[2010] HCA 5
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660
[2005] HCA 46
Bankstown City Council v Zraika (2016) 94 NSWLR 159
[1961] HCA 46
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
[2014] ACTCA 45
Elston v Dore (1982) 149 CLR 480
Fairall v Hobbs (2017) 347 ALR 151
Source
Original judgment source is linked above.
Catchwords
[2010] HCA 5
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660[2005] HCA 46
Bankstown City Council v Zraika (2016) 94 NSWLR 159[1961] HCA 46
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1[2014] ACTCA 45
Elston v Dore (1982) 149 CLR 480
Fairall v Hobbs (2017) 347 ALR 151[2017] NSWCA 82
Fitzgerald v Penn (1954) 91 CLR 268
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514[1985] HCA 37
March v E & MH Stramare Pty Ltd (1991) 99 ALR 423[1991] HCA 12
Marcic v Thames Water Utilities Ltd [2002] QB 929
Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319[2015] WASCA 169
Perre v Apand Pty Ltd (1999) 198 CLR 180[1999] HCA 36
Price v State of New South Wales [2011] NSWCA 341
Pyrenees Shire Council v Day (1998) 192 CLR 330[1998] HCA 3
Road and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360[2009] NSWCA 263
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330[2012] WASCA 79
Stapley v Gypsum Mines Ltd [1953] AC 663[2001] HCA 59
Tame v New South Wales (2002) 211 CLR 317[2002] HCA 35
Vairy v Wyong Shire Council (2005) 223 CLR 422
221 ALR 711
[2005] HCA 62
Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701
Wyong Shire Council v Shirt (1980) 146 CLR 40
Judgment (69 paragraphs)
[1]
BACKGROUND AND GEOGRAPHY OF THE TIP
The defendant was constituted under the Local Government Act 1993 (NSW) ("the LG Act") for a designated area (see s 219). It is a body politic of the State with perpetual succession and the legal capacity of powers of an individual within the State of New South Wales (see s 220(1) of the LG Act).
The defendant has a general function to provide services to the community including waste management services (s 24 of the LG Act).
The process by which the defendant became responsible for the Tip may be briefly summarised:
1. By s 92 of the Crown Lands Act 1989 (NSW), the "Minister" was empowered to establish a reserve trust by notification in the gazette.
2. An official notice of Reserve 49269 at Walla Walla for the purpose of night soil depot and rubbish depot was notified in the Government Gazette of 24 September 1913. This established the Culcairn Shire Council Crown Reserves Trust ("the Trust") under s 92.
3. Under s 95 of the same Act, the defendant was appointed to manage the affairs of the Trust. The Tip was not dedicated or reserved as a Public Reserve for the purposes of s 98 of the Crown Lands Act.
4. The defendant is not the owner of the land upon which the Tip is situated. The power and functions it possessed over the Tip was not because it was in occupation of the land per se, but it was an occupier of the land which constitutes the Tip.
The Tip was originally operated by the Culcairn Shire Council ("CSC"). In 2004, the CSC amalgamated with two shires, namely, Holbrook and Hume, to form the defendant. In the period 2004-2010, the defendant managed up to 10 waste facilities located at Brocklesby, Burrumbuttock, Culcairn, Gerogery, Henty, Holbrook, Jindera, Mullengandra, Woomargama and the Tip.
The Tip was approximately 3 kilometres south of Walla Walla. It was located to the west of Walla Walla-Jindera Road. The Walla Walla-Jindera Road connected the townships of Walla Walla and Jindera; it commenced at the corner of Commercial Street and Walla Walla Road and continued south through to the township of Jindera. The Tip was accessed by an unmarked dirt road adjoined to the Jindera Road ("the dirt road").
A road gate was erected 40 metres down the dirt road opposite the Walla Walla Golf Course clubhouse. Beyond the road gate the dirt road continued in a westerly direction alongside the abandoned Walla Walla Golf Course ("the golf course") (disused since 2007), which was situated to the south of the dirt road. North from the dirt road was farm land which included paddocks that belonged to Mr Jeffrey John Pumpa (which lay north of the Tip). The dirt road terminated at the end of the Tip.
The Tip entrance was located off the dirt road. Access was sought via attendance upon a "hut" situated directly opposite the Tip entrance and was approximately 150 metres from the dumping area within the Tip. The hut was manned by a Tip Attendant, employed by the defendant, each Wednesday and Sunday between 2 and 5pm. The Tip Attendant collected payment and oversaw the dumping of refuse at the Tip. Outside those times the Tip was closed to the general public and the road gate was padlocked. (On the evidence before the Court it was revealed both Messrs Maxwell David Jacob and Pumpa had keys to access the Tip. Additionally, a spread sheet of keys given out to people in relation to the Culcairn, Walla Walla and Henty landfill gates was also before the Court and titled "Master Key System").
The Tip was around 10 acres in area. A survey plan produced in 1913 shows the dimensions of the Tip to be 2000 x 5000 links (approximately 400 x 100 metres) (see Annexure A). The distance between the northern to southern boundaries was around 100 metres.
The Tip was bounded by the golf course, as noted above, and substantial farmland. The golf course stretched along the eastern and southern boundaries of the Tip. The land on which the golf course was located was owned by the Department of Primary Industries - Lands (formerly the Department of Lands) for and on behalf of the Crown in right of the State of New South Wales.
There was also swampy depression within the eastern region of the Tip that extended west from the adjoining golf course.
The land generally to the north of the Tip was known as "Townsview" and leased by Mr Pumpa, together with his wife, Ms Christine Pumpa. The property consisted of residential, commercial activities and farmland. It occupied 550 acres of land. The farmland, directly opposite the Tip, consisted of paddocks situated alongside the north of dirt road for Mr Pumpa's sheep. Part of Mr Pumpa's property also abutted the south and western boundaries of the Tip. Mr Pumpa used the Tip from time to time and had direct access via a gate, situated along the western boundary of the Tip, from his property.
The commercial activity undertaken on Townsview consisted of a factory complex, "Everlast tanks" ("the factory"), and was owned and operated by Mr Ray Reeves. The factory was approximately 400-500 metres north of the Tip.
Further farmland, situated south-east of the Tip and directly bordering the southern side of the golf course was a paddock owned by Mr Jacob. Mr Jacob lived with his family in Springvale which was 2 kilometres south of the Tip.
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. Turning first to the external fencing, the original dividing fence between the golf course and the Tip, alongside the eastern boundary of the Tip, was a combination of steel posts, barbed wire and cyclone fencing (referred to as "a steel dropper fence") (it remained at 2009). That same external fencing extended along the whole of the southern portion of the Tip. A similar combination of steel posts, barbed and cyclone wires also extended alongside the western boundary (hereinafter the external fencing of the Tip shall be referred to as "the perimeter fence").
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. The areas were arranged in a horseshoe shape (see Annexure B). The perimeter of the dumping area was defined by a rural fence, described interchangeably as a "netting fence", "internal fence", "mesh fence" and "high fence" (hereinafter it shall be referred to as "the netting fence"). This netting fence was around 6 ft in height and served for the containment of refuse.
It should also be noted, in this respect, by consent, the Court conducted a view of the Tip. The Court also took a view from Mr Pumpa's property on Townsview and, in doing so, undertook observation of the Tip from that location. A summary of the view was prepared by the plaintiff and accepted by the defendant as a fair representation of the view undertaken by the Court. It may be noted that that summary contains a reference to differences between the state of the Tip upon inspection by the Court and that which existed at the time of the fire.
I will now turn to the internal layout of the Tip, with reference to Annexure B.
Annexure B is a marked up aerial photograph of the Tip; identifying the general locations of various designated waste areas. It features six red stickers that indicate, by handwritten markings, the primary dumping zones for specific types of waste within the dumping area, namely, general waste, concrete, green waste, scrap metal, tyres and glass.
During the course of evidence, further clarification was provided as to the layout. The western end was designated for general waste, the southern for general landfill, and towards the east were allotted areas for green waste, scrap metal, tyres and glass. Identification was determined by appearance, in the absence of any signage, and each section was generally separated by approximately 10 metres. In the general waste area, there was a large mound referred to throughout proceedings as "the bund" or "the mound" of the Tip (hereinafter referred to as "the bund"). The bund commenced approximately halfway between the southern and northern boundaries, and occupied the north-west region of the Tip. The top of the bund was not visible from within the hut.
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. The track was designed to be graded in order to produce a firebreak within the Tip (it was referred to throughout the proceedings as "the firebreak"). It was the only firebreak with the Tip (I will return to consideration of its preventative function, as a firebreak, later in this judgment). 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. The land could not be traversed by machinery so as to cut it.
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.
[2]
Weather Conditions
On Thursday, 17 December 2009, the weather conditions at the Tip were typical for the beginning of summer in south-east New South Wales. The temperature throughout the day ranged between 14.5-40.3 degrees Celsius and the humidity between 8-89%. It was a day of "extreme" fire danger with wind traveling at 76 kilometres per hour with wind gusts up to 107 kilometres per hour in a north westerly direction.
Information from the Albury Airport weather station, which was located 33 kilometres to the south of the Tip and was the nearest source of calibrated weather data, indicated the following conditions over the course of the day:
1. At 1.30pm the temperature was 38.6 degrees Celsius with 11% humidity. The wind travelled in a north-north-west direction at 35 kilometres per hour with gusts up to 54 kilometres per hour.
2. At 2.32pm the temperature was 38.3 degrees Celsius with 11% humidity. The wind travelled in a north-west direction at 41 kilometres per hour with gusts up to 63 kilometres per hour.
3. At 2.46pm the temperature was 29.3 degrees Celsius with 37% humidity. The wind travelled in north-west direction at 76 kilometres per hour with gusts up to 107 kilometres per hour.
4. At 6.00pm the temperature was 28.6 degrees Celsius with 41% humidity. The wind travelled in a west-south-west direction at 37 kilometres per hour with gusts up to 54 kilometres per hour.
Additionally, weather data was collected from the Walla Walla Post Office ("the post office") which included the following:
1. As to rainfall in Walla Walla prior to the fire, there had been 27 mm of rainfall between 21-23 November 2009 and 1.6 mm on 9 December 2009.
2. As to "solar flux", on 16 and 17 December 2009 there had been a reading of 33 megajoules per square metre and 23 megajoules per square metre, respectively.
(The data collected from the post office was particularly relied upon by one of the experts called by the defendant in the proceedings, Dr Green (to which I will return later in this judgment), with respect to his opinion as to possible causes of the fire).
[3]
Observations and Response of Residents and Fire Authorities
Two eye-witnesses observed the first signs of smoke and flames from the western area: Messrs Clayton Jon Reeves and Pumpa. (By the hearing Mr Clayton Jon Reeves was deceased and a s 67 notice pursuant to the Evidence Act 1995 Act (NSW) was provided to that effect. His written statement was admitted without objection).
At approximately 1.35pm, Mr Pumpa was driving down the lane running on his property, to the immediate north of the Tip, when he noticed "a small amount of smoke" coming from the western end of the Tip. He "saw no flames". Incidentally in an earlier statement, Mr Pumpa had described seeing "black smoke bellowing from the rubbish tip" from his driveway around that same time. However, that difference in description has no particular significance.
Mr Pumpa was cross-examined and re-examined as to the location of the smoke that he observed. During the course of giving evidence he refined his initial observation, with respect to location, to the south-western corner within the Tip. This was reflected in his marking of Ex 1, with which he drew a blue circle to the south-west of the concrete dumping zone (signified by a red sticker marked "concrete" in Annexure B). At the view undertaken by the Court to Mr Pumpa's residential property on Townsview, it was confirmed that it was possible to see the Tip from his property.
The first triple-0 call reporting the fire was at 1.38pm recorded in the Incident Log. The call was made from the resident of 64 Commercial Street, Walla Walla.
Between 1.30pm and 2pm, Mr Clayton Jon Reeves, was leaving the factory. Mr Reeves observed "smoke and flames" coming from the "high side of the rubbish tip" in western end of the Tip. He described the smoke and flames as "engulfing the entire tip" but mainly concentrated "at the tip end (western end)". In his statement to the police he stated that "[w]ithin seconds" of his observations he saw Mr Pumpa arrive. He attended upon Mr Pumpa's paddocks to help shift sheep away from the fire.
Residents in Walla Walla also observed indicators of fire coming from within Tip. Mr Jeffrey Grosse, an employee at Elders Real Estate Agency on Commercial Street, which was around 3 kilometres north of the Tip, saw smoke coming from the Tip at approximately 1.35pm. He phoned the Fire Control Centre in Albury ("the FCC") to alert them and report the fire at 1.38pm. At 1.40pm, Mr Grosse received a circular message on his phone from the FCC, which alerted all Rural Fire Service members (in New South Wales) of the fire at the Tip. He immediately drove to the Fire Shed (also referred to as "the Fire Station"), which was also on Commercial Street.
[4]
The Fire Path
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.
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.
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). The fire took approximately 1 hour to reach the township of Gerogery after escaping the Tip.
An Emergency Declaration, pursuant to s 44 of the Rural Fires Act 1997 (NSW), was declared by the Fire Commissioner at 3.00pm on 17 December 2009. Forty fire brigades and four aircrafts assisted to put out the fire. The Emergency Declaration was revoked four days later at 12pm on 21 December 2009.
The total area burnt was approximately 5,200 hectares. Some of this was public land, much of it was the land owned by local residents and farmers. The plaintiff, Ms Sharon Patricia Weber, was a tenant at 14 Rose Street, Gerogery ("the property"). She lived at the property with her two teenage daughters but was visiting family in Queensland at the time of the fire. The property was directly in the fire's path. The property was destroyed.
[5]
The Representative Proceedings
Out of that incident rose the representative proceedings before this Court. The plaintiff commenced this proceeding pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW) against the defendant on her behalf and on behalf of the group members. There are currently 57 group members registered with Maddens Lawyers, the solicitors for the plaintiff, registered as affected persons.
The group members to whom this proceedings relates, as pleaded by the plaintiff, are:
1. All persons who suffered loss or damage to property as a result of the fire;
2. All those persons who suffered personal injury (whether physical injury, or psychiatric injury) as a result of:
1. the Fire; and/or
2. the injury to another person as a result of the fire.
1. The legal personal representatives of the estates of any persons listed in (1) or (2) as at the commencement of this proceeding but have since died.
[6]
THE PLEADINGS
By a further amended statement of claim, filed 4 April 2017, the plaintiff sought damages for negligence and, in the alternative, nuisance. A summary of this pleading follows.
[7]
Introduction
The particular elements of the pleadings will be extracted below. However, it is appropriate to note that the pleadings, with respect to negligence, create a distinction between two distinct elements of factual causation: loss occasioned by the fire igniting and loss occasioned by the fire spreading outside the Tip. For example, in the case of duty, the plaintiff submitted that the duty of the defendant to her and the group members was a duty to take reasonable care to prevent "a fire igniting at" [the Tip] and "any such fire spreading beyond the" Tip. In terms of the question of reasonable foreseeability the plaintiff pleaded that it was reasonably foreseeable that "waste at the tip could ignite and sustain a fire" and, "if such a fire commenced, the risk of bushfire of the spread". It was pleaded the group members were dependent, for the protection of their person, property and interest, upon the defendant ensuring that "no fire would start" in the Tip, or alternatively "any such fire would not escape beyond" the Tip.
Similar pleadings were made with respect to standard of care in the context of pleadings as to precautions. In relation to breach a similar distinction, was again maintained in terms of the steps required that the defendant failed to take which were described as "Tip Management Failures".
It is with these distinctions in mind and the conclusion the Court will reach with respect to factual causation that this judgment is divided into questions concerning the ignition of the fire, and, in particular, the origins and cause of the fire, and escape of the fire (which will consider the question of duty of care, as raised above, the corresponding issues relating to breach of duty and ultimately the question of causation). The two principal headings under the topic of negligence are intended, in a short hand way, to reflect that distinction.
[8]
Duty of Care
The plaintiff contends that the defendant had a duty to take reasonable care to prevent a fire igniting at the Tip and any such fire spreading beyond the Tip. In that respect the plaintiff relied on the following pleadings:
9. At all material time, [the defendant]:
a. had the ultimate responsibility for all activities associated with planning, design, construction, operation and maintenance of the Tip; and
b. had the right, and exercised that right, to the exclusion of other private persons, to:
i. operate and maintain the Tip; or
ii. give directions as to the operation and maintenance of the Tip.
c. exercised the right referred to in subparagraph 'b' above; and
d. in the premises, had practical control over [the Tip].
10. At all material times, it was reasonably foreseeable to [the defendant] that:
a. waste at [the Tip] could ignite and sustain a fire;
b. if such a fire commenced, the risk of bushfire of the spread and severity of the fire was not insignificant;
c. if a bushfire occurred, there was a not insignificant risk that the Plaintiff and Group Members would suffer:
i. loss or damage to property within the Fire Area and consequential losses including economic losses;
ii. damage to property and consequential losses including economic losses within areas:
1. affected by the physical consequence of fire, such as smoke or debris; or
2. the subject of emergency activity to prevent the spread of fire;
("Affected Areas")
iv. personal injury.
d. the risks referred to in subparagraph 'c' were likely to be higher on days of extreme bushfire risk.
11. At all material times, Group Members:
a. had no or no practical ability to prevent or minimise the risk of a fire starting in [the Tip]; and
b. were vulnerable to the impact or effect of such fire; and consequently
c. were dependent, for the protection of their person, property and interest, upon [the defendant] ensuring that:
i. no fire would start in [the Tip]; and further or alternatively
ii. any such fire would not spread beyond [the Tip].
12. In the premises, [the defendant] owed the Group Members a duty to take reasonable care to prevent:
a. a fire igniting at [the Tip]; and
b. any such fire spreading beyond [the Tip];
(the Duty)
In response to the above pleadings, the defendant pleaded the following in its further amended defence to the amended statement of claim (filed 12 April 2017):
1. The defendant admits it had responsibilities in relation to activities carried out at the Tip on or before 17 December 2009. However, the defendant disputed the accuracy of the plaintiff's summary of the defendant's "ultimate responsibility" at para 9(a) of the further amended statement of claim.
2. The defendant stated:
1. persons other than the defendant or its employees carried out regular maintenance activities at the Tip before 17 December;
2. the Tip was secured by a fence to which access was provided by way of a key; and
3. a copy of the key to the Tip had been issued to persons other than the defendant or its employees before 17 December 2009.
1. The defendant denied persons other than the defendant were excluded from carrying out maintenance at the Tip before 17 December 2009.
2. The defendant pleaded it did not know and could not admit:
1. the type of waste present at the Tip on the date of the fire "which was capable of igniting and sustaining a fire as alleged in paragraph 10(a)"; or
2. the risks identified by the plaintiff, in paras 10(b), (c) and (d) of the amended statement of claim (extracted above), were risks which the defendant knew or ought to have known on or before 17 December 2009.
1. The defendant denied the risk of a fire spreading from the Tip to surrounding properties and beyond was a risk which was reasonably foreseeable to it on or before 17 December 2009.
[9]
Standard of Care
The plaintiff, with respect to the standard of care, divided its pleadings into three distinct issues (which will be further discussed in the context of "Escape of Fire from the Tip"):
1. Reasonable foreseeability;
2. Probability and seriousness of "the risk of harm" occurring (see below);
3. Precautions.
The relevant pleadings are extracted in full:
Foreseeable risks of harm
13. At all material times, it was reasonably foreseeable that:
a. a fire could ignite from waste kept and deposited at [the Tip]:
b. a fire ignited within [the Tip] could spread within the tip, including by reason of:
i. no or no adequate fire breaks between different kinds of waste;
ii. the presence of trees, dry leaves or high grass within the tip;
iii. the presence of exposed combustible waste;
iv. the failure to suppress any fire after it commenced;
c. a fire ignited within [the Tip] could spread to surrounding areas causing bushfire, including by reason of:
i. matters set out in the preceding subparagraph; and
ii. no or no adequate fire break around the tip;
d. the matters referred to in subparagraph 'c' presented risks to human life and property (the Risk of Harm).
Probability and seriousness of the Risk of Harm occurring
14. At all material times:
a. [the Tip] was bordered to the south-east by the Walla Walla Golf Course;
b. the Walla Walla Golf Course was note maintained and had tall grass.
15. At all material times, the foreseeable local conditions for [the Tip] and its surrounds included:
a. dry environmental conditions;
b. low atmospheric humidity;
c. high ambient temperatures; and
d. strong winds.
16. By reason of the matters set out at paragraphs 13 to 15:
a. the probability of the Risk of Harm occurring if care were not taken was not insignificant; and
b. the likely seriousness of the harm occurring in the event that the Risk of Harm eventuated was potentially catastrophic.
Precautions
17. As a result of the matters pleaded in paragraphs 13 to 16, a reasonable person in the position of [the defendant] would have taken the following precautions against the Risk of Harm:
a. prepare and implement a fire management plan to minimise the incidence and impact of fire at [the Tip];
Precautions to reduce or control the spread of fire
b. create and maintain effective fire breaks around the perimeter of the facility and each kind of waste stored or deposited threat;
c. consolidate deposited waste into the appropriate areas;
d. remove fuel such as trees, dry leaves and high grass from the facility, including from and adjacent to each particular waste area, on a sufficiently regular basis so as to prevent dangerous build-up;
e. install and maintain fire-fighting equipment adequate to fight fires at any part of the facility;
f. undertake inspection and monitoring of the facility during periods of extreme bushfire risk, including by way of remote monitors or close circuit televisions;
Fire prevention precautions
g. ensure different kinds of waste were not and did not remain mixed together including by taking the following steps:
i. inspecting the waste as it was brought onto the site by the customer; and
ii. directing the customer to deposit the waste in the appropriate area or areas;
iii. supervising or otherwise verifying that the customer deposited the waste in the appropriate area or areas; and
iv. at the end of each operating day, inspecting the waste areas and undertaking any necessary rectification.
h. cover waste with cover material on a sufficiently regular basis so as to minimise the risk of fire, particularly in high risk bushfire periods;
Particulars
Waster should have been covered with daily, intermediate and final non-combustible cover material such as soil.
i. manage green waste piles so as to minimise risk of self-combustion, including, inter alia:
i. regularly aerating green waste piles;
ii. minimising their height; and
iii. disbursing them to non-combustible levels;
j. manage combustible material so as to minimise the risk of combustion including inter alia.
i. restrict, further and alternatively prohibit, receipt of combustible materials during bushfire season;
ii. ensure that all combustible materials are either disposed and buried or stored in appropriate areas or receptacles; and
iii. divide combustible waste of any particular kind into small separate piles so as to keep a pile of material that might ignite separate from other combustible material.
[10]
Breach of duty
The plaintiff contended the defendant breached its duty of care by failing to take reasonable care by one or more of the following (referred to in the plaintiff's pleading at para 18 as "Tip Management Failures"):
a. having no adequate fire management plan to minimise the incidence and impact of fire;
Particulars
Insofar as the plaintiff is able to say prior to discovery, the absence can be inferred from the failure identified below.
b. taking no adequate steps to reduce or control the spread of fire by reason of:
i. failing to create an effective fire break around the perimeter of [the Tip];
ii. failing to construct effective fire breaks around different types of waste;
iii. failing to, or to adequately, consolidate deposited waste into designated areas;
Particulars
In July 2009, the Council reduced the frequency of contracted maintenance works, including works to consolidate deposited waste, from weekly to fortnightly.
iv. failing to remove trees, dry grass and high grass present in the Tip in the period leading up to and including the date of the fire;
v. failing to install fire-fighting equipment;
vi. failing to, or to adequately, [monitor the Tip] during period of extreme bushfire danger; and
c. taking no adequate steps to prevent the spread of fire, including by reason of:
i. failing to, or to adequately, manage different kinds of waste so that they were not and did not remain mixed together;
Particulars
Insofar as the Plaintff is able to say prior to discovery, [the defendant] failed to or failed to adequately:
(a) supervise or otherwise verify that customers deposited waste in appropriate areas; and
(b) at the end of each operating date, inspect the waste areas and undertake any necessary rectification.
ii. failing to, or to adequately, cover waster with cover material on a sufficiently regular basis so as to minimise the risk of fire;
Particulars
Insofar as the plaintiff is able to say prior to discovery, [the defendant]:
(a) did not cover green waste; and
(b) covered general waste in part and fortnightly only.
In July 2009, [the defendant] reduced the frequency of contracted maintenance works, including 'pushing' waste and covering in part some waste, from weekly to fortnightly.
iii. failing to, or to adequately, manage green waste piles so as to minimise the risk of self-combustion;
Particulars
Insofar as the plaintiff is able to say, green waste was burnt in November 2009.
