the potential for waste deposited at the Tip to spontaneously combust; and that pushing green waste piles would spread it out, which would also reduce the risk of ignition by spontaneous combustion. He conceded that cover of general refuse at the Tip with soil would reduce the risk of a fire started at the Tip from spreading: Weber No 1 at [207].
2. Mr Davies gave evidence that in 2006 there was a fire at the Henty tip which was the result of the burning of green waste spreading to the general garbage: Weber No 1 at [225].
3. Steven Pinnuck, General Manager of the defendant, acknowledged from 2000 the defendant was aware of fire risks posed by tips: Weber No 1 at [218].
4. The defendant's waste management strategies over time have recognised the risk of fire by the creation of a firebreak, separating waste disposal areas and burning green waste. The defendant implemented fire management strategies at each of its landfills: Weber No 1 at [200].
The answer to the question is that contained in the answers proposed by the plaintiff above although there is nothing erroneous in the supplementation provided by the defendant.
[8]
(6) Was it reasonably foreseeable to the defendant that if such a fire commenced, the risk of a bushfire of the spread and severity of the Fire was not insignificant (ASOC [10(b)])?
In the event that the risk of escape materialises because of the absence of appropriate precautions, the potential harm is very substantial if not catastrophic: Weber No 1 at [277].
[9]
(7) Was it reasonably foreseeable that a fire could ignite from waste kept and deposited at the Tip could ignite and sustain a fire (ASOC [13(a)])?
Each party relied upon their answer to common question (5) (see above at [18]-[20]).
[10]
(8) Was it reasonably foreseeable that if such a fire ignited within the Tip it could spread within the Tip, including by reason of:
[11]
(a) The condition of the firebreaks between different kinds of waste;
[12]
(b) The condition of trees, dry leaves or high grass within the Tip;
[13]
(c)The presence, if any of exposed combustible waste;
[14]
(d) The failure to suppress any fire after it commenced (ASOC [13(b)])?
Each party answered "yes" and relied upon their answer to common question (5) (see above at [18]-[20]).
[15]
(9) Was it reasonably foreseeable that if such a fire ignited within the Tip it could spread to surrounding areas causing bushfire, including by reason of:
[16]
(b) The condition of the firebreak around the Tip (ASOC [13(c)]);
Each party answered "yes" and relied upon their answer to common question (6) (see above at [21]).
[17]
(10) Was it reasonably foreseeable that the matters referred to in the previous paragraph presented risks to human life and property?
In the event that the risk of escape materialises the potential harm is very substantial if not catastrophic: Weber No 1 at [277]. The plaintiff also expressly agreed in its response.
[18]
(11) Did the foreseeable local conditions for the Tip and its surrounds include:
[19]
(12) Would a reasonable person in the position of the defendant have taken any one or more of the precautions against the Risks identified in paragraph 17 of the ASOC (ASOC [17])?
The plaintiff answered "yes" and observed a reasonable person in the position of the defendant would have taken the following precautions to avoid the spread of fire, in the event a fire ignited at the Tip:
1. Separating and isolating deposits of different types of rubbish that constituted fuel loads within the tip;
2. Creating and maintaining fuel free zones or areas including access roads between such deposits;
3. Covering waste with dirt or inert material;
4. Removal of grass, foliage and trees within the tip: Weber No 1 at [317]-[321] and [400].
The defendant accepted that "some" of the measures would have been taken and in answering this question made reference to the following passages of Weber No 1 as follows:
Some: [248(6)-(a-j)].
Some (a), (b), (c) and (d) [321].
Some (a), (b), (c) and (d) to prevent the spread of fire once ignited at the Tip [400].
The answer to the question is that a reasonable person in the position of the defendant would have taken the following precautions (a), (b), (c) and (d), as pleaded by the plaintiff at para 17 of her further amended statement of claim, to avoid the spread of fire in the event that fire ignited at the Tip (see Weber No 1 at [65], [248(6)], [261]-[262], [315]-[316] and [321]). In summary, those precautions are listed below:
1. prepare and implement a fire management plan;
2. create and maintain an effective fire break;
3. consolidate deposited waste into appropriate areas; and
4. remove fuel to prevent dangerous build ups.
[20]
(13) Did the defendant fail to take reasonable care by reason of any one or more of the matters set out in paragraph 18 of the ASOC (ASOC [18])?
The plaintiff has proven, on the balance of probabilities, a breach of duty, with respect to escape, by the failure to sufficiently take those precautions against the risk of harm, namely, in the following areas: prepare and implement a fire management plan; create and maintain an effective fire break; consolidate deposited waste into appropriate areas and remove fuel to prevent dangerous build ups: Weber No 1 at [400].
Overall, as to the claim based on the escape or spread of the fire, the plaintiff has proved the existence of a duty owed by the defendant and the defendant has breached that duty in failing to take certain measures to prevent the spread of the fire: Weber No 1 at [418].
[21]
(14) Was the Fire caused by any one or more of the matters set out in paragraph 18 of the ASOC (ASOC [18)?
No.
[22]
(15) Did the Fire substantially and unreasonably interfere with the use or enjoyment of the interests in land held by the plaintiff and group members (ASOC [24])?
No.
[23]
(16) Does section 733(2A) of the Local Government Act 1993 operate to deem that the defendant is not liable to the plaintiff and Group Members (AD [30])?
Not applicable as s 733 was not pressed by the defendant.
[24]
(17) Does section 43A(3) of the Civil Liability Act 2002 operate to deem that the defendant is not liable to the plaintiff and Group Members (AD [37])?