The Plaintiff refers to and repeats the particulars to subparagraph 'ii' above.
iv. failing to, or to adequately, manage combustible waste so as to minimise the risk of combustion.
Particulars
Insofar as the Plaintiff is presently able to say, [the defendant] did not or did not adequately:
(a) restrict or prohibit receipt of combustible materials during bushfire season; and
(b) ensure that all combustible materials are either disposed and buried or stored in appropriate areas of receptacles; and
(c) divide combustible waste of any particular kind into small separate piles so as to keep a pile of material that might ignite separate from other combustible material.
Insofar as the Plaintiff is able to say, a pile of tyres was present at [the Tip] burnt in the fire.
Further, the Plaintiff refers to and repeats the particulars to paragraph 'b' 'iii' above.
(the Tip Management Failures).
[11]
Causation
The plaintiff contends that the fire was caused by a Tip Management Breach.
[12]
Loss and damage
As a result of one or more of the aforementioned Tip Management Failures the plaintiff submitted that substantial loss and damage was suffered.
[13]
Nuisance
Further and alternatively, the plaintiff contended the fire substantially and unreasonably interfered with the use or enjoyment of the interests in the land held by the plaintiff. As a result of nuisance caused by the defendant the plaintiff suffered loss and damage.
The plaintiff's pleading, in this respect, is extracted below:
Creation of nuisance
22. The Fire was caused by [the defendant's] Tip Management Failures.
Foreseeability of loss and damage
23. At all material times:
a. the matters in paragraph 10 and 13; and
b. the risk that a fire ignited in [the Tip] would unreasonably interfere with the use and enjoyment of the interest in the land:
i. over which the fire passes; further or alternatively
ii. that was affected by the physical consequences of the fire or by emergency response to the fire;
iii. by the Plaintiff and Group Members;
were reasonably foreseeable
Interference with interests in land
24. The Fire substantially and unreasonably interfered with the use or enjoyment of the interest in land held by the Plaintiff and Group members.
[Particulars omitted.]
25. In the circumstances set out in paragraphs 1-24, the Plaintiff and the Group Members suffered nuisance created by [the defendant] (the Nuisance).
Loss and damage
26. As a result of the Nuisance, the Plaintiff and Group Members have suffered loss and damage.
In respect of the claim of nuisance, the defendant either denied or otherwise did not admit paras 22-26 of the plaintiff's pleading.
[14]
Common Questions
The pleading also set out questions of law or fact common to the claims of the plaintiff. They were as follows:
1. Whether the General Duty was owed by the Council to the Plaintiff and the Group Members, and it so, the content of the General Duty;
2. Whether the Tip Management Failures were breaches of the General Duty;
3. Whether the Tip Management Breaches caused the Fire;
4. Whether the Plaintiff and Group Members suffered nuisance created by the Council; and
5. What are the principles for identifying and measuring compensable losses suffered by the claimants resulting from the breaches of duty or negligence alleged herein.
The defendant did not accept the above questions as "necessarily common" to the claims made by the plaintiff and all group members, owing to "the nature and content of each duty, and the circumstances in which any duty is breached, will depend on the circumstances in which they arise". Accordingly, in response, the defendant annexed a document titled "Common Questions of Law or Fact" to its pleadings. However, owing to the events that followed it is unnecessary to turn to that document in any further detail.
On 31 March 2017, the parties jointly filed a list of common questions of law or fact, which are annexed to the judgment as Annexure C.
[15]
Relief
The plaintiff sought relief in the form of damages, costs, interest and such further or other orders as the Court thinks fit.
This judgment concerns the question of liability. The economic loss of the plaintiff was particularised in Annexure A to the plaintiff's further amended statement of claim. That quantum was admitted by the defendant.
For completeness, I note that counsel for the plaintiff raised a further claim "for inconvenience", with respect to the plaintiff's requirement to relocate and the issues associated with the same. Counsel for the defendant noted that the damages agreed were not understood to include an amount with reference to that claim (which counsel for the defendant contended had not been particularised). Both parties noted the issue, in that respect, was apprehended to be of "relatively small moment" but the contention was noted on the record.
[16]
NEGLIGENCE: IGNITION OF THE FIRE AT THE TIP
Upon accepting the fire started within the vicinity of the Tip, the parties refined the issue in the common questions as follows: "how did the fire in the vicinity of the Walla Walla Tip on 17 December 2009 start?". The answer to that question will, in this matter, resolve the issue of causation with respect to any breach of duty to take reasonable care to prevent a fire igniting at the Tip. Questions of causation as to a breach of a duty to prevent fire escaping beyond the Tip will be considered under a separate heading. Before venturing to discuss the origin and cause of the fire, I will discuss the relevant legislation and authorities bearing on the question of causation, both as to the ignition of the fire and escape of the fire.
[17]
Relevant Legislation on Causation
The question of causation is governed by s 5D of the Civil Liability Act 2002 (NSW). The relevant sections of that Act are set out in Div 3 and extracted below:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The application of the Civil Liability Act requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the Civil Liability Act.
[18]
Relevant Authority on Causation
The traditional approach to the question of causation requires a determination of a question of fact, namely what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the "but for" test or "causa sine qua non".
The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 ("March v Stramare") (at 430) and summarised as follows:
1. The application of the "but for" test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and
2. The applicability of value judgments and considerations of policy.
In March v Stramare, the High Court ruled that the "but for" test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense.
This development addressed the oft-cited difficulty in application of the "but for" test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a "supervening cause" or "novus actus interveniens", are well established: March v Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 ("Chapman v Hearse") at 124-125. This difficulty was summarised by Mason CJ (March v Stramare at 431-432) and extracted below:
… the "but for" test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the "but for" test.
The facts of, and the decision in, M'Kew illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action.
The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.
…
As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.
[19]
Evidence: Point Of Origin and Cause of the Fire
The evidence bearing upon these issues comprises three components, summarised as follows:
1. Physical evidence at or about the time of the fire, principally in the form of photographs, before the fire in or around October 2009 (set out below at [142]) and after the fire by, inter alia, Mr Stephen Walker (a Fire Investigator with the Rural Fire Service who wrote a report on the fire) on 19 December 2009.
2. The evidence of various persons, including eye-witness accounts by local residents (including those discussed above), that made observations about the Tip and surrounding environment and other conditions both before and/or after the fire. In addition to the evidence of eye-witnesses, the Court also received evidence from Mr Walker, the Fire Investigation Report and NSW Rural Fire Service Statement.
3. Expert evidence which traversed both the questions of the origin and the cause of the fire and issues relating to the spread of the fire although there was some overlap in the discussion of each topic.
[20]
Expert Evidence
It is convenient at this juncture to set out the expert evidence. The experts and their respective reports were as follows:
1. Mr Fabian Crowe, "Fire Report", dated September 2016. Mr Crowe is employed by Bushfire Education, Training & Consultancy Services.
2. Ms Danielle O'Toole, "Expert Witness Report", dated 31 October 2016. Ms O'Toole is a Technical Discipline Manger in the Engineering department at SLR Consulting (her report was limited to an opinion as to the risks of a fire spreading within and outside the Tip and whether they could be reduced or controlled).
3. Mr Murray Nystrom, "Preliminary Report: Fire Investigation", dated 15 December 2011. Mr Nystrom is a Director at Australian Forensic Pty Ltd.
4. Dr Tony Green, "Expert Opinion Report", dated 4 November 2016. Dr Green is a Principal Visiting Fellow at the School of Computer Science and Engineering Software, Faculty of Infomatics, University of Wollongong.
On 16 February 2017, the aforementioned experts conducted a conclave and a joint report of the experts was filed 20 February 2017 ("the Joint Report"). Concurrent evidence was heard before this Court on 18 and 19 April 2017 ("the concurrent evidence"). The Joint Report and the concurrent evidence, together with individual reports of each expert, make up the expert evidence in the proceedings.
By the evidence of the proceedings, as between the parties and as between the experts, there were five causes identified as to how the fire ignited in the Tip. These were reflected in the document entitled "Questions for experts' concurrent evidence" (see Annexure E).
There was also a considerable amount of consensus reached, with respect to the question of the cause of the fire, predominantly arising out of the conclave and the Joint Report (although Dr Green maintained his theories of lightning and deliberate ignition).
[21]
Origin of the Fire
A joint statement of agreed facts was filed 31 March 2017. It was agreed between the parties that "a fire started within the formal boundary of the area of land on which the Walla Walla Rubbish Tip was located". A combination of lay and expert evidence narrowed the fire origin to the western area within the confines of the Tip.
The plaintiff maintained that the location of the commencement of the fire was at the top of the bund rather than west of the bund. Reliance was placed, in this respect, upon a grid reference provided by Mr Walker. Dr Green was hesitant to place reliance on a grid reference in the absence of a map, noting that "grids" are usually "anything from 50 metres to hundred metres, 200 metres, as a square area, and without the map to go with it you can't actually tell the area that he's talking about". Nonetheless, the plaintiff contended that such a conclusion was consistent with the accounts of eyewitnesses, including Mr Pumpa and photographs of the Tip taken on 19 December 2009.
The defendant contended that no such conclusion was available on the evidence. I agree. There is no basis in the evidence for the forming of such a precise conclusion as to the location of the commencement of the fire. The evidence only permits a conclusion, on the balance of probabilities, that the fire commenced in the western side of the dumping area. My reasons for that conclusion are discussed below.
On 18 December 2009, Mr Walker was requested to investigate the course and origin of the fire. He attended upon the Albury Fire Control Centre at 5.15pm, that same day, and obtained details of the incident. He copied and examined available records and reports, including situation reports, local area maps, recorded weather data and line scan imagery.
Mr Walker produced a statement on 17 February 2010, which outlined and recorded his determinations included in his Fire Investigation Report (not dated). The investigation report included photographic evidence, weather observations for Albury and a map of the extent of the fire (see Annexure D). (Mr Walker's evidence was limited to considerations relevant to cause of the fire and origin. It did not address issues of spread of the fire and/or fuel reduction measures).
On 19 December 2009, Mr Walker conducted an examination of the entire fire scene and concluded that the "general area of origin" was inside the western area of the Tip. This conclusion was supported by the substantial damage he observed in the west. Further, aerial analysis of the site revealed that strong north-west winds pushed the fire in a south-east direction. The strength of the wind resulted in the head of the fire expanding in width as it moved forward (see Annexure D).
[22]
Expert Evidence
There were six causes identified as the possible source of ignition of the fire, namely, dry lightning, spontaneous combustion, residual burn deliberate ignition, batteries and glass. However, following the conclave, the consensus reached by all experts was that "the actual cause or probable cause of ignition cannot be identified". The concurrent evidence that was called did nothing to disturb that conclusion. I accept this conclusion and will now demonstrate that, with respect to the causes therein identified, with some being easier to dispense with than others.
[23]
Dry Lightning
Dr Green was the only expert to identify ignition by lightning as a possible cause in the Joint Report. Dr Green opined that "[t]he prevailing conditions could cause very rapid fire development and the reported solar conditions over the course of the day are consistent with dry lightning".
"Dry lightning", which was specifically theorised by Dr Green, is when rain may accompany lightning activity but does not hit the ground. Accordingly, from the outset, the absence of rain at the time of the fire did not immediately defeat this possible cause.
There were several bases developed for this thesis by Dr Green, many of which were disputed, in certain respects, by Messrs Nystrom and Crowe. However, a point of consensus about whether or not any form of lightning, including dry lightning, was present at or about the ignition of the fire was that, if lightning was present, it would need to be accompanied by a thundercloud (typically a high cumulonimbus cloud) and 'thunder' prior to a lightning strike.
The only evidence bearing upon that issue, that is, the evidence of "thunder" - as opposed to cloud - was the evidence of Mr Jon Reeves, to which I will return.
Dr Green's thesis was predicated upon four factors:
1. Notwithstanding the absence in the evidence of any observation of cloud coverage, the solar flux readings were said to demonstrate "significant cloud coverage" during the day.
2. Whilst not entirely clear, the trajectory of the fire, combined with its impact upon the northern corner of the Tip, suggests the fire was not caused by spontaneous combustion.
3. Dry lightning occurs in extreme weather. That type of weather, in the opinion of Dr Green, was confirmed at the time of the fire by data retrieved from the Bureau of Meteorology for 17 December 2009. This combined with the solar flux readings strongly suggested the natural conditions present on that day were conducive to dry lightning occurring.
4. The statement of Mr Jon Reeves confirmed that an "explosion" was heard and "[s]uch an explosion is consistent with a lightning bolt".
I shall consider each factor in turn.
Neither Messrs Nystrom or Crowe were of the opinion that the evidence available was demonstrative of any form of lightning strike, save that Mr Nystrom acknowledged that the solar flux readings were a relevant consideration to the theory. (He did not expand upon that observation).
[24]
Spontaneous Combustion
The common place understanding of spontaneous combustion is captured in the following definition: "the ignition of a substance or body from the rapid oxidation of its own constituents, without heat from any external source" (Macquarie Dictionary (2nd ed, 1992, The Macquarie Library)).
The expert opinion expands upon that definition, describing spontaneous combustion as the product of two natural forces that operate in sequence:
1. The initiation or "feeding" phase involving bacteria. This stage enables the internal moisture to develop, creating an environment for bacteria to break down material, which in turn generates the requisite heat of 70 degrees Celsius.
2. The oxidation phase (also described as the "exothermic stage"). Oxygen must diffuse into the heated area without the heat escaping in order to generate a reaction referred to as "thermal runaway". In other words, the heat generated must be greater than the dissipation in order for spontaneous combustion to occur.
In terms of spontaneous combustion in a tip, the experts agreed that three factors are likely to contribute to the prospect of spontaneous combustion, namely, pile size, moisture content and pile compaction.
The degree to which those factors contribute to spontaneous combustion was a matter of much controversy; particularly when viewed through the prism of the actual circumstances operating at the Tip at the time of the fire.
Taken at a level of generality, the experts opined that spontaneous combustion may be expected to arise within the following circumstances:
1. Mr Crowe's prescription for outbreak by spontaneous combustion was "fresh cut vegetation, usually of small size, in a heap or pile that's usually substantial, greater than 3 metres or 2 and a half metres in height". However, it is not limited to green waste (for example, it may occur amongst oily rags or laundered towels).
2. Mr Nystrom identified a typical minimum pile size as 3 metres. Further, the moisture content needed to be between 20 and 45% by weight.
3. Dr Green noted that a prerequisite to the process is for oxygen to continuously diffuse through a pile. Next, the moisture content is important for the enzymes or bacteria to break down the material and that only will heat it up to about 70 degrees Celsius. Finally, the type of material (or refuse) being compacted is relevant as you must have a material that then can go on, with sufficient oxygen, to actually raise the heat further.
[25]
Residual Burn
Both Messrs Crowe and Nystrom identified residual burn as a possible cause of the fire in the Joint Report. Residual burn is the result of "already smouldering material" that may, for example, be contained within a hollow log or pile (or otherwise compacted). However, during the course of concurrent evidence, residual burn was merely theorised as a possibility; it was only discussed using hypothetical examples. No evidence in specific relation to the Tip was proffered to support the theory as a possible or probable cause.
Mr Nystrom acknowledged a difficulty in differentiating between what was residual burn and what was a result of the fire itself, especially in the absence of material nearby which was already burnt. Dr Green acknowledged an absence of evidence to establish that cause. Both Messrs Nystrom and Crowe agreed it was "difficult to pinpoint" on the evidence.
The material before the Court cannot sustain the theory of residual burn as a cause of the fire.
[26]
Deliberate Ignition
Each expert cited deliberate ignition as a "possible" cause in the Joint Report, only Dr Green contended it was a "real" possibility. However, following early rulings as to the admissibility of evidence, Dr Green's theory could not be ultimately sustained because the evidentiary foundation was removed by evidentiary ruling excluding reference to the observations Mr Mark Springall (a witness that had previously provided a statement but was not ultimately called or relied upon by either party).
Following that ruling, the only evidence to support the theory was an observation by Mr Grosse that he met a man at the road gate upon arrival at the fire. However, this observation was undermined by Mr Grosse's lack of clarity as to who was, in fact, present. It was also recognised by Dr Green that evidence of deliberate ignition may have been destroyed following the grading efforts of Mr Pumpa, along the western boundary and the back burning activities of the Rural Fire Service.
The evidence before the Court cannot sustain deliberate ignition as a cause.
[27]
Glass and Batteries
The highest that any acceptance of either theory came to in the Joint Report was by Messrs Crowe and Nystrom, who identified them as "possible causes".
By the time of concurrent evidence, there had been a convergence of views, by all three experts and the parties, that ignition of refuse by glass (i.e. "lens effect") or arcing on batteries were unlikely causes of the fire. In particular, both Dr Green and Mr Nystrom opined that ignition by broken glass was not only difficult to prove but also difficult to achieve even by deliberate means. Turning to the possibility of ignition by batteries, My Nystrom then observed "there is no evidence that would actively prove that this was the cause of the fire". (However, he noted that such evidence, "may have easily been overlooked by investigators at the tip").
Due to this consensus amongst the experts, that the above possible causes were unlikely within the environment of the Tip, cross-examination was not pursued.
Ignition of the fire by glass or batteries was not established on the evidence.
[28]
Conclusion: Origin of the Fire
The evidence establishes that the fire commenced in the western area of the Tip. No conclusion as to the precise location of the ignition of the fire is 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.
[29]
Conclusion: Factual causation - Ignition of the Fire
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).
I find that the plaintiff has failed to prove, on the balance of probabilities, causation namely, that any negligence of the defendant caused the harm suffered by the plaintiff. In the language of s 5D(1)(a), the plaintiff has not proved to the requisite standard any negligence was a necessary conclusion of the occurrence of any harm suffered by the plaintiff.
Hence, the plaintiff's case on this aspect of the claim, vis-à-vis pleadings concerning the ignition of the fire, must fail.
That does not resolve whether there was a duty on the defendant to prevent the escape of fire of unknown cause, if so, whether it was breached and whether there is proven a causal relationship between any such breach and harm to the plaintiff. Those issues will be considered below.
[30]
The Plaintiff
In summary, the submissions of the plaintiff with respect to duty of care were as follows:
1. This proceeding is of course governed by the Civil Liability Act. That Act does not define when a duty exists between parties and thus the common law will continue to apply in determining the existence of and scope of any duty.
2. Having regard to the evidence in this case, the plaintiff submitted, an analysis of the salient features identified by Allsop P in Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 ("Stavar") (at [103]) resolves in imposition of a duty of care on the defendant.
3. The plaintiff submitted the following features are salient to the determination of whether the defendant owes a duty of care (as adapted from Stavar):
1. the foreseeability of harm;
2. the extent of the defendant's knowledge (either actual or constructive) that its acts or omissions may cause harm to the claimants;
3. the nature of the harm;
4. whether a duty of care is consistent with the terms, scope and purpose of the relevant statutory regime;
5. the degree and nature of the control which the defendant was able to exercise to avoid the harm;
6. the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity controlled by the defendant;
7. the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
8. the degree of vulnerability of the plaintiff to harm from the defendant's conduct; and
9. any potential indeterminacy of liability (when considering the existence of duty in novel cases).
1. The question before the Court is "whether or not the defendant owe[d] a duty to the plaintiff in respect of the consequences or to protect against the development and consequences of the fire escaping from the Tip".
2. It was submitted that the defendant owed a duty to the plaintiff to "undertake the necessary precautions or the precautions of a reasonable person in their position… to implement various steps" to guard against the occurrence of that fire igniting at and/or spreading beyond the Tip.
3. Turning first to foreseeability of risk, the plaintiff submitted, the defendant had "intimate knowledge" that its acts or omissions in connection with the general operation of its landfills may cause harm to members of the public. Hence, its knowledge and conduct with respect to other tips under its control are relevant to the question of duty.
4. Further, it follows that it is "clearly foreseeable" that there is a risk associated with inappropriate management of the landfills both generally and specific to the Tip. In written submission, the plaintiff noted: "There was no issue in this case about the foreseeability of a fire risk associated with inappropriate management of landfills. There is no issue that the claimed losses were the types of losses foreseeably arising from a crystallisation of that fire risk in rural NSW".
5. In support of the contention that the defendant should have foreseen the consequences of a fire escaping, the plaintiff turned to the defendant's knowledge of the risk of fire in three distinct respects: generally within rural areas and tips, specific to the circumstances at the Tip, and knowledge of previous fires. The following submissions were advanced:
1. Knowledge of risk may be determined subjectively and objectively. Emphasis was placed upon the written correspondence before the Court, namely, the letter of Mr Robert Crawford to the Culcairn North West Fire Brigade, in relation to fire safety at waste depots operated by the CSC, and the Greater Hume Shire Waste Management Strategy 2007-2010 and the Culcairn Waste Management Strategy 2004, hereafter referred to as the "Waste Management Strategy reports". It was submitted that such correspondence indicates the foreseeability of risk associated with fuel existence and build up at the Tip and knowledge on part of the defendant.
2. In the light of the Waste Management Strategy reports, the plaintiff also relied upon the limited measures, accepting adequacy was a point of contention (to be addressed below under the heading of breach), the defendant had in place to address the risk of fire ignition and spread from the Tip, namely, by slashing a narrow firebreak, having separate waste disposal areas and burning some green waste each year weather permitting, again indicating the foreseeability of the risk. It was submitted that this was, again, demonstrative of knowledge of the risk.
3. Further, the defendant had knowledge of the condition of the Tip, namely, its physical characteristics that would increase the risk of ignition and spread of fire. Accordingly, the condition of the Tip in 2009 leading up to the fire on 17 December 2009 was identified as "a critical aspect of the case".
4. The defendant had specific knowledge of the problems that contributed to the risk of fire ignition and escape if not properly managed within the Tip and, it follows, was aware of the risk that may eventuate: fire ignition at the Tip and/or escape.
5. The defendant had exclusive control over the management of the Tip and failed to take steps to implement adequate measures in order to reduce the risk. To that end, the plaintiff also contended that the defendant had no relevant budgetary constraints in terms of their implementation.
6. In summary, the defendant as at December 2009 had knowledge of the following:
1. the risk of fire at landfills generally and specifically at the tip;
2. actual fires at its own tips;
3. the very primitive nature of fire risk management in place, comprising separation of waste deposit areas and a completely ineffective firebreak in the event a fire started in at the Tip on a day of high bushfire risk;
4. the absence of any slashing, spraying or controlled burn of vegetation to reduce available fuel inside the tip in the years before the fire; and complaints as to the state of the Tip set out in its own Waste Management Strategy reports and that produced by the Rural Fire Service in 2009.
1. In light of the knowledge of the previous fires, the plaintiff submitted that the nature of the harm that may eventuate, if the defendant failed to exercise reasonable care in connection with its operation of the Tip, was apparent. It was submitted that the defendant would have had "the knowledge of the enormous fires of 2003… and then the Black Saturday fires in 2000". Further, the potential harm was serious and, again, demonstrated by previous fires: death, injury and widespread destruction of property. It was submitted in oral submissions, "[i]nsofar as the existence of the duty, the nature of the harm that flows from the escape of fire is demonstrated by what in fact happened on this occasion which was the nature of fire that could be anticipated, the consequences could be anticipated".
2. The severity of the consequence in the event of a failure to take reasonable care, it was submitted, together with the foreseeability of risk and the knowledge of the same, supports the conclusion that a duty was owed. It was also submitted that unmanned landfills present "known risks to fire". It was contended such a factor supports the imposition of a duty of care on those who manage landfills.
3. A further factor relied upon, concerned the nature and degree of the hazard. To that end the plaintiff referred back to the Waste Management Strategy reports. Both reports recognised that there was a risk of fire - which was one of the bases upon which the reports were produced.
4. At all relevant times, as earlier mentioned, the defendant had operated and controlled the Tip and, it follows, the defendant had power and control over the relevant risks associated with landfills - including fire risk. An example included the power to issue notices to landowners to require fire control measures be carried out to its satisfaction, this included the land owned by the Department of Lands adjacent to the Tip (namely, the golf course).
5. Further factors which were submitted as relevant to the imposition of a duty of care included the following:
1. The relationship between the plaintiff and the defendant on the basis of geographic location. It was submitted that it was foreseeable that a major bushfire ignited by the defendant's assets might spread; therefore, the fire path is particularly relevant, in that respect, as it created the physical connection (described as being akin to that of land owner and occupier).
2. The vulnerability of the plaintiff was another indicia towards determining the existence of duty of care. The plaintiff, it was submitted, was in a vulnerable class of people susceptible to harm caused by a bushfire ignited by the defendant's assets escaping: having no power or the ability to exercise any control over the defendant's maintenance or operation of its landfills, including the management of refuse and vegetation inside landfills. In oral submissions, the plaintiff also refuted the defendant's contention that protection was available via insurance.
3. As to the policy consideration of indeterminacy of liability in novel cases, it was submitted that the spread of fire between land owners does not fall into the category of "novel" (Staver at [102]); damage caused by fire escape is an established tort. Further, it was submitted that the issue of indeterminacy does not arise unless a claim is novel. The plaintiff cited the example of Electro Optic Systems v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45 ("Canberra Bushfire case") as "a classic novel claim". Another example was given, namely, a substantial fire that produces its own weather pattern so as to create lightning, "so people who aren't in a contiguous burn of the fire and suffer damage as a consequence of that lightning created by that fire also have an entitlement because that's a part of the weather pattern created by the fire".
4. In the same light, it was submitted that a class does not become indeterminate "merely because of its size". The plaintiff acknowledged the element of indeterminacy in defining the class - as they were not able to be defined prior to the tort - but again stressed the claim itself was not novel. Reliance, in this respect, was placed upon Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 ("Perre v Apand") at [107] (per McHugh J):
[107] Liability is indeterminate only when it cannot be realistically calculated. If both the likely number of claims and the nature of them can be reasonably calculated, it cannot be said that imposing a duty on the defendant will render that person liable "in an indeterminate amount for an indeterminate time to an indeterminate class".
1. The plaintiff declined to define the geographical limit of the class, for example, within 15 kilometres of the Tip. It relied upon, as stated above, the physical connection being created by where the fire went. In this sense, the class is prospective. However, in the context of a widespread or potentially widespread group affected by a tort, it was submitted that "in this particular case that policy consideration [with respect to indeterminacy], to the extent that it should be made, is a policy consideration that says the duty in that the nature of the breach that may occur can be so widespread and catastrophic is established because of it".
[31]
The Defendant
In summary, the defendant's submissions, with respect to this subject, were as follows:
1. The defendant contended that the initial task is to identify the relevant risk: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 ("Dederer"). This is necessary because the way in which the risk is framed must address the precautions said to be necessary to address it: Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 ("Garzo") at [22] (per Meagher JA), cited with approval in Fairall v Hobbs (2017) 347 ALR 151; [2017] NSWCA 82 ("Fairall") at [74] per Payne JA (McColl AP and Leeming JA agreeing).
2. Two risks were identified as relevant to the Court's determination of the scope of duty:
1. that a fire would start at the Tip and spread beyond it causing loss and damage 11 kilometres away (ignition); and
2. that a fire having started in the Tip it would not be extinguished before moving to the golf course and then causing loss and damage up to 11 kilometres away (propagation).
1. Each risk requires separate consideration of the duty question.
2. The following concessions were made:
1. there is always a risk of fire on a landfill tip. To that extent the defendant was not able to control the risk.
2. the Tip fell within the responsibility of the defendant and that the defendant executed control over its operations.
1. However, turning to the first matter, it was submitted, relevant to the control of that risk was the condition of the adjoining golf course and, it was submitted, the defendant had no control over that matter. Similarly with each of the properties between the Tip and the plaintiff: each had to have fuel on it to permit it to burn.
2. As to the second, in response to the submission that the Tip was "totally" under the control of the defendant, the following submissions were advanced: first, the defendant's power over this land derived from the Crown Lands Act, not from ownership as such and, secondly, the risk of fire on this land was not totally under the defendant's control and that is true in a number of ways. In relation to the second aspect several factors were noted:
1. the defendant was obligated to provide a form of waste disposal service to the residents of Walla Walla;
2. whilst supervisory input was exercised over those who dumped their material at the Tip, "that could never be a perfect solution; and
3. you could not eliminate the risk of fire (a point conceded by the plaintiff and recognised by lay witnesses and, in particular, the experts).
1. The defendant submitted that the leading statement guiding the assessment of the existence of a duty of care in novel circumstances is Stavar. Allsop P there listed a non-exhaustive array of considerations relevant to determining the existence or not of a duty of care. His discussion of duty began at [61] and "the array" appears at [103].
2. Mr Sheldon was critical of the plaintiff's "shopping list" reliance upon the factors listed in Stavar and, in oral submissions, submitted that subsequent case law cautioned against such an approach.
3. There is no evidence of the plaintiff having relied on the defendant, "general reliance" being insufficient to found a duty of care: Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3.
4. The defendant also referred to the Canberra Bushfire case. Whilst the facts are not directly applicable to the present case, the defendant identified the following issue as relevant: "So where the duty is said to be owed to people not on adjoining land, we say that is the novelty and one then must look, as a matter of practicality, to what is the principle that determines how far the liability spreads".
5. The defendant did not assume responsibility: it was required to provide services to the residents of the municipality and to "take over" the running of the tip from its predecessor. It did not have a choice as on formation it took possession of the tip.
6. As to the argument of vulnerability, it was contended that the plaintiff could protect herself from the harm by affecting insurance. Further, it was contended that the plaintiff was "no more vulnerable than the general public who might come into the sector through which a fire moves, depending on weather".
7. There was no relevant relationship between the plaintiff and defendant.
1. The relationship was no different to an indeterminate number of relationships the defendant had with ratepayers, residents and those merely temporarily connected to the tip by the coincidence of the occurrence of the fire and their location at the time of the fire.. A duty cannot spring up when the risk comes home. That is, the beneficiary of a duty of care cannot be identified by reference to the fact of him or her suffering harm: a duty must be capable of articulation before the risk arises.
2. There was no physical proximity between the defendant and the plaintiff.
3. The case before the Court is "novel". This submission was supported by an analysis of the circumstances of the plaintiff (exclusive of the class): the plaintiff's property was 11 kilometres away, not adjoining the Tip and separated by at least one road. Further, there was at least one intervening landowner ("and probably very many more") closer to the defendant's Tip than was the plaintiff.
1. In order to articulate the duty in this case it is necessary to extend it to any person who could suffer harm by (a) the occurrence of a fire on a tip, or (b) the escape of a fire from the tip.
2. Since it cannot be known in advance where or when harm will be suffered no person can be conclusively eliminated from being owed a duty if there is the chance of a fire starting and then spreading sufficiently far in their direction. The direction cannot be known prior to the fire starting. This means that there are an indeterminate number of people potentially affected by the outbreak of fire.
3. In this respect, reference was also made to the plaintiff's hesitancy to confine the geographical limit of the class but prefer the classification of "those who were downwind". It was submitted such a classification is problematic owing to the inconsistency of wind and it is effectively "too wide".
4. Because the plaintiff cannot prove how this fire started (or where) this duty must apply not only to a fire starting by reason of some natural force but to a deliberately lit fire or to a fire caused by the carelessness of some other person who was within the Tip at the time.
5. Further, the chance of fire at any one of the other landfill sites operated by the defendant is the same such that the duties would expand further and would still be indeterminate.
[32]
Legal Principles: Duty of Care
The Civil Liability Act does not define when a duty exists between parties. Accordingly, the common law applies in determining the existence and scope of a duty of care.
The question as to whether there exists a duty of care in negligence is a question of law: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [62] (per Gummow J).
The proper resolution of the (alternative) action on negligence depends upon the existence (and scope) of the relevant duty of care: Dederer at [18].
Regardless of the scope of the duty, a duty of care imposes an obligation to exercise reasonable care. It does not impose a duty to prevent potentially harmful conduct (Dederer at [18]).
Having rejected the plaintiff's case as to causation with respect to ignition, the remainder, to which this part of the judgment concerns, becomes one in which the plaintiff claims the defendant was under a duty to the plaintiff to take reasonable care to avoid the risk of loss occasioned by the fire spreading before the Tip. In this respect, the plaintiff's claim is for loss sustained as a result of damaged property.
Where a posited and contested duty falls outside the established categories of relationship which the law has recognised as giving rise to a duty of care or is a novel one, as Allsop P (as he then was) stated in Stavar, at [102], "the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury".
The defendant submitted that the posited duty in this matter fell outside the established categories of relationship which the law recognises as giving rise to a duty. The duty of care sought to be found was novel. The defendant submitted that was so because there was "no physical proximity". There was a road and properties not owned by the plaintiff lying between the Tip and the plaintiff. Those properties were closer to the Tip than the plaintiff. The plaintiff ultimately contested that position, although nonetheless embarked upon a discussion of the various salient features referred to in Stavar (as did the defendant).
I do not accept the defendant's submission as to novelty, in this respect, so far as it goes to the existence of a duty. It matters not that the plaintiff was not an immediate neighbour. The defendant had relevant control of the land and understood, in that respect, the operation of a Tip was a dangerous activity. There was a risk that the escape of the fire would damage her property and that risk was reasonably foreseeable: Burnie Port Authority v Gerard Jones Pty Ltd (1994) 179 CLR 520 at 530-531 and 556-557.
[33]
The existence and scope of Duty of Care
The plaintiff relied upon nine of the salient features identified in Stavar (at [103(a), (b), (c), (d), (g), (j), (k), (l) and (p)]) albeit adjusted to the circumstances of the present matter. These were listed earlier in the discussion of the plaintiff's submissions. That approach, as I have noted, needs to be undertaken, as a matter of principle, with considerable caution having regard to what features are actually relevant in this matter to the existence or scope of a duty of care. The first, third and fourth questions raised by McHugh J in Graham Barclay Oysters are relevant in the present context together with other factors discussed below.
The reasonable foreseeability of the kind of injury that was suffered by the plaintiff is a necessary but not sufficient condition for the existence of a legal duty of care: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 ("Tame") at [12] and Stavar at [158]. Foreseeability of harm is also relevant to determination of both the scope of the duty and the question of breach. Thus, Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 ("Shirt") at 47 stated that in "deciding whether there has been a breach of a duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff" (see also Dederer at [18]).
For the purposes of determining the existence or otherwise of a duty of care, a risk of harm is not far-fetched or fanciful if it is real and therefore reasonably foreseeable: see Shirt at 48; Tame at [96] (per McHugh J). The content of the duty concerns the steps that might be available to the defendant in its capacity to take steps.
On the evidence in these proceedings, 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.
Additionally, on the evidence, 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.
[34]
Conclusion regarding Duty of Care
In my view, the plaintiff has established that the defendant owed a duty to the plaintiff (and the group members) to take reasonable care to avoid risk of personal injury or property loss caused by the escape of fire from the Tip.
The defendant had a substantial degree of control over the relevant risks and had an intimate knowledge that its act or omissions in connection with the operation of its landfills may create or increase a risk of harm to members of the public. The plaintiff established that there was a risk of fires, of whatever cause, known or unknown, in the Tip and that there was an eminently foreseeable consequential risk of such fires escaping (and causing damage) unless sufficient reasonable practicable measures were taken to prevent such an escape. (There is a finding also available in this matter that the risk of fires escaping was actually foreseen by the defendant).
[35]
The Plaintiff
Turning first to a summary of the plaintiff's submissions with respect to breach of duty:
1. It was submitted that the defendant breached the duty of care owed to the plaintiff, namely, to take reasonable care in respect of the escape of the fire; the risk of harm that eventuated was due to the defendant's failure to take precautions. To that end, it was submitted, that the cause of the fire is not relevant, save for it being a fire that is caused by tip operations. The defendant was running a tip, which entails a duty to guard against the risks which are associated with the operation of the Tip.
2. The risk of harm was identified as follows:
1. At a general level "the risk of fire starting in and escaping from its waste facility at Walla Walla"; and
2. Expressed more narrowly "that waste at an unmanned landfill with overgrown unmanaged vegetation within its tipping area, without an adequate firebreak, refuse management, fire management (including suppression) plan, onsite water or fire suppression equipment, standing in proximity to land with high fuel loads, might ignite and spread beyond the tip to become a bushfire which, in turn, causes personal injury and/or property loss in the geographic area impacted by the fire".
1. It was submitted that consideration of the factors in s 5B(2) favoured a conclusion that a reasonable person in the defendant's position would have taken the precautions pleaded in para 17 of the further amended statement of claim (see extracted above at [65]).
2. In light of the prevailing conditions of the day, namely, strong north-westerly winds, high temperatures, low humidity and the presence of dry fuel, "it becomes more likely that waste in a poorly managed landfill [would] permit a fire to start; and more likely that any fire so started [would] develop into a bushfire. It is those conditions that must inform the reasonable response to the risk of harm". In that respect, reliance was placed upon the speed at which the fire spread from the Tip. It was contended, had appropriate steps been taking, in relation to precautions, the fire would have spread slower.
3. As to the issue of spotting, the plaintiff conceded that "[t]he fuel that existed on the day had the capacity to spot". However, it was contended, had appropriate care been taken, the fuel should not have had the capacity to spot. In this respect, reliance was placed on the evidence of "low intensity" burn, which, in the absence of seed pods and a particular level of grass would not provide an intense burn; spotting capacities would have been further ameliorated with a firebreak outside the perimeter fence.
4. The plaintiff alleged the defendant failed to undertake or to properly undertake any of the following precautions (as extrapolated from the pleadings, which are extracted in full at [65] of this judgment):
1. prepare and implement a fire management plan;
2. create and maintain an effective firebreak;
3. consolidate deposited waste into appropriate areas;
4. remove fuel to prevent dangerous build ups;
5. install and maintain fire fighting equipment;
6. undertake inspection and monitoring of the facility during periods of extreme bush fire risk;
7. ensure different kinds of waste are not mixed together;
8. cover waste with cover material on regular basis;
9. manage green waste piles; and
10. manage combustible material to minimise risk of combustion.
1. It was submitted that the evidence supports a conclusion that the defendant had acknowledged the need for such precautions but it either did not implement such precautions or did not implement them properly.
2. The burden on the defendant to implement any of the above listed precautions, it was contended, was insignificant when the risk and seriousness of the harm, described as "catastrophic", was considered in light of the defendant's resources. This was supported with reference to the evidence of known measures and measures taken provided by Messrs Davies, Peach and Pinnuck (as well as the Crawford and Singe letters).
3. It was also submitted that the social utility of the existence of a tip is not in any way inhibited by the taking out of those precautions.
4. The spread of the fire would have been significantly slowed had the defendant taken such precautions. Further, there was ample fire fighting resources available to contain the fire within the Tip.
5. As to specific failures the following submissions were made:
1. Mr Peach had limited training with respect to waste management whilst employed by the defendant. He received no training in relation to analysis of fire risk, fire courses, ignition and spread in relation to landfills. Notwithstanding this, he was responsible for waste management services in 2008.
2. The schedule for pushing waste at the Tip was reduced from once a week to once a fortnight without conducting risk analysis or consideration of the consequences of the change (save for a discussion by Mr Jacob with his supervisor Mr Davies).
3. The firebreak was inadequate having not been graded in the years preceding the fire.
4. Despite identification of the "mixing of waste streams and inappropriate disposal of waste" in the 2004 Waste Management Strategy report, minimal action. The problem existed at the time of the fire.
5. The defendant did not carry out any fuel reduction at the Tip in the years prior to the fire.
6. The defendant made the followings admissions:
1. No fire-fighting equipment was kept at the Tip; and
2. No inspection or monitoring of the Tip was undertaken during period of extreme bush fire risk.
1. The defendant did not undertake to spray an extensive perimeter around the Tip, spraying vegetation and all noxious weeds within the Tip, maintaining a bare earth firebreak, and conducting a controlled burn off.
1. Each of the experts agreed that the proper management of the Tip required the management of fuel of any nature at the Tip.
2. The Court should find, it was submitted, had the defendant taken the precautions which a reasonable person in the circumstances would have taken, the fire would not have escaped the Tip and would have been stopped in time.
[36]
The Defendant
The defendant relied on the following submissions in relation to the alleged breach of duty:
1. Turning first to the risk of the fire escaping the Tip, it was submitted there was a "low level of probability" and, if it occurred, "it was not likely to cause damage". The defendant's primary contention was that the prescribed responses, namely, the aforementioned precautions, would not have led to a different result. In this respect, reliance was placed upon the experts opinion in the Joint Report as "[n]one of the experts [were] prepared to stake their reputations on whether if any of the precautions taken had been taken the fire would not have spread".
2. As to the alleged failure to take precautions, the following submissions were advanced in reply:
1. The probability that harm would occur if care was not taken was low: fires were rare and when they occurred they caused no harm since they had previously been contained within the tips. Further, the evidence as to the comparative difficulty of fire starting by any one of the postulated methods of ignition made it distinctly improbable that a fire would start so that the overall probability of harm occurring was necessarily reduced by the infrequency of such fires and their comparative difficulty in starting.
2. Additionally, since fire was a possibility anywhere at any time the relative probability of harm being suffered by a fire starting in the Tip was slight: the adjoining golf course had a fuel load at least equal to the Tip and the properties seen by Mr Walker on his way to the Tip after the first had significant fuel loads on them.
3. The likely seriousness of the harm was low since the likelihood was that a fire starting in the Tip - which was in typical condition - would be confined to the Tip.
4. The burden of taking the precaution is to be assessed by reference to the other tips for which the defendant is responsible and other places where similar risks exist. It was contended that no effort has been made by the plaintiff to demonstrate what the cost of the suggested responses was (Harris v Woolworths Ltd [2010] NSWCA 312 at [33]) and since none of the experts were an expert in the field of tip management any prescription they advance cannot be taken to be self-evidently "reasonable in all the circumstances".
5. The evidence does not establish, noting the prevailing conditions, that had the precautions been taken that it would have slowed down the fire or prevented the spread beyond the Tip.
1. Reliance was also placed upon the defence under s 5C of the Civil Liability Act and Cekan v Haines (1990) 21 NSWLR 296 (T562). The defendant submitted:
[Section] 5C of the Civil Liability Act requires the Court to take into account all of the other occasions on which the defendant would be required to act in a similar way and the burden of doing so if that were the case. That is, we say, the principle basis, apart from logical impracticality, why we can't have a man at the - a man or a woman at the tip - so when the experts propound fire fighting equipment permanently available at the tip, we say, "Well, unless there's somebody there, you're going to have the problem that Mr Grosse doesn't turn up for 15 minutes and by that stage, it's too late."
1. As to the plaintiff's submission that the defendant could have invoked one or more of seven responses, the defendant contended that each submission was put forward with the benefit of hindsight. Further submissions, as to specific precautions, included reference to the following:
1. Separating of waste;
2. Creating and maintaining fuel free zones;
3. Covering waste with dirt or inert material;
4. Removal of grasses;
5. Having fire fighting equipment present at the site (not contested);
6. Inspection at times of high fire danger; and
7. Discouraging intruders.
1. As to the plaintiff's submissions with respect to resources available to the defendant, it was submitted the relevant principles (discussed above) require that the Court recognise the defendant had responsibility for 10 tips - each with their own issues. Accordingly, in assessing any submission involving the expenditure of money or the application of other resources it would be necessary to approach the reasonableness of the suggested action on the basis of it being repeated across all of the tips.
2. Any step suggested by the plaintiff as being reasonable cannot be evaluated solely by reference to its implementation at the Tip: its implementation at each other tips must also be considered.
3. As the evidence disclosed there are ratios and requirements under the auditing standards to establish all councils on a sound financial footing. The challenge in cross examination to the effect that depreciation is a non-cash item seemed to be driving at a submission that if you ignored depreciation because it was a non-cash item there would suddenly be a lot more money to spend. That approach entirely ignores two things:
1. an accounting policy decision to depreciate an asset within the accounts of a council cannot be matter which is open to review in an action for negligence in the present context; and
2. the depreciation is intended to reserve funds for the replacement of the asset when it requires replacement: not to make that provision would soon find the council without the reserves necessary to replacing assets as they reached the end of their working life. It is not suggested that the accounting standards under which the council report in some way do other than take this approach.
1. The plaintiff also sought to circumvent the requirement for budget changes to be approved by elected councillors: a matter requiring council approval is not justiciable, whatever the voting patterns or history of the councillors concerned. Further, such a determination must be the epitome of an issue concerning the general allocation of resources.
[37]
Relevant Legislation on Breach
The question of breach is governed by s 5B of the Civil Liability Act. The relevant sections of that Act are set out in Div 2 and extracted below:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
[38]
The Application of ss 5B and 5C
Section 5B of the Civil Liability Act governs the assessment of breach.
As earlier discussed, the first step required by s 5B is to identify the risk of harm with respect to which there was a failure to take precautions. The plaintiff's statement of the risk of harm was that set out earlier in the summary of the plaintiff's submissions. The question of risk was identified by the defendant in relation to the question of duty. It may be repeated here. The defendant identifies two risks: the first arises from the risk of ignition and the second from the risk of propagation. The first may be put aside having regard to the determination of causation in that respect. The second risk is described as "the risk that a fire having started in the tip it would not be extinguished before moving to the golf course and then causing loss and damage up to 11 kilometres away".
As earlier mentioned, in my view, the relevant risk is a risk of fire escaping the Tip, when a fire had ignited in the Tip. The risk may also be identified as the risk that a fire would not be extinguished before moving to the golf course after ignition in the Tip.
Section 5B prescribes that a person is not negligent in failing to take precautions against a risk of harm unless the three conditions in subs (1) are satisfied. I have earlier dealt with the question of foreseeability.
The second condition is that "the risk was not insignificant". This is a more demanding test than the test for reasonable foreseeability, namely, that the risk not be far-fetched and fanciful, but "not by very much": Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA (with whom Beazley JA, as she was then, and Tobias JA agreed) at [44].
In Benic v New South Wales [2010] NSWSC 1039, Garling J summarised the appropriate approach to interpreting the phrase "not insignificant" (at [101]):
(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;
(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;
(c) The phrase "not insignificant" is intended to refer to the probability of the occurrence of the risk;
(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;
(e) Whether a risk is "not insignificant" must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula.
[39]
Statutory Defence: s 42
The defendant raised a defence under s 42 of the Civil Liability Act.
The effect of s 42(a) in the present case is that what the defendant can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the defendant for carrying out the care, control and management of tips that are under its care, control and management: Refrigerated Roadways at [395].
Section 42(b) prohibits a challenge to the general allocation by the defendant to the care, control and management of tips: Refrigerated Roadways at [396]. As Campbell JA pointed out in Refrigerated Roadways, s 42(a) is concerned with the resources reasonably available to the defendant, while s 42(b) is concerned with the allocation of resources by the defendant. Section 42(b) "starts with the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority to those resources" (at [397]).
Thus, although the general allocation of resources by the defendant is not open to challenge, the plaintiff is able to address the specific allocation of resources available to the defendant: Holroyd City Council v Zaiter (2014) 119 LGERA 319; [2014] NSWCA 109 at [97]-[100] (per Hoeben JA, with whom Emmett and Gleeson JJA agreed). (It should be observed, however, that if a particular allocation is not excluded by s 42(b) it would still have to be tested by application of the common law principles plus the Civil Liability Act other than s 42(b)).
I agree with the submission by the defendant that, from these principles, the mandated approach is to recognise that the defendant had responsibility for 10 tips. Each of them had issues. It is necessary to approach the reasonableness of a suggested action or precaution on the basis of it being repeated across all of the tips.
For reasons which will follow, I do not consider that s 42 affects a conclusion about breach arrived at by common law principles or principles by reference to the Civil Liability Act, other than s 42(b) above. In short, I do not consider the defence is made out.
There was a specific resource allocation by the defendant for waste management. The defendant's waste management service was part of its general operations and funding which fell within the "General Fund", specifically the function of "Housing and Community Amenities". All functions within the General Fund ran at a loss, other than Economic Affairs which included income from tourism and caravan parks. However, when rates, annual charges and grants and contributions for operating purposes were taken into account, the General Fund had a net operating result for the year ending 30 June 2009 of $1.324 million.
[40]
Preliminary observations regarding the operation of s 5B
The synthesis of these considerations in the present case, without detracting from the foregoing analysis, is that the occurrence of fires in tips if precautions are not taken are, on the evidence, by no means rare. The possibility of fires escaping if precautions are not taken increases over time and is affected by prevailing conditions such as in the present case, a strong north westerly wind, high temperatures, low humidity and dry fuel. Such is the magnitude of the loss likely if fire escapes in the dry terrain in which the Tip was located at the relevant time must mean that the taking of relevant precautions is reasonable. The precautions proposed are not unduly onerous or unusual.
I accept the submission of the plaintiff that the aforementioned consideration of the factors under s 5B(2) favours a conclusion that a reasonable person in the defendant's position would have taken most of the 10 precautions listed by the plaintiff. That conclusion is buttressed and refined by the conclusions below under the following heading.