It was not necessary to consider the s 43A defence: Weber No 1 at [438].
[25]
(18) Does section 121(1) of the Crown Lands Act 1989 operate to deem that the defendant is not liable to the plaintiff and Group Members (AD [37])?
The plaintiff correctly submitted the Court made no finding. The defendant relevantly quoted the Court's observation in Weber No 1 at [432]: "The functions carried out by the defendant pursuant to Ch 6 of the Local Government Act (which include 'waste removal, treatment and disposal services and facilities') and the Crown Lands Act are exercises of statutory power or duty".
[26]
(19) What was the state of the Tip immediately prior to the fire on 17 December 2009?
The parties correctly referred to the following aspects of the judgment in Weber No 1:
1. A combination of external (or "perimeter") and internal fencing was used to define boundaries between the Tip and the adjoining properties and for the containment of rubbish". Along the eastern, southern and western boundaries it was a combination of steel posts, barbed wire and cyclone fencing: Weber No 1 at [16].
2. Within the formal boundaries of the Tip, there was a dumping area roughly divided into six separate areas for the dumping and treatment of waste: Weber No 1 at [17].
3. See Annexure A of Weber No 1.
4. In the general waste area, there was a large mound referred to throughout the proceedings as "the bund" or "the mound" of the Tip: Weber No 1 at [21].
5. The area alongside the western, eastern and southern boundaries between the perimeter fence and the netting fence consisted of a track that was approximately 3-5 metres wide. There was no firebreak within the netting fence (i.e. the dumping area). As at December 2009, the land comprising of the firebreak was uneven, included tall, uncut or burnt and fully cured grasses, as well as refuse of the nature of concrete and steel throughout it: Weber No 1 at [22].
6. Parts of the Tip, including areas within the dumping area, were inaccessible to vehicles due to, inter alia, large mounds of dirt, rough terrain, dense sections of tall grass and the swampy depression dominating the eastern half of the Tip: Weber No 1 at [23].
[27]
(20) What were the local conditions at the Tip and its surrounds at the time of the Fire?
In relation to the environmental conditions at the Tip, the parties referred to their answers at additional question (19) (extracted above at [37]) and cited the environmental conditions listed in Weber No 1 at [24] as follows:
1. Temperature: 14.5 to 40.3 degrees Celsius
2. Humidity: 8-89%
3. Wind: 76kph with gusts up to 107kph
4. Wind direction: north westerly.
It was also noted, there was no evidence of the state of the golf course other than the amount of fuel from grass: Weber No 1 at [274].
[28]
(21) What was the course of the Fire?
Fanned by the north-westerly wind the fire developed quickly. The fire spread beyond the formal boundary of the Tip on the south-east corner. (The fire did not extend beyond the external northern and western boundaries of the Tip. Nor did it spread north across the dirt road or in the direction of Townsview). It travelled across the golf course and into the paddock of Mr Jacob via the north-west corner of his paddock; it continued in a south-easterly direction toward the Walla Walla-Jindera Road. There are various accounts as to the exact time at which the fire jumped across the road, but it appears have occurred shortly after 2pm: Weber No 1 at [51].
Upon breaching the Walla Walla-Jindera Road, the fire travelled 11 kilometres south-east to the township of Gerogery which is 11 kilometres from the Tip. Gerogery is situated approximately 34 kilometres to the north of Albury on the Olympic Highway: Weber No 1 at [52].
The fire continued in a south-easterly direction before a southerly-westerly change came through. This change of wind direction created a number of fingers of fire along the northern front. An incident map prepared by the Rural Fire Service demonstrates a pattern of fire travel outward from a small area (see Annexure C of Weber No 1). The fire took approximately 1 hour to reach the township of Gerogery after escaping the Tip: Weber No 1 at [53].
See also Annexure D of Weber No 1.
[29]
(22) What caused it to spread?
This was already asked and answered at common question (3) (see above at [12]).
[30]
(23) What measures for fire control existed at the time of the Fire?
There was no evidence of a formal fire management plan prepared by the defendant: Weber No 1 at [323].
Each area of waste was determined by appearance and was generally separated by approximately 10 metres: Weber No 1 at [323].
The annual burn of green waste took place prior to the fire season in 2009: Weber No 1 at [378].
[31]
CONCLUSION
The common questions posed for the proceedings are answered in accordance with the above. The order for costs is, in the circumstances described below, confirmed. I note the plaintiff's claim is dismissed.
[32]
Costs
On 14 May 2018, as noted above, the Court made an order and a direction with respect to costs as follows:
1. "Subject to further orders of the Court, the plaintiff shall pay the defendant's costs of the proceedings as agreed or, in the absence of agreement, as assessed": Weber No 1 at [441(2)].
2. "In the event any application is made by the parties as to costs such application(s) and a summary of submissions in support thereof shall be filed and served within 21 days of this judgment. In the event of such application(s), the Court will list the matter for directions": Weber No 1 at [441(4)].
The Court notes that neither party made any application or submissions pursuant to order (4). Further, on 13 June 2018, the plaintiff confirmed by email that no application pursuant to order (2) was sought.
Hence, in the absence of any submission to the contrary, the order by the Court, with respect to costs is that applying in [49(1)] above. That order is hereby confirmed. I note the order is made upon the basis that costs follow the event: see Uniform Civil Procedure Rules 2005 (NSW), r 42.1; see also Oshlack v Richmond River Council (1998) 193 CLR 72; Hamod v State of NSW [2011] NSWCA 375 at [67]. It follows that the usual order for costs was made.
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Decision last updated: 31 August 2018