[41]
Precautions
It is necessary then to consider the questions of whether, in addition to the above considerations, a reasonable person would have taken the precautions pleaded by the plaintiff and whether any sufficient reasonably practicable steps of the kind were taken by the defendant where reasonably required.
[42]
Further considerations regarding s 5B: Expert opinion as to whether the precautions were reasonable fire precaution measures
The experts were asked to consider what reasonable fire precaution measures could have been employed and what should have been employed at a solid waste landfill comparable to the Tip at questions 6 and 7 of the Joint Report. Those questions and their answers are extracted in full below:
Q6. Do you agree on what reasonable fire precaution measures could have been employed at a solid waste landfill in New South Wales of a size and location comparable to the Tip at the relevant time? If you do not agree what is the basis for your disagreement?
A6.
Ms O'Toole, Mr Crowe and Mr Nystrom agreed that reasonable fire precautions that could have been taken were:
a. Separating and isolating deposits of different types of rubbish that constituted fuel loads within the tip.
b. Creating and maintaining fuel free zones or areas including access roads between such deposits.
c. Covering waste with dirt or inert material.
d. Removal of grass, foliage and trees within the tip.
e. Having fire fighting equipment permanently available at the tip.
f. Instituting a system for inspection of the tip at times of high fire danger.
g. Erecting a perimeter fence of some sort to act as a discouragement to intruders
Dr Green disagree only with d. In his opinion the grass etc. need only be kept at a manageable minimum condition.
The experts acknowledged that whether the tip was adequately managed or managed reasonably at the relevant time is a matter for evidence and judicial decision. Their above opinion as to reasonable precautions is based on their expert knowledge and experience and does not imply any legal opinion.
Q7. Do you agree on what reasonable fire precaution measures should have been employed at a solid waste landfill in New South Wales of a size and location comparable to the Tip at the relevant time? If you do not agree as to which of the measures should have been employed:
a) On which measures do you disagree?
b) Why?
A7.
All four experts do not think it is within their expertise or role to say what should have been done as distinct from what might have been done. They regard what should have been done as a matter for judicial decision and have dealt with the possible measures in answer to question 6 to which they refer.
Thus, at the time of the Joint Report the experts gave the opinion (save for Dr Green) that the following precautions or steps, with respect to the duty of care and breach, represented reasonable fire precautions (save for Dr Green in one instance):
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. Having fire fighting equipment permanently available at the tip.
5. Instituting a system for inspection of the tip at times of high fire danger.
6. Erecting a perimeter fence of some sort to act as a discouragement to intruders
[43]
Did the defendant take the precautions against the risk of harm?
I now turn to the evidence with respect to each of the precautions pleaded and as considered within the parties' respective submissions.
[44]
Prepare and implement a fire management plan
There was no evidence of a formal fire management plan prepared by the defendant. However, as I have found, the defendant knew of the dangers of fire ignition and spread at the Tip. The defendant recognised measures to be taken in respect of the defendant's "plans for fire safety at Council Waster Depots" in the Crawford letter. Further, additional available measures, albeit with respect to the Henty tip, were also identified in the Singe letter. The defendant was aware that fire safety required the implementation of certain measures.
Returning to the Crawford letter, Mr Davies conceded that the defendant failed to carry out any of the measures identified, namely:
1. spraying an extensive perimeter around the Tip;
2. spraying vegetation and all noxious weeds within the Tip;
3. maintaining a bare earth firebreak; and
4. conducting a controlled burn off.
Mr Peach also confirmed none of these measures were carried out by the defendant at the Tip, notwithstanding the letter acknowledged "plans" had been made to undertake such measures at the time of the letter.
Mr Davies confirmed that he relied on Rural Fire Service to tell him what was needed.
Further, the defendant did not have any person in its employment with fire expertise sufficient to prepare and implement such a fire management plan. Messrs Davies and Peach, whom had managerial responsibilities, did not have sufficient expertise to identify and manage the risks of fire within the Tip. The defendant did not provide training to those employees that would provide them with the skills necessary to implement a fire management plan.
Messrs Davies, Peach and Mansfield (hereinafter shall be collectively referred to as "the defendant's employees") carried out their respective roles with the knowledge they had at the time; those employees did not have the skills or the resources to understand and implement the most basic fire prevention and suppression measures.
The plaintiff contended that, other than the change to Mr Jacob's contract, there was no change in the method of fire protection or no improvement in the 3 to 4 years before the 2009 fire. Further, the plaintiff also contended that the change was effected "without analysing the consequences of the change or preparing a written risk analysis". This was consistent with the evidence of Messrs Davies and Peach.
[45]
Create and maintain an effective firebreak
The defendant recognised the need for a firebreak as a means of fire hazard reduction. This is illustrated in both the Crawford and Singe letters and also supported by, inter alia, the defendant hiring a contractor, Jindera Bobcat, to maintain the firebreak. Further, Mr Peach described the firebreak as adequate for the purposes of fire prevention.
The firebreak was outside the netting fence and inside the boundary fence to the south of the Tip. By December 2009 it was cured and dry, and totally inaccessible to vehicles. As to its maintenance and effectiveness the following evidence is relevant:
1. Both Messrs Seidel and Hunter described the firebreak as narrow with trees next to part of the firebreak. Mr Seidel specifically recalled long grass growing around the trees.
2. The defendant's employees could not recall the firebreak being graded in the years prior to the fire. Mr Mansfield gave evidence that none had occurred in the 2 to 3 years prior. Similarly, Mr Peach confirmed a record would have been made if grading occurred and no such document was produced.
3. Mr Peach gave evidence, in lieu of grading, that the firebreak was maintained by Jindera Bobcat. An invoice was tendered to establish that Jindera Bobcat was paid for slashing of the laneway leading to the tip and clearing the firebreak around the tip in October 2009.
4. Mr Jacob recalled the defendant "used to use a grader to go around it and grade around it and that'd make a firebreak, and I think in the last years, it was just slashed". He observed that "slash[ing] doesn't make a firebreak" and a mowed but not graded area does not make a firebreak.
5. Mr Hunter gave evidence that the firebreak was less than 2 grader blades wide prior to the fire, outside the netting fence, and generally along the southern perimeter fence of the tip reserve. It had a width of 2 to 3 metres, a width the expert evidence described as inadequate. He contended there was never any clearing done either side of the firebreak and it was not very well maintained. He had also observed "lots of rubbish fallen, small branches and sometimes even large branches and leaves and grass and stuff scattered across it".
6. Both Messrs Davies and Peach gave evidence of the difficult terrain and fuel present in the southern area of the Tip. Mr Davies said he was unable to identify anything within that southern area that would inhibit the progress of the fire to running fire before it hit the firebreak and perimeter fence. Mr Peach agreed that once a fire started to go outside the south side of the bund, it would run for 40 or 50 metres before it hits the netting fence and that there was no fuel reduction of any sort in that area. Mr Mansfield also gave evidence that if a fire started anywhere along the southern side of the tip it would have nothing stopping it developing and running until it got to the 2 to 3 metre firebreak at the boundary fence.
7. Mr Davies gave evidence, by comparison, of the conditions at the Henty tip: there was a large area cleared between the fence and the tipping area at the Henty tip. The clearance was up to 40 metres and it was more accessible. There were areas where there was total vegetation clearance, and fuel reduction historically included sheep grazing.
8. Photographs taken after the fire show a representation of the terrain underneath the long grass and vegetation before the fire, and illustrate the work required of a bulldozer if employed prior to the fire to flatten the ground on the southern side.
[46]
Consolidate deposited waste into appropriate areas
The evidence before the Court, in this respect, was that the defendant had knowledge the mixing of waste and inappropriate dumping and did not take action. The defendant's employees and Mr Jacob each gave evidence of an awareness of waste being mixed together as a problem at the Tip. This problem was identified in the photographs of October 2009, which show a mixing of wastes, and confirmed in the Waste Management Strategy reports. The defendant's recognition of the need for separation of waste may also be implied by the general layout of the designated waste areas, within the dumping area, which are indicated on Annexure B.
In the 2004 Waste Management Strategy report, a problem at the Tip was identified about site supervision resulting in mixing of waste streams and inappropriate disposal of waste. Those problems existed as at the date of the fire as can be seen from the photographs of 1 October 2009 and from the evidence of Messrs Jacob and Mansfield as to the state of the Tip.
Mr Davies agreed that there had been no real change in relation to those problems between 2004 to 2007 or in the period from 2010 to 2011.
As previously mentioned, identification of each area was determined by appearance and was generally separated by approximately 10 metres.
Mr Jacob recalled the following estimates as to separation of waste:
1. 10 to 15 metres separation between the green waste and the metal material;
2. 10 metres between the green waste and the concrete waste;
3. some separation between metal waste and the tyres; and
4. approximately 60 to 70 metres between the green waste and the household waste, with the concrete area in between, tall, dry grass linked each of the designated areas for waste at the Tip in December 2009.
Part of Mr Jacob's job was to move waste deposited in the wrong place. He said he left it in the best condition he could, putting waste in the appropriate area and maintaining separation. However, he was limited to the hours he was contracted to work. Mr Davies also gave evidence that the push of waste did not make a difference in terms of contamination because his expectation was that "nobody would go and … retrieve anything out of the general waste to … put it in the correct place so it [the push] wouldn't make any difference with, you know contamination".
[47]
Remove fuel to prevent dangerous build ups
The defendant did not carry out any fuel reduction at the Tip in the years prior to the fire, save for the annual burn of green waste (see below, "Manage green waste piles"). Particular emphasis, in this respect, was placed upon evidence of the condition of the southern area within the dumping area immediately prior to the fire, noting the fire escaped via the south eastern corner, as well as the presence and condition of grass throughout the Tip.
Mr Davies confirmed there had been no fuel reduction done to the south and the south east of the bund at the Tip at any time after he was the Director of Environment and Planning other than the firebreak and an annual burn of some or all of the green waste, which was conducted prior to the fire season. This evidence is consistent with the evidence of Mr Peach.
Mr Jacob gave evidence as to the condition of the Tip in the south-east corner: there was vegetation, phalaris and rye grass and "all sorts of stuff up to waist high" which was dry or cured, the vegetation was heavy, with exceptional growth in 2009. Photographic evidence of the grass alongside 44 gallon drums was also relied upon as an indicator of height.
Mr Peach was also shown a number of photographs he took of the Tip and its environment. He agreed that that grasses in the Tip were totally dry by mid-December 2009. He gave evidence that the photographs showed the level of vegetation in the tip at various times. His evidence included that:
1. material to the south and the east of the bund was mainly long grass in October to December 2009;
2. there was nothing to stop a fire going south from the bund towards the south-eastern area of the reserve, within the netting fence before the firebreak; and
3. "it was known that this - and in a couple of other tips were problems and would have to do some work on them" in relation to the fire risk.
Mr Peach also recalled that the grass was very dry on 17 December 2009 (when he went and saw the fire).
As to the presence of fuel, generally, within the Tip the following evidence was provided by Mr Davies:
1. He confirmed there was nothing done by way of fuel reduction of the grass in any area of the Tip other than the burn of green waste, of any of the vegetation depicted in the photographs shown to the witness.
2. There was no difference in the grass in the eastern end of the tip, and the golf course, in addition there was phalaris in the tip which when it is dry burns.
3. He conceded concern with a high level of fuel at the Tip that, if a fire starts and is a running fire by the time it gets to a firebreak, the firebreak is quite ineffective unless it is very wide.
4. He recalled it was very difficult to slash close to the waste in the land fill area of the Tip without conducting landscaping works.
5. He confirmed the area to the south of the bund to the golf course had long grass within it in most spring seasons.
[48]
Install and maintain fire fighting equipment
The defendant admitted there was no fire-fighting equipment at the Tip. However, two submissions were advanced by the defendant in respect to this admission: first, such a measure could only be relevant if there was someone available to use it and secondly, the time which it took the people most likely to respond to get into a position to fight the fire rendered such a measure essentially useless. It may be added that those who did attend upon the fire did so with fire fighting equipment.
No further submission was advanced by the plaintiff in this respect.
I have earlier found the precaution was not reasonable. In any event, I agree with the defendant's submissions in this respect, both in terms of the personnel required and, as I will find under causation, the time taken to respond.
[49]
Undertake inspection and monitoring of the facility during periods of extreme bush fire risk
The defendant admitted that it did not undertake inspection and monitoring of the Tip during periods of extreme bushfire risk. However, in doing so a submission was advanced emphasising the impractical nature of the measure by asking: "By whom and when?". It was contended that the submission by the plaintiff, in this respect, lacks a causal basis as the inspector would have to be present, by coincidence, at the time of the outbreak of fire to make any difference. I agree.
[50]
Other Precautions
The following precautions essentially concern the issue of ignition but given that the evidence may partially overlap with the above discussion of precautions I shall briefly deal with each matter.
[51]
Ensure different kinds of waste are not mixed together
This precaution, as pleaded, goes to ignition but the evidence overlaps with the above discussion at "Consolidate deposited waste into appropriate areas".
[52]
Cover waste with cover material on regular basis
The evidence establishes that there was rarely soil available to cover the household waste. Messrs Davies, Peach and Jacob were aware of the shortage of soil.
Mr Mansfield explained that the use of soil on top of rubbish was to stop the chances of fire coming out of it, in other words, to limit that chance. He explained that the cover and compaction of waste is done to improve fire protection. He recalled there was a lot of rubbish that was not properly pushed up in the months before the fire and without soil cover. Further, there was no soil cover in the second half of 2009 to cover waste in the general refuse area.
Mr Davies recognised there was an ongoing problem due to the uncovered tipping face at the Tip from 2004 until the close of the Tip in 2009. The western end of the bund did not have any cover on it and it was just a build-up of refuse. He also gave evidence of problems obtaining soil for cover at the Tip. He said that in order to cover the parts of the Tip which could benefit from soil cover you would need several thousand cubic metres of soil.
Mr Jacob acknowledged the opportunistic nature of the availability of soil. His evidence also established that the process of covering with soil required new soil regularly. Mr Jacob also said there was no soil available once they had moved the general waste area from the trenches to the east of the netting fence, where soil from the trenches was available to cover the general waste, to the western area of the tip.
Mr Jacob was asked what Mr Peach's response to an apparent offer of soil was and said "that they can't afford to do anything". His later evidence sought to demonstrate that there was actually no cost, other than some transportation, associated with the offer. The sequence, it was contended by the defendant, was unconvincing but substantially irrelevant by virtue of Mr Davies estimate of the amount of soil required as noted above. The plaintiff maintained, although many hundreds of cubic metres of dirt would be required to cover the exposed general waste at the time of the fire, only smaller amounts were required on a weekly basis. This was never supplied.
The defendant also submitted there was a shortage of dirt. Further, it was contended that Mr Jacob's offer was implausible but, in any event, his offer would have only provided soil for a very limited time and, given the lack of knowledge as to how the fire started it cannot be shown that dirt would have prevented it from doing so.
[53]
Manage green waste piles
An annual burn of green waste was identified as fire hazard reduction work undertaken by the Rural Fire Service at the Tip each year. Mr Jacob confirmed that this annual burn took place prior to fire season in 2009.
During the course of evidence it was revealed that "green waste" did not include grass clippings, which were permitted to be dumped within the household waste. Further, photographs established piles of green waste mixed within other waste.
Attention was again drawn to correspondence provided by the Rural Fire Service, namely, the letter received by Mr Peach on 8 October 2009 ("the Rural Fire Service letter"). The letter concerned the difficulty in the area of the green waste at the Tip due to the unevenness of the ground and inability to drive around the pile of green waste. The letter requested that the defendant arrange for the area on the site of the green waste to be levelled, and a good perimeter boundary be established to ensure the pile, once alight is easily monitored. The letter went on to say that, "[a]t present the unlevel ground is also proving to be a trip hazard and the pile cannot be circumnavigated properly at present to prevent a fire escape". Messrs Peach and Davies confirmed no action was taken in relation to this letter. Mr Davies gave evidence that there were inaccessible areas to the south of the green waste area and that the area referred to by the Rural Fire Service was a non-trafficable area. Mr Peach also agreed that the green waste area could not be circumnavigated with vehicles.
During cross-examination, Mr Pinnuck gave evidence that the Rural Fire Service would raise any issues it had with the fire risk posed by particular property. The Rural Fire Service's only complaint concerned their ability to access all sides of the green waste they were periodically requested to burn off. Further, in relation to being able to "drive around" the green waste, Mr Davies' position was that the Rural Fire Service would need to be comfortable with the access they had to the green waste. Mr Davies said, and no issue was taken with it, that after the green waste was burnt there would no longer be green waste, as such.
The defendant suggested that it may be inferred that the Rural Fire Service letter was prompted by difficulties they experienced with the annual burn in 2009 and was not directed to some more general concern with the condition of the Tip. Such an inference would support Mr Peach's view that the letter was indicating a need for some attention to the issue prior to the next burning of green waste. The defendant also contended that the letter should not be understood as an assessment of the state of the entire Tip. Rather, the subject of the letter is limited to "the burning of green waste".
[54]
Manage combustible material to minimise risk of combustion
Mr Mansfield acknowledged that the covering and compaction of waste compaction of waste was done to improve fire protection. Mr Jacob was engaged by the defendant as a contractor to push the rubbish, this included separating and compacting waste (as discussed above, Mr Jacob's ability to cover the waste was restricted due to limited supply and availability).
As previously mentioned, Mr Jacob's work was reduced to a fortnightly basis, for approximately 2 hours each fortnight. He asked Mr Peach what to do if he could not complete his task within the hours Mr Peach wanted him to do, and he was told by Peach to "just leave it [the rubbish] there".
Whilst it may be inferred the defendant recognised the need for this measure of fire protection, Mr Davies said that pushing up of the waste had several purposes, including keeping the dumping area tidy, and was not prepared to accept its relevance to fire risk reduction in isolation.
Mr Davies said that tip supervisors were given instructions about large heaps of grass clippings being undesirable and identified the practical reality, based on his experience, that grass clippings are spread by the various things done at a tip. Pushing up the grass clippings at the tip face would spread them out.
Mr Peach acknowledged that the there was little cover around for the general waste at the Walla Walla land fill which resulted in the rubbish being pushed up but not covered. There was an endeavour to compact it.
Mr Peach said the two areas of the tip that he was concerned the fire could break out of were the general refuse area and the green waste area, because of the nature of the material deposited. The photographs taken by Mr Peach are on 17 December 2009 of the rear of the bund on the western end of the tip bund show the extent of general waste pushed at the site, which was left exposed and generally uncompacted.
The plaintiff submitted that the change which Mr Davies authorised in August 2009 from a weekly to fortnightly push of waste at the Tip by Mr Jacob changed the fire risk, because there was no attention to the amount of material deposited over a two week period until it was pushed. This change increased the risks.
In this respect the plaintiff also relied upon the above stated concession of Mr Davies with respect to the Crawford and Singe letters.
[55]
Discouraging Intruders
In the Joint Report the experts identified "erecting a perimeter fence of some sort to act as a discouragement to intruders" as a reasonable fire precaution. This measure was not relied upon by the plaintiff, save for acknowledging it was identified by the experts. In response, the defendant simply submitted that there is no evidence to suggest that intruders had anything to do with the outbreak of the fire.
[56]
Conclusion: Breach of Duty
I consider that a reasonable person in the position of the defendant would have adopted and implemented the fire precautions which the experts opined were reasonable in the Joint Report and their concurrent evidence, excepting for "having fire fighting equipment permanently available at the tip", noting my earlier conclusion that such a measure would not be a step that a reasonable person in the defendant's position would have taken, either having regard to cost or practicality. I should also note, in that respect, that I do not consider Dr Green's disagreement with one of the precautions mentioned in question 6 of the Joint Report represents a significant and proven departure from the identified list of reasonable fire precautions advanced by the other three experts.
That conclusion may be reached upon the basis of the reasons given by the experts for their opinions which are sound and rational and derived from or fall within their area of expertise, noting an exception in that case with Ms O'Toole save as to design measures. It is true, as the defendant submitted that the experts were not tip management experts as such, but their opinion is derived from their "knowledge of fire and fire safety" (for example, Mr Nystrom's qualifications and experience concerned fire investigations). Their opinion cannot be so lightly discounted. That is particularly so given that, in many respects, the opinions held by the experts as to reasonable fire precautions coincided with the opinions of persons responsible for the day-to-day administration of fire management at the Tip, even if some of those persons did not have formal training. That includes the recommendations of the Rural Fire Service.
I consider that it was reasonable for a person in the position of the defendant to take the precautions identified in paragraphs (a), (b), (c) and (d) to prevent the spread of fire once ignited in the Tip.
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.
[57]
The Plaintiff
In summary, the plaintiff made the following submissions as to causation with respect to the limb of its claim concerning the spread of fire:
1. The evidence established that the fire would have been extinguished, contained or controlled prior to exiting the Tip or alternatively reaching Walla Walla-Jindera Road if the defendant had not failed to take the necessary precautions in tip management.
2. In written submissions, the plaintiff referred to the evidence as to the known physical conditions of the Tip at the time of the fire, which caused both the ignition of the fire and its escape from the Tip. The plaintiff referred in this respect to, for example, the large deposits of contaminated, combustible waste in the green and household rubbish areas and tall cured grass and other heavy vegetation between the piles of waste, linking the general-household waste area to other areas within the Tip for deposit of different types of waste.
3. Reference was made to the evidence of Mr Grosse. It was submitted that Mr Grosse's evidence was that, when he arrived at the Tip, the majority of the fire was still in the Tip area inside the netting fence, except on the southern side. His evidence was, it was submitted, that he did not believe there was any burning outside the netting fence although there was a little bit on the golf club side. Having regard to my earlier findings, I do not consider that submission properly captures Mr Grosse's evidence. I will return to this evidence below.
4. The plaintiff then referred to other pieces of evidence such as Messrs Pumpa, Jacob and Walker.
5. As to the evidence of the experts, in the written submissions of the plaintiff it was stated that "the experts accepted that the spread of the fire would be inhibited or stopped by the implementation of various steps including waste segregation, fuel reduction and adequate firebreaks". In oral submissions, the plaintiff referred to the statement of the experts in the Joint Report (at question 8) that "the slowing effect of other measures [other than the presence of a person at the Tip] might have bought sufficient time for the fire fighters to successfully intervene". The plaintiff submitted that ultimately the question of causation is to be determined by the Court on the totality of the evidence. The Court may be informed by the experts but the Court is to make its own judgment.
6. In that latter respect, the plaintiff submitted the Court should have regard to the speed of the fire and where applicable people were at various times. If appropriate steps had been taken by the defendant then the speed of the fire would have been much less. The fire spread quickly because of the high level of fuel so that even a quick response by the community could not effect suppression. Given the time it took for Mr Grosse to arrive at the fire, if the fire was of lower intensity and had moved more slowly (and therefore for a lesser distance) Mr Grosse's tanker alone would have been able to stop the fire. Further, other fire fighting appliances reached the Tip soon after Mr Grosse.
7. In those circumstances, the fire fighters would have been able to get in front of the fire in contrast to the circumstances on the day of the fire, because of the fuel intensifying the fire they could not do so. Further, the fuel that existed on the day had the capacity to "spot".
8. In all it was submitted that the circumstances were such that there would not have been an escape on the balance of probabilities from the Tip if the reasonable precautions required of the defendant had been taken by it, including the building of an appropriate firebreak.
[58]
The Defendant
In summary, the defendant made the following submissions as to causation:
1. No one had been able to say, on the balance of probabilities, what caused the fire or where it started.
2. The existence of these facts are usually necessary to determine factual causation.
3. The evidence in this case did not establish what caused the fire and to the extent that anything done by the defendant influenced the risk of a fire starting that is not sufficient to establish causation.
4. All experts agreed that none of the approved precautions would prevent the starting of the fire and the highest the experts would put their position, as to the cause of the spread of the fire, was that the absence of the precautions "might" have the effect of slowing the progress of the fire.
5. As to the question of timing and Mr Grosse's evidence, it was submitted that, by the time Mr Grosse arrived, the fire had already travelled through the fence, around the perimeter of the Tip towards Walla Walla-Jindera Road. He described in para 9 of his statement that he accepted the fire had advanced sufficiently far across the golf course that he had to take his truck back up the driveway to the gate of the Tip and to drive to the road to fight the fire. By the time he got to the Walla Walla-Jindera Road the fire had already jumped across the road. On this evidence, the plaintiff is unable to establish that, if the measures or precautions had been taken, the fire would have been stopped from spreading beyond the Tip or the Walla Walla-Jindera Road.
[59]
Expert Evidence
I have previously referred to the question and answers given by the experts as to questions 6 and 7 of the Joint Report. Both of those questions are relevant to the present question of causation. Two other aspects of the Joint Report should be referred to in this context: that is question 4 and 8. Those questions and answers are extracted in full below:
Q4. Do you agree as to what caused or contributed to the spread of the Fire? If you do not agree what is the basis for your disagreement?
A4.
All three experts agree that the main cause of the spread of the fire were the prevailing weather conditions.
Mr Crowe and Mr Nystrom think that if the locations at which different types of rubbish within the tip had been deposited were well separated and the ground between them kept cleared, any fire which began in an available fuel load within the tip would have taken longer to reach the stage at which the wind would propagate it. This is because it would have less opportunity to cross into another fuel load within the tip, be it other rubbish or grass or trees.
Dr Green adds by way of supplementary comment that in the prevailing wind conditions the fire would have spread quickly in any event.
Q8. Which of the measures that should have been employed would have stopped the Fire from starting or spreading? If you do not agree as to which measures would have stopped the Fire from starting or spreading:
a) On which measures do you disagree?
b) Why?
A8.
The experts will answer this question by reference to the possible precautions set out in answer to question 6 for the reasons as to their concept of their role given in answer to question 7.
All four experts agree that none of those precautions would prevent the starting of a fire by lightning or deliberate ignition. So far as other possible sources of ignition are concerned, the precautions would have reduced the risk of ignition.
As to the spread of fire, the presence of a person at the Tip, who could use available fire fighting equipment, at the early stage of the fire's development would have prevented its spread. Absent that, the other measure would have slowed the development of the fire, but the particular wind conditions at any time would be very important. If the prevailing wind conditions did not cause a quick spread of the fire, the slowing effect of the other measures might have bought sufficient time for fire fighters to successfully intervene.
[60]
Conclusion: Causation - Escape of the Fire from the Tip
In my view, the plaintiff has failed to prove, on the balance of probabilities, that the failure by the defendant to take the pleaded steps or precautions to prevent the spread of the fire caused the particular harm suffered by the plaintiff. In other words, the plaintiff has not demonstrated that, if the reasonable precautions were sufficiently taken, that the harm caused to the plaintiff by the spread of the fire would have been avoided. Hence, the plaintiff has failed to show factual causation, namely, the negligence was a necessary condition of the occurrence of the harm.
Whilst I have found breach of the duty in relation to the failure to sufficiently take some of the pleaded precautions (where a reasonable person in the defendant's position would have taken those precautions and the defendant was found to have insufficiently done so), I agree with the submission of the defendant that the evidence in the case rises no higher than that, some actions, steps or precautions which might have been taken would have influenced the risk of fire spread: Carangelo at [71].
As earlier mentioned, the experts agreed that six out of seven of the precautions identified in the answer question 6 in the Joint Report were reasonable fire precautions. The experts did not determine whether the Tip was adequately managed or managed reasonably or what the defendant should have done. .
When the consideration of the "presence of a person" is put aside (noting that, the Court has found that, if sought, the step of placing a person at the Tip who could use fire fighting equipment and the placement of that fire fighting equipment at the Tip were not that required of a reasonable person in the defendant's position, for the purposes of s 5B(1) of the Civil Liability Act), the experts' opinion was that the measures identified in the answer to question 8 would have only "slowed the development of the fire" subject to the particular wind conditions at any time being a further important consideration. The highest the opinion of the experts reached as to the spread of the fire, assuming (contrary to the evidence) that the prevailing conditions did not cause a quick spread of the fire, was that "the slowing effect of the other measures might have bought sufficient time for the fire fighters to successfully intervene". It follows, as the defendant submitted, that persons eminent in the field in considering the questions as to ignition and spread of fire, were not prepared to express an opinion that it was more likely than not that the measures would have slowed the fire to such an extent as to provide sufficient time for fire fighters to successfully intervene.
[61]
General Principles
The act (or omission) on which a claim in nuisance is based may be one indirectly causing a physical injury to land, or a substantial interference with its enjoyment or an interference with rights over land: R Balkin and J Davies, Law of Torts(4th ed, 2009, LexisNexis Butterworths) at 453 [14.7].
A nuisance is an unreasonable interference with the use and enjoyment of land: an "invasion of the common law rights of an owner or occupier of land": Hargrave v Goldman (1963) 110 CLR 40 at 60 (per Windeyer J).
The cause of action belongs only to the person with property rights. A plaintiff can only sue in nuisance if he or she has an interest in the land affected: Law of Torts at 466 [14.33]. However, those who merely reside with the owner or tenant, even though as a member of his or her family, have no standing to sue in nuisance, despite the fact that the damage complained of is suffered by all members of the household: Law of Torts at 466 [14.33], citing Oldham v Lawson (No 1) [1976] VR 654.
375 In order to have standing to bring an action in private nuisance, the plaintiff must have some property rights in or over the land affected, or must be an occupant of that land. Further, only unreasonable interferences are actionable in nuisance: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79 ("Southern Properties") at [118].
Consistent with the terms of s 5A(1) of the Civil Liability Act, in Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 ("Warragamba Winery Pty Ltd"), the Court said (at [669]):
[669] Since Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 the common law of Australia concerning liability for permitting a fire to get out of control has been absorbed in the tort of negligence.
(See also Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31 per Giles JA at [58] (with McColl JA and Hunt AJA agreeing); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 ("Gales Holdings Pty Ltd") per Emmett JA at [144] and Leeming JA at [276]-[283], namely, damages for nuisance can only be recovered if the loss is reasonably foreseeable, and not merely loss suffered as a direct result of the nuisance).
[62]
Statutory Authority
The defendant succinctly and correctly set out the relevant authority in nuisance, with respect to statutory authorities. The following derives from that analysis.
Pursuant to the common law, if a statute has authorised the doing of something which, after taking all reasonable care and adopting such precautions as are reasonable in the circumstances, nevertheless constitutes a nuisance, then Parliament must be taken to have authorised a nuisance to that extent: Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354 at 369 per Isaacs J.
In Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46, the High Court dealt with a Council's reliance in answer to a claim in nuisance on the defence provided for by s 733(1) of the Local Government Act. At [16], Gleeson CJ, Gummow, Hayne and Callinan JJ said:
[16] However, neither at trial nor in the Court of Appeal does attention appear to have been drawn to a line of authority marshalled by the English Court of Appeal in Marcic v Thames Water Utilities Ltd ([2002] QB 929 at 988). This indicates that a body such as the Council is not, without negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise, its statutory powers. In this Court, it had been remarked by Gavan Duffy and Starke JJ in Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 197:
"And though it was said in argument that the Company's claim was founded upon either trespass or nuisance or negligence, still the liability of the Corporation must depend upon whether, in the exercise of its statutory powers, it has acted negligently, so as to do unnecessary damage to the Company."
In the identified decision of Marcic v Thames Water Utilities Ltd [2002] QB 929, Lord Phillips said (at [60]):
[60] In Department of Transport v North West Water Authority [1984] AC 336 statutory authority was invoked by way of defence by a water undertaker in answer to a claim in nuisance in respect of damage caused by a burst water main. Webster J set out the following propositions, which were subsequently approved by the House of Lords, at p.344:
"1. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed upon it by statute: see Hammond v Vestry of St Pancras (1874) LR 9 CP 316. 2. It is not liable in those circumstances even if by statute it is expressly made liable, or not exempted from liability, for nuisance: see Stretton's Derby Brewery Co v Mayor of Derby [1894] 1 Ch 431, and Smeaton v Ilford Corpn ([1954] Ch 450. 3. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if, by statute, it is not expressly either made liable, or not exempted from liability, for nuisance: see Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597; Longhurst v Metropolitan Water Board [1948] 2 All ER 834; and Dunne v North Western Gas Board [1964] 2 QB 806. 4. A body is liable for a nuisance by it attributable to the exercise of a power conferred by statute, even without negligence, if by statute it is expressly either made liable, or not exempted from liability, for nuisance: see Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB 772..."
[63]
The Plaintiff
I now turn to a summary of the submissions advanced by the plaintiff pursuant to her claim in nuisance:
1. The defendant is also liable in nuisance as it unreasonably interfered with the plaintiff's use and enjoyment of her property at Gerogery.
2. The relevant test, as applicable in the present case, is whether it was reasonably foreseeable to a person in the position of the defendant that neighbouring properties would be exposed to a threat of damage, which is foreseeably likely to result from the state of its premises. That is, whether it was reasonably foreseeable that a poorly managed and maintained tip might cause or contribute to the ignition of a fire which might spread to adjoining properties.
3. In light of the evidence before the Court, the plaintiff submitted the Tip was a potential nuisance in the sense that it was a potential source of ignition of a fire, which could spread beyond its boundary having regard to the state of the premises.
4. There is no doubt that the nature of the harm suffered by the Plaintiff - property damage caused by fire - was foreseeable to the Shire. Further, that fire, in destroying and/or damaging property, is unreasonable interference. Instances of nuisance by material damage to property include damage by fire: Goldman v Hargrave (1966) 115 CLR 458; Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108.
5. No further argument was advanced in oral submissions beyond stating that nuisance is an action that exists independent of negligence and acknowledging that "the negligence has an influence in the question of foreseeability".
[64]
The Defendant
The defendant did not advance any written or oral submissions, with respect to the plaintiff's claim of nuisance, beyond an outline of the relevant authority (as outlined above). In reliance on that authority, in particular that which concerns statutory authority, the defendant contended that "if the plaintiff's claim in negligence fails, the claim in nuisance should also fail".
[65]
Conclusion: Nuisance
In my view, the authorities make clear that the failure of the plaintiff's claim in negligence in this matter should result in the claim under nuisance also being rejected. In any event, I consider the defendant was involved in the exercise of functions conferred by statute and, in the absence of an action in negligence, cannot be liable in nuisance.
[66]
SECTION 43A OF THE CIVIL LIABILITY ACT
In the circumstances, it is unnecessary to consider the defence raised by the defendant under s 43A of the Civil Liability Act.
[67]
CONCLUSION
Upon the findings made by the Court as to causation, the plaintiff's claim in negligence must fail and an order for costs made in favour of the defendant. So too must the claim in nuisance fail.
It is appropriate that the parties be given the opportunity of making further submissions on the common questions. The parties should confer as to those questions. I will make directions for the filing and serving of their responses in the light of this judgment. The parties shall have liberty to make further submissions as to costs.
[68]
ORDERS
In all the circumstances, the Court orders:
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.
[69]
ANNEXURES
Annexure A (580 KB, pdf)
Annexure B (1.89 MB, pdf)
Annexure C (1.43 MB, pdf)
Annexure D (1.05 MB, pdf)
Annexure E (1.08 MB, pdf)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 May 2018
pman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59
Department of Transport v North West Water Authority [1984] AC 336
Directors of St Helen's Smelting Co v Tipping (1865) 11 ER 1483
Electro Optic Systems v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45
Elston v Dore (1982) 149 CLR 480
Fairall v Hobbs (2017) 347 ALR 151; [2017] NSWCA 82
Fitzgerald v Penn (1954) 91 CLR 268
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382
Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151
Glasgow Corporation v Muir [1943] AC 448
Goldman v Hargrave (1966) 115 CLR 458
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Hargrave v Goldman (1963) 110 CLR 40
Harris v Woolworths Ltd [2010] NSWCA 312
Holroyd City Council v Zaiter (2014) 119 LGERA 319; [2014] NSWCA 109
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 59 ALR 722; [1985] HCA 37
March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12
Marcic v Thames Water Utilities Ltd [2002] QB 929
Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31
Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354
Oldham v Lawson (No 1) [1976] VR 654
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36
Price v State of New South Wales [2011] NSWCA 341
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3
Road and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Shaw v Thomas [2010] NSWCA 169
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79
Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478
Stockwell v State of Victoria [2001] VSC 497
Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62
Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12
Texts Cited: C Sappideen and P Vines (eds), Fleming's The Law on Torts, (10th ed, 2011, Thomson Reuters)
Macquarie Dictionary (2nd ed, 1992, The Macquarie Library)
R Balkin and J Davies, Law of Torts (4th ed, 2009, LexisNexis Butterworths)
Category: Principal judgment
Parties: Sharon Patricia Weber (Plaintiff)
Greater Hume Shire Council (Defendant)
Representation: Counsel:
T Tobin SC with A Fraatz and C Nicholson (Plaintiff)
R Sheldon SC with A Barnett (Defendant)
Captain John Jacob, of the Walla Walla Fire Brigade, was at the Fire Station upon the arrival of Mr Grosse. They drove in Captain Jacob's fire truck to the Tip. It took Mr Grosse around 10 minutes from the time when he first learnt of a fire until he was at the road gate: that is to say he arrived at the road gate at or about 1.45pm.
Mr John Eric Seidel, a resident living on Schoff Road, approximately 3 kilometres east of the Tip, claimed that he was alerted to the fire by the smell of smoke around 1.30 or 1.40pm, at which time he stepped outside his property, and he observed smoke "bellowing into sky" above the Tip.
Mr Jacob recalled spotting the burning in the Tip at about 1.45pm. From his property on Springvale he too observed "smoke billowing out of the tip". He drove in his ute to his paddock to move his sheep away from the fire front; he was assisted by Mr Richard Schollick. He said "it took about 15 minutes to shift the sheep". During the shifting, Mr Jacob was assisted by his neighbours, Mr Alan Raynor and Messrs Gary and Daniel Mickan, who helped put out the fire in his paddock. Mr Jacob described the grass in his paddock as being "clover and rye" and "about 18 inches high". In contrast, the grass in the golf course was "over a metre high in a lot of places". By the time Mr Jacob's had shifted the sheep he said "the fire was coming onto my property", at which point he drove away to retrieve his fire truck. He accepted in cross-examination that it was around 15-20 minutes before he was in a position to use his truck and assist with the fire.
At around 2pm Mr Jacob returned, at that stage the fire had already pushed through the golf course and into Mr Jacob's paddock. He identified "[t]he problem was that as we thought we put it out on the flank, it kept reigniting". He said that the fire "would move and re-ignite to the sides making it impossible to stop its advance across the [Walla Walla-Jindera] road". Mr Jacob fought the fire predominantly on the southern side, from his property, with the assistance of "a few local brigade units". He described the fire front as "getting wider". He continued to put fires out on his property until the evening.
At approximately 1.50pm, after shifting his sheep, Mr Pumpa collected a tractor with a blade and graded the grass outside the boundary of his property on the western side of the Tip, in an effort to create a firebreak to protect his property. This was also observed by Mr Jacob. Mr Pumpa recalled that the fire was at that time "well and truly already across the top of the [T]ip and into the golf course". (Mr Pumpa said, in cross-examination, the fire was not in the golf course when he "first got there" but clarified that when he started grading on the western side the fire was "moving across the golf course").
Mr Grosse was the first to arrive at the Tip, together with Captain Jacob, to undertake fire fighting duties; they had a truck and fire fighting equipment. The road gate was locked. At this stage, Mr Grosse could not see where the fire had progressed to. Captain Jacob used bolt cutters to cut the lock (this took approximately 30-60 seconds) and they drove down to the tip entrance, being approximately 500 metres down the dirt road. Mr Grosse gave evidence that "[w]e were the only fire unit fighting the fire within the confines of the Tip. The other Walla Walla fire unit went to the opposite side of the fire to us".
In para 8 of his statement of evidence, Mr Grosse, inter alia, said:
The fire was in its initial stages when we first arrived, but it had already travelled though the fence around the perimeter of the Tip towards Walla Walla-Jindera Road. There was very tall grass within the Tip area and around the perimeter of the Tip. The fire was travelling very quickly.
When it was suggested by Senior Counsel for the defendant that his evidence (in paragraph 8) was that, when Mr Grosse arrived, the fire had already travelled through the fence around the perimeter of the tip", he stated:
Well it wasn't meant to convey that if that's the way you read it but we had a - cut the lock, opened the gates, drive down, we had 500 metres to drive, we could see smoke and when we got down closer the - to it, we're still I'd say - well from what I can remember the majority of it was still in the tip area beside the - inside the high fence except on the southern side I think had already started to go through into the golf course.
He was then asked and answered:
Q. The only place that you made any movements to active management of the fire was outside the fence, wasn't it?
A. It was outside the high fence of the tip but still in the roadway down to the tip, because the golf club - the tip was fenced - you had the road going down and you had grass either side of the road, to keep people off the golf - keep cars, traffic, whatever off the golf course, so you go down that fenced area, then you got down to where they dumped the rubbish in the tip. Now there was a high fence on the eastern side to stop paper and anything like that blowing out of the tip, the pit area, there was a pit area then there was the actual area where you drive up to and drop all the whitegoods, bottles, rubbish in, in the actual other tip, but it's all part of the tip itself.
Mr Grosse was then pressed on the first sentence of the above extract from para 8 of his witness statement. He stated:
Q. Second sentence of that on the second line begins, "The fire was in its initial stages when we first arrived." Is that right?
A. "The fire was" - yes I would say that was right.
Q. "But it had already travelled through the fence around the perimeter of the tip." That's right too, isn't it?
A. Yes, yes about the actual dumping area in the tip, yes.
Q. And it was on its way towards Walla Walla Jindera Road, wasn't it?
A. Yes. Well it was basically into the golf course heading towards the Walla Jindera Road.
Q. There was tall grass in the golf course, wasn't there?
A. Yes.
Q. The fire raced across the golf course, did it not?
A. It definitely did.
Q. To a point where it crossed the Walla Walla Jindera Road?
A. Yes.
In re-examination, Mr Grosse stated that he found it hard to recall if the fire was burning outside the netting fence, but he did not believe it was "unless there was a little bit on the golf course side".
Mr Grosse's account of the escape of the fire in his statement was given on 15 July 2016. At that time, he had a clear recollection that, at or soon after his arrival, the fire had escaped the perimeter of the Tip and was heading to Walla Walla-Jindera Road. I do not consider his initial response in cross-examination was prevarication but simply Mr Grosse's attempt to recall. When pressed, his recollection conformed with his statement. His answer in re-examination was again affected by issues of recollection.
This analysis proceeds to the comfortable conclusion that Mr Grosse's evidence was that, upon his arrival at the Tip, he observed that the fire had, at least in significant part, escaped the Tip and was heading at a rapid pace through the tall grass within the golf course to Walla Walla-Jindera Road.
Mr Grosse confirmed he and Mr Jacob immediately attempted to fight the fire and moved the truck to the eastern side of the netting fence surrounding the dumping area but still within the formal boundary of the Tip. He described the terrain on the eastern side as "rough", which caused the truck to lurch, and commented on the grass at the golf course not being maintained. It took approximately two minutes to exit that area. Those topographical difficulties rendered them with no option but to take the truck back up the driveway to the road and to the road to fight the fire at which stage he recalled the fire had "already jumped the road" (I will refer to that evidence below). Mr Grosse recalled moving into the neighbouring paddocks to fight the fire. Mr Grosse continued until approximately 5pm that day.
He gave the following evidence as to his efforts at fighting the fire initially at the Tip and thereafter:
Q. Because your assessment of the situation was that there was no hope of stopping the fire at its front at that stage, was there?
A. Well we couldn't stop the fire at its front because we were in the confines of that roadway. We had to turn around and go up to where the gate - we'd cut the bolts, turn right and then go into the golf club area to try and stop the fire there, but by the time we got into that area, the fire had raced up and it beat us to where there was a dam and a creek and then got over that and then it got to the road, jumped the road, so we had to go back out again and into the - a property next door.
Q. How long do you think it was until the fire jumped the road - perhaps I'll put it differently which might help you. How long was it between you arriving at the gate and the fire jumping the road?
A. Now which - when was this, arriving at the - to cut the bolt?
Q. Cutting the bolt, from that time until it jumped the road?
A. I would - I'm not real sure but it probably would've been about under - or ten, around ten, 12 minutes, 15 minutes, something like that.
Q. There was no fire to fight from the laneway leading from the Walla Walla Jindera Road to the hut at the tip was there?
A. Not at that stage.
Q. Because all the fire was heading south and east from there was it not?
A. More east, southeast.
…
Q. That meaning has really got nothing to do, can I suggest to you, with your going from a point immediately outside the tip down to the road to fight the fire there, has it?
A. Yeah, right, it was - the road was the tip area, the laneway was the tip area, apparently, I've been told of that. But when we got up there, we thought we could - we had to go back out the - the gates that we cut the bolt on, we had - we - there was a gate going into the golf club, we thought, well, with a bit of luck, we can possibly try and stop it before it gets to the road, but it was going across on that east, south easterly angle.
We raced across the other side to try and get to it to stop - stop it there, but there was a dam and a creek, we got to that, we couldn't get over the dam, we couldn't get through to the creek because it was too deep, and the fire came up past us. We seen, looked and we seen it had jumped the road so we raced back out onto the Jindera Walla Road and then into the neighbouring property. That's - that's what happened.
…
Q. What your statement suggests, I want to put to you, is that having stopped outside the tip, you withdrew to the Walla Jindera Road, by which stage the fire had already jumped it, is that correct?
A. We didn't go directly from the tip to the Jindera Walla Road, we went into the golf course first to try and stop it, then we went onto Jindera Walla Road.
In his statement, Mr Grosse also recalled a third person being present upon arrival at the gate. He met someone whom he believed to be "one of the Odewahn brothers" seeking to assist. This evidence was not corroborated by any further witnesses and was relevant to an issue of causation, namely, that of deliberate ignition (discussed at a later juncture in this judgment).
The neighbouring residents assisted emergency authorities by defending the surrounding properties adjacent to the Tip. Further fire units arrived after 2.00pm and local residents continued to fight the fire up until the rain at 11pm. However, The combined efforts of local residents and fire authorities were unable to prevent the fire from jumping across Walla Walla-Jindera Road and ultimately spreading to the township of Gerogery.
I will return to the origins of the fire later in the judgment.
I now turn to a summary of the defendant's reply to the above pleadings:
1. The defendant for the most part maintained and repeated its earlier replies within the context of duty. This will not be repeated.
2. The defendant did not admit para 13 and made the following specific response to para 13(c)(ii):
[T]he construction and maintenance of a fire break around the perimeter of the Walla Walla Rubbish Tip before 17 December 2009 was work carried out by a person other than the Defendant or its employees.
1. As to the golf course, its location and ownership, this has since been agreed by the parties in the agreed statement of facts.
2. The defendant did not admit the "foreseeable local conditions" for the Tip as pleaded by the plaintiff at para 15 of the further amended statement of claim.
3. The defendant otherwise denied paras 15-17 of the further amended statement of claim.
As to the reference to "the perimeter of the Walla Walla Rubbish Tip", the evidence and submissions by both parties reveal that, in that instance, the perimeter concerned the netting fence within the Tip.
By reasons of one or more of the above Tip Management Failures, the plaintiff pleaded that the defendant breached its duty. This was identified as "the Tip Management Breach".
In response to the breach as pleaded by the plaintiff, the defendant denied each paragraph and each and every particular pleaded therein, and made the following specific responses:
1. The defendant repeated its response at para 13(c) of its pleading (extracted above at [66(2)]) (in response to para 18(b)(i) and (ii)); and
2. The defendant said it inspected each of the four designated waste areas at the beginning and at the conclusion of each day the Tip was open for operation (in response to para 18(b)(i) and (c)(ii)).
Deane J also relevantly observed (March v Stramare at 435-436):
… the mere fact that something constitutes an essential condition (in the "but for" sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a "cause" of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a "cause" of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a "cause" of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred "but for" the original gift. As Lord Reid pointed out in Stapley (at 681):
The question [of 'what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.
Further relevant developments by the High Court, cited in March v Stramere, included the following:
1. In Chapman v Hearse, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, "it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act" (at 122).
2. In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725):
A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [[1970] SC(HL) 20 at 25]. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 [at 124-5]. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid, at p 122).
The two-fold common law approach in March v Stramare, set out above, is now reflected in s 5D of the Civil Liability Act. A determination that the defendant's negligence caused particular harm requires satisfaction of the following:
1. whether the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and
2. whether it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").
Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of "probable causal connection between the breach of duty and the harm suffered": C Sappideen and P Vines (eds), Fleming's The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70].
Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a).
In Carangelo v State of New South Wales [2016] NSWCA 126 ("Carangelo") at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect:
[71] Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41]-[43]).
A summary of Mr Walker's examination and findings follows:
1. On 19 December 2009 he met with Senior Constable Adam Larkin, Forensic Services Group of the New South Wales Police. They travelled, together with Superintendent Joe Knox, in an aerial reconnaissance to identify the fire area, direction of travel, and impact of the fire on houses in Gerogery.
2. Mr Walker identified the following macro indicators, with respect to fire area, the direction of travel and the impact of the fire, during the course of the aerial investigation ("the macro indicators"):
1. "The burnt area to the east of the Olympic highway was much wider than to the west. This indicated to me that the fire had originated further northwest and burnt towards the southeast"; and
2. "[Travelling west north-west] I saw more evidence to support the direction fire travel being from further west, indicators supporting this were, trees scorched on the western side of residences yet little or no evidence of scorching was visible on the eastern side".
1. The macro indicators revealed the fire had burnt towards the south east and enabled Mr Walker to identify an area south of Walla Walla, on the west side of Walla Walla-Jindera Road as an area of interest. This area was later confirmed by him as "the Walla Walla tip site".
2. Further observations were made at ground level. Mr Walker travelled by vehicle, with Senior Constable Larkin, to Gerogery, back along the direction that the fire travelled, and proceeded to the entrance to the Tip. The following observations were reported:
1. From the intersection of the Walla Walla-Jindera Road and West street, Mr Walker confirmed "the direction of fire travel, being from a westerly direction. Indicators in this area included intense scorching of large pin trees on the east side of West Street, oxidization of iron fencing in the same area, leaf freeze on trees on private property, east side of West Street, scorching and charring on fence posts and power poles".
2. "From West Street, looking towards the northwest, the paddocks were burnt bare. This was due to the intensity of the fire and the speed in which it travelled. Two large gum trees in the paddock showed no effect from leaf scorch, such was the pace of the fire yet one tree was alight within burning, from the inside out. I was satisfied that the origin of this fire was located further west".
3. Travelling west along the Gerogery Walla Walla Road, Mr Walker saw "many indicators" that confirmed the fire origin being "further west", namely, "leaf freeze on trees and shrubs, scorching on posts and poles, charring on posts [and] scorching on buildings".
4. Turning left from Gerogery Walla Walla Road on to the Walla Walla-Jindera Road, Mr Walker reported that "[t]he areas on both sides of the road were unburnt". However, he noted that the paddocks west of the road, situated on private land, had "low intensity burn… along the northing boundary, outside the tip". This "low intensity burn" was identified as "back burn", controlled burning in order to strengthen the northern containment line.
5. As Mr Walker travelled closer to the Tip, he observed "evidence of leaf freeze pointing towards the east southeast, fence posts with wrap around sooting on them and scorched shrubs". He reported that "these all indicated that the fire had travelled from west to east".
6. Fuel loads in the area, west to east along the track towards the Tip, and anywhere east of the Tip enclosure were not identifiable as there was nothing left. Mr Walker observed this to be an indication, in light of the above factors, that the fire was "a fast moving ground fire".
7. The location upwind of the Tip, in the northwest corner, was still burning on the day the investigation was conducted.
8. Mr Walker also confirmed back burning activity along the northern boundary, which continued beyond the western perimeter of the tip site. Whilst there was no evidence that burning had been undertaken to strength the western boundary along the track and fence, Mr Walker also observed that there no visible signs of the fire occurring west of the boundary track.
9. Between the western boundary track and the tip face Mr Walker observed the following, which indicated the presence of low intensity burning that may have been the result of back burn: "leaf freeze on a shrub inside the burn area beside the track".
1. The Tip was still alight on 19 December 2009, and "due to the amount of disturbance by heavy machinery and the hazards present", Mr Walker decided that examining the tip face was not a possibility.
2. Having examined all of the available evidence and identified a general area of origin, being the Tip, Mr Walker made the following determination into the cause and origin of the fire:
1. the fire started inside the Walla Walla Tip compound ("somewhere near grid reference 55H 0489835 - 6040749"); and
2. burning debris of an unknown type is the possible ignition source.
1. Mr Walker stipulated in his statement: "my opinion based on all the evidence gathered that this fire started inside the Walla Walla tip compound; somewhere near grid reference 55H 0489835 - 6040749. This is the closest grid reference possible due to the hazards contained within the vicinity".
Two factors impacted upon the specificity of Mr Walker's report:
1. First, the Tip was still alight on 18 December 2009 and sections were deemed too hazardous to inspect.
2. Second, the Rural Fire Service were conducting fire suppression activities (i.e. back burning) at the time of the fire and investigation. The back burning was along the northern boundary and continued beyond the western perimeter of the Tip. This secondary source of burning could not be definitively distinguished from the burn caused by the fire, namely, the "backing fire". Backing fire develops at the heel of the fire and travels upwind from the point of ignition. The experts did not dispute the occurrence of this "phenomenon". However, its impact was the subject of disagreement.
As to Mr Walker's observations with respect to leaf freeze, it is apparent that this micro indicator, found at ground level, was primarily utilised for the purpose of ascertaining fire direction. Additionally, Mr Walker's analysis of its presence, in combination with other micro indicators, that it could be suggestive of "low intensity burn" associated with back burn. The presence of leaf freeze, in and of itself, did not confirm the point of ignition of the fire (or as it will be discussed the cause of the fire).
Mr Pumpa refined his observation of smoke coming from the western end of the Tip to the nomination of the south western corner of the dumping area. Mr Reeves identified smoke coming from the western end of the Tip.
On balance, as I have noted, the evidence reveals, on the balance of probabilities, the fire started at the western side of the Tip.
Dr Green conceded that data as to solar fluxes did not conclusively prove the existence of dry lightning but contended it supported his theory. He accepted in the absence of time data, the highest the evidence of solar fluxes can be put is that it indicated the existence of clouds or the presence of cloud coverage (albeit at an undeterminable time) may be inferred. As mentioned above, Dr Green also relied on the existence of an extreme weather event at the time of the fire to strongly suggest that the conditions for the formation of clouds were present at that time. It was put to Dr Green that a lightning tracking report suggested any lightning strike within the area occurred approximately 30 kilometres away, Dr Green disputed its accuracy.
Dr Green's theory as to why the trajectory of the fire is demonstrative of dry lightning is somewhat opaque. In his concurrent evidence he revealed the theory concerns the path of the fire and, in a sense, its point of origin. It did not advance or support any conclusion with respect to the existence of dry lighting.
Before turning to the final factor identified by Dr Green, it is necessary to mention a factor as to the cause of the fire mentioned by him during the concurrent evidence to support his thesis regarding lightning.
Dr Green also referred to the evidence of low intensity fire west of the bund in support of his theory as to the cause of the fire. In this respect, particular reliance was placed upon Mr Walker's observations as to "leaf freeze". This evidence drew a sharp rejoinder from Messrs Crowe and Nystrom, who emphatically disputed its relevance to a theory of dry lightning. In this respect Mr Crowe opined, "[leaf freeze] is simply an indication of which way the wind was blowing at the time the fire passed" and concluded "[its] a collection of leaves that doesn't tell us a thing". Mr Nystrom accepted the opinion of Mr Crowe and added, in this respect, "[t]he explanation that Dr Green gave there didn't sound to me like it was an explanation as to why dry lightning was the likely cause".
In the same light, Dr Green's observations with respect to the ellipsoid pattern of the fire also attracted much attention. Mr Nystrom highlighted, again, that the observations, whilst objectively apparent on the evidence, were not relevant to the theory of dry lightning.
The final factor relied upon by Dr Green was the recollection of Mr Jon Reeves hearing an explosion. Mr Jon Reeves evidence in that respect was as follows:
Between 1.30pm and 2pm … I heard like a big explosion like something blowing up. The sound came from the vicinity of the rubbish tip…
I saw smoke and flames …There were sounds of more explosions like aerosol cans and gas bottles exploding.
In my view, Dr Green's evidence on this theory was demonstrative of the expert moving to a position of advocacy in support of his theory as to the cause of the fire igniting, or, at least, Dr Green being wedded to a theory, irrespective of the difficulty confronting its maintenance. For example, Dr Green attempted to explain why, notwithstanding Mr Jon Reeves did not in any way refer to thunder, he should be taken to have been describing the same:
WITNESS GREEN: If I may add to that, I don't disagree with the misuse of the term "explosion" but in this setting you had witnesses that were half a kilometre away from the sound, if it was generated at the tip, and it was loud enough to what appears to be a startle reaction. So they were unaware of anything until after they heard that noise and they looked around. Consequently it has to be loud enough to go effectively against the wind to actually be heard.
Now things like aerosol cans popping off would not be loud enough under those circumstances. There's no evidence of large gas cylinders which might give that type of effect being there on that site and you're left with other sources of loud sound and one of those is lightning.
The evidence he gave, in this respect, was an admixture of speculation and stretching the limits of credulity to maintain what was potentially inconsistent with his theory in order to maintain his theory.
I would interpose that my general impression of Messrs Crowe and Nystrom was that they consistently attempted to give evidence in a fair and balanced way, readily conceding when adjustments or reflection were required in any part of their evidence. An illustration of such a response by Mr Nystrom, in this respect, follows:
WITNESS NYSTROM: … One could really only ask the person - my, my views in my experience when people talk about an explosion, they, they hear a noise, they hear a bang, and many things make a bang, a parting arc, asbestos cracking, a gas bottle discharging when, when it's been cracked apart by the heat of a fire, aerosol cans discharging. They're not really explosions in the technical sense, they're more like deflagrations, many of those things, but they are commonly called explosions.
In my view, Dr Green's theory that the fire was caused by a lightning strike must be rejected for the following reasons. First, while solar flux and extreme weather conditions include conditions conducive to the formation of clouds, no witness gave evidence of observing clouds at the time of the commencement of the fire.
Secondly, Messrs Nystrom and Crowe roundly rejected Dr Green's theory on leaf freeze. I prefer their evidence as more objectively based and accept their reasons for the same.
Thirdly, and most significantly, in my view there was no evidence of the existence of thunder, a necessary pre-condition for lightning.
I do not consider Mr Jon Reeve's evidence of hearing an explosion may be converted to an observation of thunder. Thunder is a common experience in the community. The phenomenon is commonly, if not inevitably, described as such - 'thunder'. It strains credulity that Mr Jon Reeves, having heard thunder, would convey that he heard "an explosion" and then make no reference to thunder whatsoever.
That analysis cannot be explained away by theories as to whether or not, there may or may not have been material within the Tip capable of causing an explosion.
Further, when Mr Jon Reeves refers to the "big explosion", he redirects it as "a big explosions like something blowing up" indicating he is referring to something like the explosion of the aerosol cans and gas bottle explosions he later refers to in his evidence.
The evidence does not sustain lightning strikes as the cause of the fire.
A lynchpin to the spontaneous combustion at a tip, based on the natural forces referred to above, was the temperature generated by the operation of them, that is, the heat generation within (as distinct from the temperature of the day itself). As to the relevance of the temperature of the day being high, Dr Green accepted this was relevant to each possible source of ignition. Further, the prospect of that ignition may produce a bigger fire is added to by wind and high ambient temperature (this observation was not limited to spontaneous combustion).
Out of those largely theoretical constructs came the competing opinions of the experts as to whether the circumstances operating at the Tip at the time of the fire were sufficient to attribute causation to spontaneous combustion.
Before coming to the summary of the opinions expressed through the concurrent evidence it should be mentioned that the Court received photographic evidence of the state of the Tip:
1. Various photographs of the Tip taken on October 2009, annexed to the Statement of Bradley Peach.
2. Various photographs of the Tip taken prior to the fire, taken between 17-24 December 2009 (the source of that evidence was not identified).
3. Various photographs of the Tip taken after the fire.
It should be noted that the Court also had evidence as to the practices to controlling fire risk such as pushing up dirt on waste piles, together with other evidence such as the Tip layout, including, inter alia, Annexure B and a marked aerial photograph of the Tip identifying various aspects of the Tip, annexed to the statement of Kevin Mansfield dated 9 September 2016.
The opinion as to spontaneous combustion evolved throughout the course of the evidence, following the filing of their respective reports and the concurrent evidence, save for Dr Green who maintained his position that spontaneous combustion was not a cause of the fire.
The position of both Messrs Nystrom and Crowe were encapsulated in the Joint Report. After joining in the uniform position that the "actual and probable cause of the fire cannot be identified" they were recorded as stating spontaneous combustion was a possible cause. However, over the course of concurrent evidence, they both substantially qualified that opinion.
Mr Nystrom initially concluded that spontaneous combustion was "the most likely" cause of the fire in his report. He opined:
The fire was most probably the result of spontaneous ignition of green waste or ignition by way of inappropriately dumped rubbish, for example, broken glass in dry vegetation, or electrical interaction from a dumped car battery. The nexus between the prevailing weather conditions and the outbreak of fire, however, mitigates against the latter possibility in favour of the other two possibilities.
During the course of concurrent evidence, Mr Nystrom conceded that "spontaneous combustion" was only identified as "likely" because it "appealed to him the most". However, more significantly, he ultimately concluded that there was not enough evidence before the Court to establish spontaneous combustion as the cause. In particular, he accepted the photographic evidence cannot reveal with any kind of certainty the level of compaction, degree of moisture or internal temperature of a pile of refuse.
A similar conclusion was reached by Mr Crowe with respect to residual burn and spontaneous combustion, noting he stated did not differentiate between the two. Mr Crowe confirmed on the evidence he cannot confirm what caused the fire.
Dr Green maintained his position and described spontaneous combustion as "unlikely because… [t]he conditions necessary for spontaneous combustion do not appear to have existed". In particular, he opined that the small dumps of green waste would have allowed for the dissipation of heat, and, accordingly, prevent "a thermal runaway reaction". As to earlier rainfall in the month and its potential to impact the moisture content of the same piles, following subsequent dumping and potential compaction, he conceded "[i]t might do". However, he maintained "it depends on the level of compaction" and "the main driving force [for spontaneous combustion] is activating the oxidation, not outside influences".
The evidence did not sustain spontaneous combustion as the cause of the fire.
Nonetheless, in deference to the submissions of the parties as to the features of the matter which bore upon whether the defendant owed a duty of care to the plaintiff, I will undertake an examination of the features of the matter which establish a duty of care as if, as it were, the duty of care sought to be found was a novel one.
Both parties relied upon the judgment of Allsop P in Stavar which provided a non-exhaustive list of considerations relevant to the evaluative task of imputation of a duty. That list is as follows (Stavar at [103]):
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
As was made clear in Stavar, there is no suggestion that it is compulsory in any given case to make findings about all of these features although the consideration of any relevant features requires the close examination of the relevant facts.
Allsop P's judgment in Stavar makes further observations as to the task of imputation of a duty which is important. Those passages of the judgment are as follows (at [105] and [106]):
[105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody (at 579 [49]). The
assessment of the facts in order to decide whether the law will impute a duty,
and if so its extent, involves an evaluative judgment which includes normative
considerations as to the appropriateness of the imputation of legal responsibility and the extent thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.
[106] I have described "foreseeability" as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as "proximity" or "fairness" do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility.
In Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 ("Moody") at [50], the High Court (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) stated:
[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. … The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle...
Counsel for the defendant correctly made the submission that caution had been expressed in "later cases" regarding the use of Stavar as a shopping list of factors, although caution as to that approach was expressed by Basten JA in that very matter.
Basten JA stated (at [172]) that the factorial approach should not be treated as a shopping list, all items of which must have application in a particular case. Rather, it provided a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court.
The mechanical application of the "salient features" in Stavar as a shopping list of criteria to determine the existence and scope of a duty of care received recent attention in Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54 at [62], when Basten JA (with whom Simpson JA, on this discussion, and Sackville AJA agreed) made the following observations:
[62] Although the conclusion conforms to that reached by the trial judge, the reasoning does not. In a critical passage in the reasoning of the trial judge, the "salient features" analysis set out by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar was adopted. However, the risk, highlighted in Stavar itself, of treating the 17 listed salient features as a shopping list is illustrated in the present case. The trial judge rather mechanically applied them, starting with findings that it was foreseeable that an untrained casual employee would be injured by collapse of the beams, through to findings that there was no indeterminacy of liability, nor conflict with the structure and fabric of the common law, if a duty were imposed. Whether or not Strategic owed a duty of care to the plaintiff depended entirely upon its relationship with RTS; most of the salient features were entirely irrelevant to the relationship between RTS and Strategic. Only two "features" were directly material, namely a finding that Strategic had day-to-day control of the system of work at the yard and that Strategic assumed responsibility for the system of work. The Stavar salient features were not directed to establishing the relationship between two legal entities, neither of which was the plaintiff to whom the alleged duty was owed.
[Footnotes omitted].
McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 ("Graham Barclay Oysters") discussed the questions which may require resolution in considering whether there exists a duty of care owed by public authorities (at [84]). His Honour had earlier discussed those questions in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 ("Crimmins") at [93]. Both Graham Barclay Oysters and Crimmins were discussed in a passage from the judgment of Basten JA (with whom Beazley P and Sackville AJA agreed) in Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 at [36]-[39], which also aligned the discussion in those judgments with the notion of salient features in Stavar. That passage is extracted below:
[36] The statements of principles to be applied in determining whether a defendant owes a plaintiff a duty of care have undergone a degree of linguistic metamorphosis over the last two decades. It is now common in this country to require reference to the "salient features" of the relationship between the plaintiff and the defendant. In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649, Allsop P provided a list or catalogue of some 17 salient features, described as "a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content": at [103] and [104]. However, the value of such a catalogue is limited. As noted by McHugh J in Crimmins at [77]:
"Since the demise of any unifying principle for the determination of the duty of care and the general acknowledgment of the importance of frank discussion of policy factors, the resolution of novel cases has increasingly been made by reference to a 'checklist' of policy factors. The result has been the proliferation of 'factors' that may indicate or negative the existence of a duty, but without a chain of reasoning linking these factors with the ultimate conclusion. Left unchecked, this approach becomes nothing more than the exercise of a discretion ... There will be no predictability or certainty in decision-making because each novel case will be decided by a selection of factors particular to itself. Because each factor is only one among many, few will be subject to rigorous scrutiny to determine whether they are in truth relevant or applicable."
[37] Dealing with a case involving a public authority, McHugh J identified six questions, the answers to which might determine the existence or absence of a duty of care: at [93]; see also Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [84].
"1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."
[38] Gummow and Hayne JJ in Graham Barclay noted that the existence or otherwise of a common law duty of care allegedly owed by a statutory authority "turns on a close examination of the terms, scope and purpose of the relevant statutory regime": at [146]. The joint reasons continued at [149]:
"An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance."
[39] The joint reasons also noted that "[t]he factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority": at [150].
Before turning to the features relied upon by the plaintiff in the present case, attention may be directed to the observations of Basten J in Stavar as to the distinction between a duty to care and a breach of that duty. His Honour considered that some factors that are relevant to determining the existence of a duty may also be relevant to questions of breach (at [176]). He stated that the distinction between the existence of a duty and its breach is well understood but will depend in a particular case upon the degree of precision with which the duty is identified (at [164]). The distinction drawn by his Honour was as follows (at [177]):
[177] To the extent that similar factors are relevant in determining both duty and breach thereof, a critical distinction is the position from which each is to be assessed. Duty requires an objective prospective assessment of the risks foreseeable as possible, but not farfetched or fanciful, to the reasonable person in the position of the defendant. In order to give content to the duty, it would be necessary to consider the steps which might be available to such a person, and his or her capacity to take such steps as might mitigate or avoid the risk. The assessment of breach involves an examination of the actual conduct of the defendant and the options available in the circumstances of the case. This distinction is valid, but the interrelationship is clear. The defendant's conduct will be judged against a standard set by the content of the duty.
Discussion was continued in the following passages of his Honour's judgment at [178]-[179]:
[178] It has also been suggested that a determination as to duty is undertaken at a higher level of abstraction or generalisation than is the determination of breach. In a sense, that is to say no more than that one is a prospective (albeit conducted retrospectively) assessment of the circumstances as they arose prior to the conduct in question: Vairy (at 461 [124]) per Hayne J. Nonetheless, such statements appear to encourage the consideration of duty at a relatively high level of abstraction. That approach has been said to have been appropriate "by and large": see Neindorf (at 352 [50]) per Kirby J. The reason for such an approach is to avoid mixing questions of duty with questions of breach: see, for example, Brodie v Singleton Shire Council (2001) 206 CLR 512 at 627 [309] (Hayne J); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106] (McHugh J). This theme was picked up again in Vairy, where Gummow J, referring to the reasoning of Hayne J, stated (at 443 [60]-[61]):
"[60] The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective.
[61] In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue." (Citation omitted)
[179] On the other hand, the higher the level of abstraction at which the duty is identified, the less likely it is to provide any useful role in determining the outcome of the case: Vairy, per Gummow J (at 447 [73]); see also Amaca Pty
Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910 at 70,196 [137]; (2008) 5 DDCR 543 at 567 [137]. In other circumstances, the High Court has emphasised the desirability of having regard to the harm suffered by the plaintiff in considering the scope of the relevant duty, if any: see also Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ("The Wagon Mound") [1961] AC 388 at 425 (Privy Council - Viscount Simonds). As explained by Gummow J and Hayne J, in
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR
469 at 492 [81]-[82]:
"[81] In these circumstances it is neither necessary nor appropriate to decide any question about the existence of a duty of care. … It is not appropriate to do so because any duty identified would necessarily be articulated in a form divorced from facts said to enliven it. And, as the present case demonstrates, the articulation of a duty of care at a high level of abstraction either presents more questions than it answers, or is apt to mislead.
[82] Here, as in so many other areas of the law of negligence, it is necessary to keep well in mind that the critical question is whether the negligence of the defendant was a cause of the plaintiff's injuries. The duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid 'damage' in some abstract and unformed sense …"
The defendant made a submission that, with respect to the determination of duty, the initial task is to identify the relevant risk, relying in that respect upon Dederer.
It was further submitted that this was necessary because the way in which the risk is framed must address the precautions said to be necessary to address it, relying in that respect upon the judgment of Meagher JA in Garzo at [22] and the judgment of Payne JA (with whom McColl AP and Leeming JA agreed) in Fairall at [74].
It should, however, be noted that the authorities concern the question of breach. For example, the third proposition stated by Gummow J in Dederer at [18] was that "the assessment of breach depends on the correct identification of the relevant risk of injury". In Garzo, Basten JA (at [22]) was addressing the operation of s 5B of the Civil Liability Act and the necessity, in that context, for the plaintiff to formulate a claim in a way which takes into account the precautions which it is alleged should have been taken and the identification of the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.
As to the identification of risk in the context of considering the existence of a duty of care, reference may be made to the discussion of McHugh J in Graham Barclay Oysters at [81] where his Honour observed:
[81] Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty.
[Footnotes omitted].
As the defendant put it, the risk in the present matter was a risk of propagation and, it was contended, the risk that a fire having stated in the Tip would not be extinguished before moving to the golf course and then causing loss and damage up to 11 kilometres away.
In contrast, the plaintiff stated the risk of harm against which the defendant failed to take precautions was as follows:
a) At a general level "the risk of fire starting in and escaping from its waste facility at Walla Walla"
b) Expressed more narrowly "that waste at an unmanned landfill with overgrown unmanaged vegetation within its tipping area, without an adequate firebreak, refuse management, fire management (including suppression) plan, onsite water or fire suppression equipment, standing in proximity to land with high fuel loads, might ignite and spread beyond the tip to become a bushfire which, in turn, causes personal injury and/or property loss in the geographic area impacted by the fire".
The risk of harm in the present case is the risk of harm occasioned by a fire escaping the Tip.
Having regard to the rejection of the plaintiff's case as to causation with respect to ignition in the Tip, the plaintiff's case, in the remainder, becomes that the defendant was under a duty to the plaintiff to take reasonable care to avoid the risk of loss occasioned by the fire spreading beyond the Tip. The plaintiff's claim was for loss suffered as a result of the damage to property.
As I will discuss, the defendant had relevant control and management of the Tip from 2004. There was a fire at the in Tip in 2003 or 2004 and there was also a fire at another tip operated by the defendant in 2006. 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.
The risk of harm cause by a fire escaping from a tip was not far-fetched or fanciful but real and substantial. The potential harm caused by fire escaping from a tip located in the middle of farm land in the height of summer was real and substantial. The defendant knew of the risk of fires starting in its landfill sites and that, in the result, harm may be caused to members of the public.
I accept the submission of the plaintiff that the defendant had a knowledge that its acts or omissions in connection with the operation of landfills may cause harm to members of the public and that this was demonstrated by the defendant's general knowledge of the risk, its knowledge of management of its own waste facilities including the Tip and the history of fires in tips within the defendant's control. That knowledge goes to both the aforementioned question of foreseeability of the risk of harm and to other considerations arising as to the duty of care. By illustration, the greater the knowledge of the risk and seriousness of the risk, the greater responsibility on the defendant to take steps to deal with that risk: Graham Barclay Oysters at [82].
These findings are supported by those persons responsible for the day to day operation of the Tip: Messrs Michael Davies, Steven Pinnuck and Bradley Peach.
Mr Davies is the former director of the Environment of the Shire, employed by the defendant in the period from 2004 to 2010. He was also employed in various other council roles in Victoria and rural New South Wales during the period from 1970 to 2004, including his employment with Holbrook Shire Council before its amalgamation to form the Greater Hume Shire Council in May 2004.
As a qualified civil engineer, he was aware of the risks associated with fire in rural areas, and in his role including at Holbrook Shire he had a particular awareness of fire.
Part of his role was to supervise the waste facilities within the Shire, and although he had no particular training in fire management, his general experience gave rise to a concern as to, if a fire started in a tip, whether that fire could be suppressed, and further once a fire commenced, a concern as to whether it may escape from the tip. He agreed that a reasonable concern would be a lot of dry grass and build-up of grass which was in no way subject to any fuel reduction in respect of a fire developing and escaping.
Mr Davies 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. He understood grasses cure toward the end of spring into the early summer, and become quite flammable.
As the defendant's engineer, the person responsible for management of its landfills, he accepted in cross-examination that:
1. that a firebreak is particularly effective if the fire has not developed to the running stage; and
2. the concern with a high level of fuel is that if a fire starts and is a running fire by the time it gets to a firebreak, the firebreak is quite ineffective unless it is very wide.
Mr Davies wrote a strategy for the defendant in relation to the management of its tips (2007 Waste Management Strategy) based upon a previous report written for the Culcairn Shire (2004 Waste Management Strategy).
The 2004 Waste Management Strategy records "ongoing problems with poor site supervision in recent years have resulted in the wind blowing litter mixing of waste strands and inappropriate disposal of waste".
The Culcairn Shire Waste Management Strategy 2004 was prepared for the defendant's predecessor, the CSC, and included the recommendation to convert current landfill sites to waste transfer stations, including Walla Walla, and CSC providing a long term option of waste disposal.
The problems identified at the Tip in 2004 included:
1. indiscriminate dumping by local contractors;
2. waste dumped in inappropriate areas and often mixed loads;
3. level of waste separation and attention to detail was very poor; and
4. no facilities on site.
The 2004 Waste Management Strategy contained no recommendations in relation to options. Council amalgamations occurred shortly after (in May 2004). Little seems to have been done by the defendant in addressing these issues.
The 2007 Waste Management Strategy (dated November 2006) which, as earlier mentioned, was prepared by Mr Davies. The Tip is considered at page 5, including a photograph of uncovered waste in proximity to vegetation. Significant environmental constraints recorded include low lying nature and current land filling practices, limited life expectancy and uncovered waste in the pit previously used to dispose of collected household garbage.
It also recorded the Henty tip fire in 2006 and creation of better defined areas for green waste incorporating encircling gravel access to act as a firebreak and pad for green waste. This was not done at the Tip.
Mr Davies was familiar with each tip within the Shire, and conceded that there were different levels of clearance around tips and different practices for fire management from tip to tip. At some tips there was both bare ground around each of the areas of deposit with good firebreaks in between those areas and bordering fences.
Mr Davies said the general aim of the Waste Management Strategy reports, was to try to improve the defendant's waste system, and "the Walla Walla land fill was one of the things that I would have preferred to have closed".
Mr Pinnuck was the General Manager of the defendant. He acknowledged that councils from 2000 onwards were aware of the risks posed by tips, including a particular fire risk. Green waste is kept separate to minimise the potential of spontaneous combustion in the putrescible (general) waste.
Mr Pinnuck acknowledged the risk of spread of fire was greater in the summer months than in the middle of the year. Fire risks at the Tip were known to Mr Pinnuck by virtue of his role as general manager of the CSC prior to the amalgamation.
It was known to the Shire from 1999 that reducing the frequency of the push of waste at the Tip caused the waste to build up, and the tip to become unmanageable.
There were two particular areas of the Tip where there was a prospect of fire emanating: from green waste and from general waste.
Mr Peach has been employed by the defendant as Environmental Health and Building Surveyor since 2006, and from some time in 2008, waste management become part of his responsibility.
Mr Peach gave evidence that:
1. fires occurring in tips were a particular concern of local government authorities;
2. there are special risks with tips regarding fire;
3. the incidence of fires in tips is greater than in open broad acres;
4. in the management of the tip one of the risks the Shire ought to try and control was fires occurring, and if a fire did occur, prevention of such a fire spreading; and
5. a major concern in terms of the management of the tip was fire.
The letter written by Mr Robert Crawford, Manager Environmental and Community Services for the CSC (the role in which Mr Davies succeeded Mr Crawford) to the Culcairn North West Fire Brigade on 31 August 2000 in relation to fire safety at waste depots operated by the CSC also proved the defendant's knowledge of the condition of the Tip in 2009 ("the Crawford letter"). The Crawford letter referred to the CSC's plans for "fire safety" at their waste deposits and determination to create "a bare earth firebreak". There is also discussion of a "control burn off". Similarly there was, in evidence, a letter from the General Manager of the Council to two residents, Mr and Mrs Singe, regarding the "potential fire risk" posed to the residents' property by the Henty Waste Depot dated 13 May 2002 ("the Singe letter").
As to the defendant's actual knowledge of the previous fires, as earlier mentioned, Mr Davies gave evidence that in 2006, there was a fire at the Henty Tip, which the Shire concluded was the result of the burning of green waste spreading to the general garbage.
Mr Jacob had a contract with the defendant to push the waste of the Tip from March 2001. His company was MD & VC Jacob Pty Ltd trading as MD & VC Jacob Earthmoving and Trenching. He gave evidence that there was a previous fire at the Tip in 2003 or 2004. He attended the Tip at that time.
It follows that the defendant knew, or at the very least ought to have known, of an existing risk of harm arising from the Tip, namely, the escape of fires commencing in the Tip to a class of persons having a relationship with the defendant sufficient to create a duty of care. I will return to the question of relationship after considering whether the defendant was in a position of control and did have the power to control the situation that brought about the harm to the plaintiff.
The defendant did not deny that the Tip fell within its responsibility and that it exercised control over its operations. That control did not derive from ownership but from the operation of the Crown Lands Act.
The defendant raised some additional considerations relevant to the question of control. One of these is that the defendant was obligated, either politically or legally, to provide some waste disposal services to the residents of Walla Walla. The defendant also submitted that it did not assume responsibility: it was required to provide services to the residents of the municipality and to "take over" the running of the Tip from its predecessor. It did not have a choice as, on formation, as to taking possession of the Tip. Secondly, it was submitted that, whilst the defendant exercised a supervisory input over those who dumped material at the Tip, that could never be perfectly effected. Thirdly, it was submitted that the prospect of fire could never entirely be eliminated.
These considerations do not, however, materially impact, in my view, upon a conclusion that the defendant had effective power and control over the risks associated with the Tip including the risk of fire.
The plaintiff correctly submitted that, having regard to the evidence of Mr Davies as to the role of the defendant in relation to the Tip, that the defendant:
1. had control over who was permitted to go into the Tip;
2. exercised the right to control, inter alia, by giving out keys;
3. had the right to exclude anyone to go onto the Tip without permission;
4. obtained all revenue from the operation of the Tip - there was no private operator; and
5. occupied and controlled the Tip (an example was the significant control, power and discretion operated over the earth moving undertaken by Mr Jacobs by contract).
It is not to the point that the defendant may, had it exercised an effective control over the Tip, had not entirely eliminated the risk. It is sufficient to establish the existence of a duty that the failure of the defendant to take adequate measures increased the risk of harm arising from the escape of the fire.
Whether the defendant was obliged to undertake a waste disposal service, for whatever reason, is again largely beside the point. The Tip was established by the defendant's predecessors and was carried on by the defendant who then exercised supervision and control over the Tip including fire control measures. The measures available to prevent the risk of propagation of fire by its escape from the Tip (once it had commenced at that location) were matters falling within the power of the defendant. The actual cause of the fire in question, on the evidence in these proceedings, had few implications for the question as to whether a duty of care arose with respect to the risk that a fire having started would escape the Tip and cause damage (putting aside the question at the moment of relationship and indeterminacy).
The defendant also submitted that relevant to the control of the risk of escape was the condition of the adjoining golf course, which the defendant had no control over. Similarly it was submitted that each of the properties between the Tip and the plaintiff had fuel which permitted the fire to burn.
There was a substantial amount of grass in the golf course adjacent to the Tip, and if a fire got into that golf course it would have a lot of fuel to burn by the summer of 2009. Mr Jacob also gave evidence about the amount of fuel in the golf course.
However, the defendant was also in a unique position in that it had the power to issue notices to landowners to address fire risk, requiring fire control measures to be carried out to its satisfaction, including on land owned by the Department of Lands adjacent to the Tip.
There can be little doubt that the plaintiff and the members of the class were vulnerable to harm caused by a bushfire ignited out of the defendant's reserve. The plaintiff correctly submitted that, on the evidence, the plaintiff and the group members had no power or ability to exercise any control over the defendant's maintenance or operation of its landfills, including the management of refuse and vegetation inside landfills. This plainly included the Tip.
The defendant met the issue of vulnerability by submitting that the plaintiff could have protected herself from harm by effecting insurance.
The ability of the plaintiff to obtain insurance may be relevant to whether the defendant owes the plaintiff the duty of care in respect of pure economic loss: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27. The plaintiff correctly submitted that there is no authority to support the proposition that the availability of insurances is a relevant factor in considering whether or not a defendant owes a duty of care with respect of personal injury or property damage: Perre v Apand at [130]:
[130] Whether the plaintiff has purchased, or is able to purchase, insurance is, however, generally not relevant to the issue of vulnerability. In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, I pointed out that courts often wrongly assume that insurance is readily obtainable and that the increased cost of an extension of liability can be spread among customers by adding the cost of premiums to the costs of services or goods. In Caltex Stephen J rejected the contention that the existence of insurance or the more general concept of ''loss spreading'' were valid considerations in determining whether a duty of care existed. I agree with his Honour. They do not assist but rather impede the relevant inquiry. Loss spreading is not synonymous with economic efficiency - which will sometimes be a relevant factor in determining duty. Australian courts, however, have not accepted that loss spreading is the guiding rationale for the law of negligence or that it should be.
[Footnotes omitted].
The defendant's contentions as to vulnerability, however, extended into broader questions as to the relevant relationship between the plaintiff and the defendant and questions as to whether the claim concerns an indeterminate number of people. Thus, it was submitted that the question of vulnerability in fact exposes a "mere idiosyncrasy" because "anyone who happened to be within the path of the fire would be vulnerable to its consequences". It was submitted that the plaintiff is no more vulnerable than the general public who might come into the sector through which the fire moves depending upon the weather.
The defendant also submitted that there was no relevant relationship between the plaintiff and the defendant as the relationship was no different to an indeterminate number of relationships the defendant had with rate payers, residents and those merely temporarily connected to the Tip by the coincidence of the occurrence of the fire and their location at the time of the fire. A duty cannot spring up when a risk comes home - the beneficiary of a duty of care cannot be identified by reference to the fact of him or her suffering harm: the duty must be capable of articulation before the risk arises. It cannot be known in advance where and when harm will be suffered and thus no person can be conclusively eliminated from being owed a duty if there is a chance of a fire spreading sufficiently far in their direction.
The defendant submitted that the question of proximity must be viewed through the prism of the novelty of the case having regard to the distance between the defendant's Tip and the plaintiff, the number of properties laying in between the two including the division of the two areas by the Walla Walla-Jindera Road.
The plaintiff made a number of submissions in reply in relation to the question of relationship and indeterminacy as follows:
1. This indicia is a policy consideration when the duty is to be considered as a novel duty. The spread of fire between landowners does not fall into that category. The claim falls within an accepted range of claims that existed within the common law with respect to suits between landowners arising from the escape of fire. The classic case of a novel fire is the bush fires in Canberra where, when the fire was commenced to be controlled, the relevant authorities did not know who would be affected and the actions resulted in the willingness to allow some properties to burn because that was how the fire was controlled.
2. The plaintiff contended that there was no indeterminacy as the matter concerned those persons who may be or were affected by the fire. In the main, it was submitted, the duty is owed to persons who are down wind of fire, "but it may not be down wind when it finishes".
3. The class does not become indeterminate merely because of its size. As McHugh J said in Perre v Apand at [107]:
Liability is indeterminate only when it cannot be realistically calculated. If both the likely number of claims and the nature of them can be reasonably calculated, it cannot be said that imposing a duty on the defendant will render that person liable ''in an indeterminate amount for an indeterminate time to an indeterminate class''.
I agree with the plaintiff that this feature or factor is not relevant in the current context as the duty claimed, as earlier found, may not be described as novel.
In any event, the liability is not indeterminate and can be realistically calculated by reference to the course of the fire (see the extract from the judgment of McHugh J in Perre v Apand above).
The plaintiff correctly submitted that the test required by s 5B(1)(b) requires the consideration of the combination of the probability and consequences of the risk: see South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [89]. Thus, in circumstances where the consequence of the failure to take precautions against risk are serious and substantial but the obviousness or probability of the risk emerging in such an event is low, the risk is nonetheless "not insignificant" for the purposes of s 5B(1)(b).
I will not repeat the earlier analysis of the issue of reasonable foreseeability and the knowledge held by the defendant. It is sufficient to note that the defendant knew that the failure to take precautions against the risk of a fire escaping from the Tip had significant consequences for person and property. The fact that, as contended by the defendant that previous fires in tips had not caused harm beyond their boundary, thereby indicating a reduced likelihood of occurrence would not properly result in a conclusion that the risk of harm from the failing to take precautions was not insignificant.
The third criteria in s 5B(1) is found in subs (c), namely, the plaintiff must show that a reasonable person in the position of the defendant would have taken "those precautions". The test for satisfaction of that requirement is identified in subs (2).
The plaintiff must show that a reasonable person in a position of the defendant would have taken "those" precautions: s 5B(1)(c). The reference to "those" precautions is a reference to the opening words of s 5B(1), namely "failing to take precautions against a risk of harm".
The plaintiff refers to 10 precautions which she submitted the defendant failed to take against that risk of harm. Those precautions are discussed in significantly greater detail below but it is important to recognise, at this juncture, that the plaintiff correctly submitted that, save for two of the nominated precautions, the defendant had said itself that such precautions were required to manage the risk of fire igniting at or escaping from the Tip. In any event, as I will discuss here and in the following section entitled "Precautions", the evidence reveals that a reasonable person in the defendant's position would have taken those precautions.
The 10 precautions the plaintiff alleged the defendant should have taken, as previously mentioned, in summary, were to:
1. prepare and implement a fire management plan;
2. create and maintain an effective firebreak;
3. consolidate deposited waste into appropriate areas;
4. remove fuel to prevent dangerous build ups;
5. install and maintain fire fighting equipment;
6. undertake inspection and monitoring of the facility during periods of extreme bush fire risk;
7. ensure different kinds of waste are not mixed together;
8. cover waste with cover material on regular basis;
9. manage green waste piles; and
10. manage combustible material to minimise risk of combustion.
The plaintiff also accepted that the defendant did not identify the need to undertake the precautions identified in (e) and (f) above. On the evidence, the remainder of the precautions are steps which the defendant did recognise as being appropriate steps to take to against the risk of harm by fire. I will also find that those steps are reasonable to be taken by a person in the position of the defendant against the risk of harm from, inter alia, the escape of a fire from a tip. (I also consider (f) to be a reasonable precaution but will find no breach of duty demonstrated).
It should be noted that the plaintiff's pleadings regarding the standard of care required vis-à-vis precautions against risk of harm arising from the spread of fire was restricted to (a), (b), (c), (d), (e) and (f). I will nonetheless touch on the remainder.
The reasons for that conclusion will be set out in the discussion of the respective precautions below. The plaintiff's case is that the defendant, having identified the need to take certain precautions, either failed to do so or did so in a manner which was insufficient per se or by a decreasing commitment to the taking of the precaution over time. Again, for reasons I will discuss, there is merit in these submissions.
The tests for satisfaction of the requirements of s 5B(1)(c) are set out in s 5B(2) of the Civil Liability Act. The non-exhaustive list of considerations is:
1. the probability that the harm would occur if care were not taken;
2. the likely seriousness of the harm;
3. the burden of taking precautions to avoid the risk of harm; and
4. the social utility of the activity that creates the risk of harm.
I shall address each such consideration seriatim although, in adopting that approach, it is important to bear in mind that the conclusion reached must represent a synthesis of the factors identified in s 5B(2) together with any other relevant considerations.
The defendant submitted that the probability that harm would occur if care was not taken was low because:
1. Fires were rare and when they occurred they caused no harm because historically they had been contained within tips.
2. The evidence showed there was a comparative difficulty of fires starting by any one of the postulated methods of ignition.
3. It was further submitted that since fire was a possibility anywhere at any time, the relative probability of harm being suffered by a fire starting in the Tip was slight. The golf course had a fuel load at least equal to the Tip as did the properties observed by Mr Walker on his way to the Tip after the fire.
4. The defendant further submitted that the likely seriousness of harm was low since the likelihood was that a fire starting in the Tip would be confined to the Tip.
It is not correct to submit that the probability of harm that would occur if care was not taken was low because fires were rare. The evidence of a previous fire at the Tip would indicate that the probability of occurrence was, historically speaking, that a fire would occur within a five year period. There was also the evidence of a more recent fire at the Henty Tip.
Further, whilst it has been found that the cause of the ignition of the fire could not be established on the balance of probabilities on the evidence, it does not follow that there is evidence as to the comparative difficulty of a fire starting by any one of the postulated methods of ignition.
There was no history of the escape of fire, once a fire ignited. On that basis, the probability of fire escaping, once a fire had commenced in a tip, was, on the evidence, low. However, I accept the submission of the plaintiff that the evidence establishes that, without the exercise of care across landfills and over time, the probability increases. This is consistent with the expert evidence which will be discussed later in this judgment. There are further factors which affect probability which operated on the occurrence of the fire. Those factors include: weather conditions, temperatures, humidity and the existence of dry fuel.
The defendant submitted that given the fire was a possibility at any time the relative probability of harm by a fire starting in the Tip was slight. Reference was made, in this respect, to the equivalent fuel load in the adjoining golf course to that at the Tip. However, the relevant question is whether a reasonable person would have taken precautions against the risk of harm from the escape of fire, having regard to the probability that that harm would occur if care was not taken.
In this sense, the existence of a build-up of fuel overtime which had the potential to ignite increased the probability of harm of ignition and that, if ignited, the fire would escape outside the borders of the Tip. It is those considerations that must inform the reasonable response to the risk of harm. In my view, they would have caused a reasonable person, on the assessment of probability of harm arising at the Tip, to have taken precautions. It is beside the point that the probability of harm that existed in the golf course was the same.
It may also be noted that the defendant's contention proceeds on an assumption that the relative conditions posing this risk of harm (by ignition) were the same in the golf course and the Tip. There was no evidence of the state of the golf course other than the amount of fuel from grass. It is obvious that a tip would manifest different features and therefore a different risk profile than a golf course.
It should also be borne in mind, in this respect, that the senior officers of the defendant who were called to give evidence agreed that the defendant exercised the power conferred under s 124 of the LG Act to give notices to land owners to clear properties of fire risks. This knowledge meant that the defendant regularly considered the risk in consequence of fire in poorly maintained properties.
Whether the precautions, in this case if taken, would have adverted the spread of the fire is a different matter. That will involve a consideration of the question of causation with respect to the escape of fire to which I shall return.
I do not accept the submissions of the defendant as to the likely seriousness of the harm to be low. 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.
The third consideration arising under s 5B(2) is the burden of taking precaution.
The provisions of s 42 of the Civil Liability Act is, as the defendant submitted, a freestanding constraint on the liability of public authorities as addressed separately below. However, s 5B(2)(c) requires the "burden" of taking a precaution to be evaluated in framing the reasonable response.
The provisions of s 5C(a), consistently with common law authority such as Cekan v Haines and Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 ("Refrigerated Roadways") (at [395]), requires wider consideration of the state of affairs of tips in the defendant's control.
Section 5C(a) requires consideration of the burden of taking precautions addressing similar risks for which the defendant may be responsible.
The defendant submitted that no effort had been made by the plaintiff to demonstrate what the cost of suggested responses may be: Harris v Woolworths Ltd [2010] NSWCA 312 at [33]. Further it was submitted that none of the experts called was an expert in the field of tip management so that any prescription they advanced could not be taken as self-evidently "reasonable in all the circumstances".
It is correct that there is a relative paucity of the evidence on the cost of taking precautions although Mr Davies gave evidence that a relatively small investment would need to be undertaken to affect the precautions.
However, there is some substance in the plaintiff's submissions that none of the witnesses called in the proceedings who were officers of the defendant indicated that the precautions were outside the capacity of the defendant, whether that required financial planning or the shifting of resources or otherwise.
The plaintiff submitted that the evidence given by the defendant's employees established that the burden of implementing precautions was insignificant when the risk and seriousness of the harm was considered in the light of the defendant's resources. The defendant referred to no burden being expressed in relation to undertaking the push-up weekly. When Mr Davies was shown evidence of the fire prevention measures the former Council had committed to implement, he confirmed there was nothing to prevent those types of measures being carried out at the Tip. Mr Davies also gave evidence that it would not be a substantial cost to put a bulldozer in the area south of the bund to flatten it out to provide a larger flat area.
Mr Pinnuck admitted that improvement works of around $10,000 at the Tip, which might have been carried out, could have been dealt with in the existing budget allocation. There was also evidence that the Rural Fire Service would have been likely to assist in controlled burns of the fuel in the southern and eastern end of the tip.
The defendant submitted that, by reason of the broad range of its responsibilities and the number of tips controlled by the defendant, any suggested response to the risk needed to be evaluated by reference to the number of tips run by the defendant.
It was submitted that any additional cost for one tip must be allocated to each tip and there was no reason, for example, why the presence of a person to manage the tips could be restricted to daylight hours as fires may start in the night. It was contended fires do not occur only on days of elevated danger. The Tip was not the only public land managed by the defendant.
The defendant also submitted that the finding of a duty, let alone its content, would establish a precedent whereby all councils will owe a duty, which is at large, having an absorbent demand on resources to guard against a risk which infrequently comes home and does not eliminate the risk.
Pitched at that level of generality, I do not consider the submissions of the defendant may be accepted. I do not consider the general activities of the defendant across the breadth of its services and functions are applicable to the present consideration vis-à-vis a burden of the precautions. The words "similar risks of harm" in s 5C(a) direct attention to the risks associated with various activities or functions of the defendant and not simply those activities having similar geographical or physical characteristics; except to the extent those characteristics inform the question of risks. There is no evidence here to suggest, for example, parks represent a similar risk to tips and evidence may suggest the contrary is the case. The 10 tips operated by the defendant are, however, relevant as by their nature they have similar, although not identical, risks.
Overall, the evidence would suggest that, by taking into account the 10 tips, the burden would increase. The evidence does not suggest, however, that when that factor is taken into account, that the precautions pleaded by the plaintiff created a burden that was unusual or unduly onerous (in terms of the defendant's budget as accepted by Messrs Davies and Pinnuck). There is a significant exception.
In the Joint Report, the experts posited that the engagement of a person at the Tip to use fire fighting equipment if a fire broke out would have prevented the spread of the fire. As the defendant pointed out, the fact that a fire may break out at any time, the person or persons would need to be engaged 24 hours per day, 7 days per week. That approach would need to be replicated across 10 tips. In my view, it could not be concluded that such a measure would be a step that a reasonable person in the defendant's position would have taken, either having regard to cost or practicality.
A similar conclusion may be reached with respect to the fire fighting equipment. The evidence does not sustain that the provision of such equipment in each tip operated by the defendant was a step a reasonable person in the defendant's position would have taken. There was no evidence as to cost. It may not be presumed that the cost of such equipment is inexpensive. If it is not reasonable to have a person stationed at each tip then it cannot be reasonable to install fire fighting equipment intended to be used by that person. It may also be noted that all persons attending upon the fire did so equipped with fire fighting equipment which they either supplied themselves or otherwise had been supplied to them.
There are two further broad considerations in this respect which lead to a discussion of social utility. As I will discuss, whatever the social utility of rubbish tips, they constitute, on the evidence, an unnatural and dangerous use of land and it is thereby incumbent on the operators to take the necessary precautions in relation to each of them.
Putting aside momentarily the particular defence arising under s 42 of the Civil Liability Act (to which I will return after considering social utility), insufficient resources can rarely in these circumstances constitute a defence to breach of duty. As Lord Macmillan said in Glasgow Corporation v Muir [1943] AC 448, "[t]hose who engage in operations inherently dangerous must take precautions which are not required of person engaged in the ordinary routine of daily life" (at 456). Here the defendant was responsible for a finite number of tips for which there were generally known and dangerous risks. The precautions required were known.
Further, the plaintiff submitted, in this respect, that the cost, such as it may be, is to be weighed against the probability of the risk of harm occurring and the seriousness of the harm in the event that it occurs. I agree.
Finally there is the question of social utility.
At the time of the fire, the defendant operated 10 waste facilities. There was plainly a significant social utility in maintaining those waste facilities. However, none of the precautions proposed by the plaintiff adversely affected the operation of the Tip such that it removed its social utility: see Price v State of New South Wales [2011] NSWCA 341 at [45].
A further consideration is that the social utility of the Tip needs to be weighed against the risks associated with its operation such that the increased risks of fire would commensurately reduce the social utility of the Tip. I agree with the submission of the plaintiff that there is no social utility in providing a service such as a tip which increased the risk of fire to those same residents who used the Tip because it was not properly maintained.
The defendant submitted that the case concerned the operating conditions of the landfill tip in 2009 that had been used in that way since 1913 under the auspices of local government authorities to service the needs of a small local population which lacked roadside garbage collection. The condition of the Tip had come about over many decades. It was submitted that it was not possible to undo decisions of the past or to wish away the limitations in the site. The Tip was a "necessary evil" and, it was submitted, "the idea, which [was] implicit in the plaintiff's approach, that it was open to the [defendant] to undo a century's worth of dumping is in and of itself unreasonable, if not ludicrous".
With respect to the contention, it must be described as specious. The effect of the contention, when properly understood, is that the defendant could not take adequate measures because its Tip had been in an increasingly dangerous condition since 1913. If that was the fact, then it could only serve to prove the plaintiff's case that the fire was foreseeable as to the escape of the fire and that no sufficient precautions had been taken.
There was a waste management reserve of $69,000 available as at 1 July 2008. The defendant approved expenditure of $25,000 from that reserve in that financial year. However only $18,000 was expended in that year leaving a reserved of $51,000. That $51,000 was expended in the year ending 30 June 2010. Mr Pinnuck gave evidence that the 2010 financial statement indicated the expenditure of the aforementioned sum was allocated to some projects but he did not identify which project, capital or otherwise, the monies were used for in that respect. The budgets for the year ending 30 June 2010 were not in evidence before the Court. Nor was there evidence that the monies were used to meet the cost associated with the fire.
Whilst Mr Davies identified the tips other than the Tip were in greater need of resources, funding for waste management in the yearly budgets was not allocated to particular landfills. That was a matter for the manager of that function to determine each year. In the year 30 June 2008, the defendant spent $23,800 on the Culcairn Waste Facility. As earlier mentioned, Mr Pinnuck accepted that improvement works of around $10,000 might have been carried out at the Tip, as a result of the Rural Fire Service letter of 30 October 2009, and could have been dealt with in the existing budget allocation.
Thus, the case does not concern that identified in Refrigerated Roadways as to whether the defendant should have spent money on some other piece of infrastructure because it is perceived as being of more need but whether the defendant had funds sufficient to meet precautions within its waste budget. I do not accept the submission of the defendant that it had proved that an amount was allocated to waste and it was exhausted in the year of the fire for the reasons given above.
The defendant contended that the Court should, consistently with Refrigerated Roadways (at [40]), come to the view that there can be no issue as to whether the allocation of the funds was of a "principled and careful" prioritisation process. This must be a reference to the taking of measures to reduce the risk of harm by precautions. However, as the plaintiff submitted each year money was allocated to slashing the driveway of the Tip for aesthetic reasons which could have been allocated to spraying or grading. The defendant had earthmoving equipment that could have permitted it to carry out grading.
Nor do I consider the submissions of the plaintiff sought to circumvent the requirement for budget changes to be approved by elected councillors given its submissions were not directed to the general allocation but to the specific allocation for waste management (although I would note in this respect the plaintiff's submission that the defendant was in a strong financial position having regard to its ratio of current assets to current liabilities when compared with the average ratio of NSW Councils would seem to be beside the point).
In doing so, they expressly eschewed giving any opinion as to:
1. whether the Tip was adequately or reasonably managed at the relevant time; and
2. what "should" have been done as opposed to what "might" have been done.
During the course of concurrent evidence, the experts expanded upon the opinions conveyed within the Joint Report, in summary form, as follows:
1. Dr Green opined: "Flame length and fuel load is going to be important under the conditions for fire spread between different areas and in a tip like that then they do vary and you do want to keep the loads down as much as possible and have good separation". He also agreed that grass is a fuel and that it can have greater fuel value if it is not cut.
2. Mr Nystrom identified grass and dry vegetation as a problem as it created "fuel within the tip" which can be uplifted and cause their own fire. He opined that a fuel free distance of "a couple hundred metres" might have prevented a fire within the general waste area spreading outside the Tip. He described this measure of removing combustible matters as "buying time, so that when people are aware from the smoke column that there is a fire, there is time, then, for the emergency service to arrive and try to put out the fire".
3. Mr Crowe described the fuel at the tip as "ideal" for the propagation and spread of fire. He opined: "It's fully cured, if there's been accumulation of thatch from previous year's growth over that period then the quantity of fuel is a lot more than is originally perceived because there's a lot at ground level that is dead fuel and therefore available to burn and, and very volatile, readily ignite with the smallest of ignition".
4. Dr Green accepted "with the reduction of fuel, grass fuel, whether it be by a way of slashing, controlled burning or chemical reduction, the rate and intensity of spread will lessen". He also accepted that there would be little prospect of spotting if the grass was slashed, with no heads and was 6 inches long.
5. Mr Nystrom opined, in light of having seen the Tip itself, that "the thing that is described as being a firebreak is in my opinion not a firebreak, it's really just a track and the reason I say it's just a track is because it doesn't provide a separation between areas that can burn". He also referred to the trees around the firebreak, which would result in leaves and sticks on the land, "they'll add to the risk of a fire passing straight through it regardless of the size of the fire".
6. Dr Green accepted that, in principle, a fire that is running in short grass is a fire that a firebreak is more effective (albeit it may not be totally effective) against than in long grass. Mr Nystrom expressed a similar opinion, noting that "short grass is going to burn substantially more slowly than is tall grass".
7. Ms O'Toole opined that the Tip was not adequately managed and that that led to a risk of fire. In this respect she pointed to the long grass and lack of access. She identified a need for landscaping and commented that the inaccessible parts surrounding the green waste area would contribute to difficulties of access in the event a fire occurred.
8. Ms O'Toole accepted the defendant made an effort to separate the waste. However, in light of the photographs of the Tip, which reveal an open face, evidence of waste not being compacted "and more importantly it's not covered" - she opined that by not covering that waste on a daily basis that it led to a risk of fire.
9. Ms O'Toole also opined, with respect to the need to cover waste, that a "progressive fix" was required. She also opined that the Tip was "too large" and that the defendant should have "been operating a smaller face". She suggested that the defendant "had time over the past couple of years to gradually rehabilitate and, and make the face smaller and more manageable so that the amount of dirt you need to come in to cover wouldn't be so excessive". (It should be noted that Ms O'Toole did not have experience in managing a tip; her background is primarily based in design and addressing risks of fire at tips).
10. Dr Green identified that a function of pushing up putrescible waste was "a fire control" because it is a means of preventing the conditions required for spontaneous combustion arising (as discussed earlier).
11. His overall view was as follows:
The reason I disagree in part is not necessarily from what the other experts have said, it's actually to do with the actual management and what processes were going on to actually ensure that the tip or the risk of fire was being reduced. You've got to couple that with the actual fire loads that were there and the mechanisms by which you could actually get fire starting and progressing. Now, it's difficult to see, we've discussed in great detail I think most of the views on, on how ignition actually occurs. It's difficult to see given that there was continual processing of the general waste, the separation of different types of waste, and the interspersion of non-combustible waste between some of those areas. It means that they were attempting to actually manage that and reduce the risk of fire and that's basically the, the basis for my view.
Having regard to my earlier discussion of factors requiring consideration under s 5B(1), the discussion of the evidence under this heading and some supplementary observations below, I find that a reasonable person in the position of the defendant would have taken the precautions (a), (b), (c) and (d) to avoid the spread of fire, in the event a fire ignited at the Tip.
It should be noted that the defendant raised contentions against the plaintiff's reliance upon the Singe letter. First, the letter was drafted in specific response to a complaint concerning the Henty tip (albeit under the management of the defendant at the time of the fire, it did not make reference to the Tip). Second, the letter predated the amalgamation. Finally, the defendant also noted that there was a fire at Henty in 2006 - notwithstanding the measures attended to in the letter; submitting the measures did not necessarily eradicate the possibility of the fire. It should be noted in this respect that the failure to create an adequate fire management plan was, in fact, the source of many of the failures to take or to adequately take precautions.
Finally, as to the absence of training, relied upon by the plaintiff, the defendant contended the submission "fails for want of evidence as to what [the defendant's employees] would have learnt by training and therefore, what they would have done differently had they been trained".
In all, the evidence reveals, in this respect, that some fire management measures were attempted and/or implemented and others were not. A plan was not prepared but the need for fire safety measures was recognised by the defendant. In light of the evidence and the findings I will make with respect to precautions, I find the defendant, despite evidence of hazard reduction measures being implemented and/or maintained to varying degrees of effectiveness (discussed below), had no or no adequate fire management plan to prevent the ignition or spread of fire.
All four experts agreed that there was a firebreak around the perimeter of the Tip. Mr Nystrom did not consider the cleared area was properly described as a firebreak - it was really a track. He considered the track did not provide sufficient separation of areas "that can burn". It was not wide enough and covered with trees and in consequence sticks and leaves.
The expert summary under the next heading "Causation", with respect to question 8 of the Joint Report, is also confirmatory of the need to reduce fuel to retard the spread of fire and to permit the most effective operation of any firebreak.
The plaintiff submitted that the firebreak "was totally inadequate" and, in light of the evidence that the firebreak was not cleared, that the Court should be satisfied that the firebreak at the Tip was not a firebreak.
The defendant contended that to extent possible a firebreak was maintained.
Whilst the defendant created and maintained a firebreak, the adopted means of maintenance was unsatisfactory for the purposes of hazard reduction. A firebreak must be bare earth, wide and graded. Further, it would appear that the firebreak should be wider, although the defendant submitted this step was limited by physical dimensions of the reserve on which the Tip was located. In light of the evidence above, I accept the plaintiff's submission that the maintenance was deficient for the purpose of maintaining an effective firebreak at the Tip and that insufficient precautions were taken in that respect.
As to specific contamination, Mr Davies said he was aware there was regular contamination of the green waste with the aerosol cans and a range of other materials mixed in with it. Similarly, Mr Mansfield noted that contamination included green waste and scrap metal within the general refuse area. There were also grass clippings in the wrong area and other waste which he would not relocate.
Turning to the supervision of dumping, Mr Mansfield said he could not see people dumping rubbish at the western end of the bund from the hut. However, he also gave evidence that he would periodically inspect the site to ensure there were no issues. This included following some customers to see where they dumped their rubbish.
It is also relevant to note the evidence of Mr Peach. He confirmed a car could not be driven around the discrete piles of rubbish at the Tip and that long dry grass existed between each pile of rubbish.
During the course of the proceedings the plaintiff drew attention to photographs at the Tip in October 2009 which showed a mixing of wastes. It was submitted that that evidence was also confirmed in the Waste Management Strategy reports and the evidence of Messrs Jacob, Peach and Mansfield.
The experts agreed "that the evidence appears to show that some effort was made to separate different types of rubbish into separate areas within the Tip". However, again, no comment was made as its effectiveness.
As to the separation of waste, the defendant contended that the evidence of Messrs Jacob, Peach and Mansfield disclosed that to the extent possible, having regard to the long history of the Tip, the waste was separated.
The only expert that made any significant contribution to the question, as to which there was a short fall in this respect, was Ms O'Toole (Mr Nystrom spoke of the desirability of separation and the adverse implication of not doing so but did not venture an opinion as to the state of the Tip). There was plainly difficulties, in this respect, exacerbated by the reduction in Mr Jacob's work time. There was contamination of waste. This was not an area entirely neglected by the defendant but clearly there management of this issue was deficient. The defendant was, to that extent, in breach of its duty of care.
Further observations were noted by both employees and residents who used the Tip on a regular basis:
1. Mr Jacob gave evidence that there was nothing done to reduce the grass prior to the fire in the 8 years he worked at the Tip, save for the burning of green waste, and specifically referred to the area south of a line between the designated dumping areas for concrete and the tyres (reference was made to photographs).
2. Mr Mansfield gave evidence there was heavy vegetation south of the western end of the bund, and from the concrete to the green waste areas to the netting fence. Further, the grass shown in a photograph looking east on 1 October 2009, was similar to the types of grasses inside the netting fence, including phalaris.. Each of the grasses as he saw them there with the summer coming on grew tall up until the end of spring and then they turned into a dry grass, which was easy to burn. Within the netting fence there was a lot of grass in late Spring that grew in that area because there was nothing stopping it growing and it grew quite tall.
3. Mr Pumpa gave evidence that the Tip had in each year a large amount of grass growing upon it which by mid-December was fully cured. He observed no slashing being undertaken in the tip area for fire suppression.
4. Mr Seidel recalled the Tip was in an appalling state prior to the fire, with often tall grass within the Tip and around the perimeter of the Tip.
5. Mr Hunter recalled on the east side of the Tip there was a swampy area which always had a lot of grass, fallen timber and wind-blown rubbish.
It was also noted that the only area where there was no grass was where vehicular access was required for users at the Tip. Nearly all of the other areas around the tipping areas were inaccessible to vehicles, and certainly inaccessible in terms of slashing the vegetation. Mr Peach gave evidence that a clean-up was required before slashing could occur (as had been done at other tips).
The plaintiff primarily relied upon the evidence of Messrs Davies and Peach, together with photographs of the Tip shown to witnesses throughout the proceedings, to support the submission that the defendant failed to remove fuel and prevent dangerous build-ups in the years prior to the fire.
The defendant contended that, to the extent possible, fuel free zones were created and maintained: there is ample evidence, it was submitted, that it was not practical to slash between the waste by virtue of debris and topographical impediments; in any event slashing would only have left the fuel load on the ground for it to burn when the fire started. Further, to the extent possible the roads were free of fuel and a firebreak was maintained.
The defendant also made reference to the height of the material on the land between Walla Walla and Gerogery and the speed at which the fire moved across properties that were not in the Tip. It was submitted, "that provides a little bit of information… about the general state of the area" and support to the proposition that "the Tip was no worse than any of the other land".
In summary, the expert evidence was that fuel load will be an important factor in the spread of fire. (I also, in this respect, again refer to evidence of experts in the Joint Report at question 8, discussed below under "Causation"). The removal of combustible material including the cured grass will retard the expansion of fire and permit a greater opportunity for intervention of fire crews. There was evidence as to the difficulties of slashing in the Tip due to the state of the land but there was no evidence to the effect that slashing was not possible or attempts to slash was ineffective. The evidence was that the defendant made no real attempt to reduce fuel as the Tip including by chemical means. There was a significant failure to take a reasonable fire precaution, in this respect, in accordance with the defendant's duty of care.
Ms O'Toole opined that the real problem lay in the size of the face of the Tip, which required reduction so that it could be properly covered.
Mr Davies also stated there was nothing done to make it safer to burn the green waste. He also conceded that the green waste location was "not a fantastic situation".
In my view, the defendant recognised and, to the extent possible, dealt with green waste by an annual burn off. The issues raised by the Rural Fire Service did not affect the burn off of green waste in 2009. Attention was directed to the need to take remedial steps in the following year. I do not consider the plaintiff has demonstrated a failure of the defendant to take or adequately take a reasonable precaution in this respect.
Further, it was contended by the plaintiff that "[p]hotographs taken after the fire show a representation of the terrain underneath the long grass and vegetation before the fire, and illustrate the work required of a bulldozer if employed prior to the fire to flatten the ground on the southern side".
As previously stated, the defendant relied upon the evidence of the defendant's employees as discussed under this and the preceding headings.
I consider the defendant knew that the pushing up and compaction of waste was relevant to the matter of fire risk at the time and that by reducing Mr Jacob's hours had the effect on increasing the risk of fire outbreak. There was a precaution taken but it was inadequate.
As earlier mentioned the experts gave concurrent evidence and the parties formulated questions for that concurrent evidence, which are annexed to this judgment (see Annexure E). Each question correlated with the corresponding question within the Joint Report. No question was raised by the Court or the counsel as to question 6 or 7.
It is convenient to repeat the question which corresponded to question 8 of the Joint Report. That question was:
Explain how each reasonable fire precaution identified in A6 would or may have reduced the risk of ignition and/or spread of fire at the Tip.
No question was directly put by senior counsel for the plaintiff as to the opinion of the experts in the Joint Report in answer to question 8 but questions were asked which were referrable to the question formulated for the concurrent evidence. Senior counsel for the defendant asked only two questions of Mr Nystrom in this respect. First, whether the opinion expressed in answer to question 8 were opinions he formed as part of the Joint Report. Secondly, whether he adhered to that view in his concurrent evidence. He gave an affirmative answer to both questions.
The following is a summary of evidence given in the course of the examination of the experts by the plaintiff's senior counsel as to concurrent question 8:
1. Dr Green agreed that the reduction of grass fuel by slashing, controlled burning or chemical reduction would lessen the rate and intensity of the spread of fire. That step would also lessen the prospect of spotting.
2. Dr Green gave the following evidence in cross-examination by the senior counsel for the plaintiff:
1. If a fire is running in short grass, a firebreak will be more effective particularly if it is clear.
2. Shorter grass will not eliminate spotting but it will reduce it and make a firebreak more effective.
3. The effectiveness of a firebreak will depend on the flame length above the fire because "if you've got flame length that effectively goes across that gap for any reason then you get pre-heating and the fire takes off more rapidly than it would than if there was no flame there and a single point of connection".
4. The use of cells to store rubbish rather than a bund reduces the fire risk.
5. Fuel reduction and firebreaks will limit the spread of fire depending upon their quality.
6. If fuel is reduced by cutting grass, then there is a dramatic decrease in the opportunity for the fire to cross a firebreak, irrespective of wind strength because the source of spotting has been removed.
1. Ms O'Toole gave evidence that in designing a tip what was first and foremost in stopping or inhibiting the spread of fire was a firebreak. Also important is limiting the tipping area and the segregation of waste.
2. Mr Nystrom stated that short grass is going to burn substantially more slowly than tall grass. A firebreak is an effective tool. He considered the firebreak on the southern side of the Tip was ineffective because there were trees over the firebreak dropping timbers, leaves and bark. A firebreak should be ideally 10 metres and would be clear.
3. In the further questions raised with respect to question 4, Dr Green indicated an answer to question 4(a) that the degree to which incombustible material between fuel centres inhibits fire spread very much depends upon the weather conditions and fuel loads. The larger the fuel load, the higher the flames. The spread of incombustible material will influence the spread of fire, particularly under windy conditions. There are variations but there is connectivity between fuel and extreme conditions such as strong winds.
4. Mr Crowe expressed the view that the question of fuel needed to be looked at both in terms of its quantity and its arrangement.
5. As to the second question under paragraph 4(b), Mr Crowe indicated that he did not know the answer to the question of how long did it take for the fire to propagate under the influence of wind. That question depended upon the quantity and arrangement of fuel and the connectivity to which Dr Green had referred. Dr Green indicated that flame spread is really dependent upon the flame length and how close that flame is to the ground. As wind increased, flame tilts towards the ground and, in the result, the radiation flux hitting the front of the flame front increases and the fire spreads more quickly.
6. Mr Nystrom was of the view that under the influence of wind the fire was able to escape in about 20 minutes. Dr Green indicated that if the fire was travelling up-hill it would travel much more quickly. Mr Crowe also indicated that the period of propagation was dependent upon the nature, arrangement and quantity of the fuels.
Senior counsel for the defendant correctly submitted, in my view, that the effect of the evidence of the experts as to the question of causation that the fire "might have bought sufficient time for the fire fighters to intervene" was as follows:
1. There is nothing probable about the eventuality;
2. All that the proposition entails is that the risk of spread might have been lower in circumstances;
3. It was not more probable than not that any action on the part of the defendant would have arrested the spread of the fire.
Further, there is nothing in the totality of the evidence before the Court which would warrant a different conclusion. As I have earlier found, Mr Grosse was the first to arrive at the fire. He found that, at that time (about 1.45pm), the fire had already travelled through the perimeter fence of the Tip on the southern side and was moving quickly towards Walla Walla-Jindera Road. There was very tall grass within the dumping area and in the grass area outside the perimeter of the Tip. Mr Grosse abandoned the fire fight at the Tip due to the topographical and access difficulties. He moved to fight the fire from a different vantage point. However, the fire advanced sufficiently rapidly across the golf course. He retreated the Walla Walla-Jindera Road. By the time he reached that location the fire had already jumped the road.
Mr Grosse was questioned as to whether he first entered the golf course before travelling to Walla Walla-Jindera Road. It appears that he may have momentarily done so and moved on because the fire had "raced up" and "beat" Captain Jacob and himself. He and Captain Jacob travelled to the road, but again the fire had already crossed. The total time from cutting the bolts to the gate until the fire jumped the road was 10 to 15 minutes.
It follows that the submission by the defendant that the evidence of Mr Grosse supports or is consistent with the opinion of the experts must be accepted. The earliest person to arrive at the Tip to fight the fire was too late to prevent the escape of the fire and, in the result, it cannot be found, on the balance of probabilities, that the fire may have been stopped by the measures taken.
It is true that the evidence reveals that by the various measures the risk of the spread of the fire might have been lower in the circumstances but it is another matter altogether to say that the progress of the fire may have been slowed to such an extent as to meet the time of the arrival of the first fire fighter who could have arrested the fire at the Tip.
This conclusion is a fortiori when regard is had to the fact that, as I have found, both the location of the commencement and the cause of the fire is unknown. That consideration has an additional, significant adverse impact upon any finding of factual causation in favour of the plaintiff as 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.
Overall, as to the claim based on the escape or spread of the fire, I find 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. The plaintiff has, however, failed to prove causation, namely, that the negligence established caused the harm suffered by the plaintiff or, to use the language of s 5D(1)(a), that the negligence was a necessary condition of the occurrence of the harm.
The plaintiff case on this aspect of her claim must fail.
In considering nuisance and whether or not an occupier has wrongfully interfered with another's enjoyment of land, the test to apply is what is reasonable in the circumstances, having regard to the ordinary uses of a particular society: Gales Holdings Pty Ltd at [132], citing Elston v Dore (1982) 149 CLR 480 at 487-488. In this respect, while negligence is not essential in the determination of nuisance, fault of some kind is almost always necessary: Gales Holdings Pty Ltd at [139].
It is the foreseeability test for remoteness which applies in nuisance as it does in negligence in order to assist in determining the amount of damages that may be awarded: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 ("Wagon Mound (No 2")).
The test of whether an interference is unreasonable is objective: Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 at [247]. In determining whether or not an interference is unreasonable, the court balances the desire of the owner or occupier to use and enjoy property rights without interference against the desire of others to undertake the activity that causes the interference (see Directors of St Helen's Smelting Co v Tipping (1865) 11 ER 1483, per Lord Westbury LC at 650-651; Southern Properties at [119]), perhaps limited by the foreseeability of the harm likely to be caused by the interference as a measure of reasonableness: see The Wagon Mound (No 2) at 640, cited in Stockwell v State of Victoria [2001] VSC 497 at [608]-[609] (per Gillard J). It is not the conduct of the defendant that causes the interference that must be unreasonable, but rather the interference with the Plaintiff's use or enjoyment of their property.
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.
In accordance with the reasoning of Webster J in Department of Transport v North West Water Authority [1984] AC 336 at 344, in the absence of negligence, the defendant is not liable in nuisance.
Further, in Warragamba Winery Pty Ltd, the Court said (at [673]):
[673] I have noted that the plaintiffs have sued in nuisance in the alternative to their other counts. In Fleming at 403 the authors note that many cases concerning fire damage have included claims for nuisance but that the common response of courts in such cases has been that such a claim cannot succeed without proof of negligence...