Weber v Greater Hume Shire Council

BACKGROUND AND GEOGRAPHY OF THE TIP

1. 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).
2. The defendant has a general function to provide services to the community including waste management services (s 24 of the LG Act).
3. 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.
4. 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.
5. 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").
6. 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.
7. 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").
8. 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.
9. 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.
10. There was also swampy depression within the eastern region of the Tip that extended west from the adjoining golf course.
11. 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.
12. 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.
13. 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.
14. 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").
15. 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.
16. 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.
17. I will now turn to the internal layout of the Tip, with reference to Annexure B.
18. 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.
19. 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.
20. 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.
21. 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.

Weather Conditions

1. 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.
2. 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.
3. 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).

Observations and Response of Residents and Fire Authorities

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The Fire Path

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The Representative Proceedings

1. 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.
2. 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.

THE PLEADINGS

1. 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.

Introduction

1. 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.
2. 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".
3. 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.

Duty of Care

1. 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)
2. 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.

Standard of Care

1. 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.
2. 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.

Breach of duty

1. 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).

Causation

1. The plaintiff contends that the fire was caused by a Tip Management Breach.

Loss and damage

1. As a result of one or more of the aforementioned Tip Management Failures the plaintiff submitted that substantial loss and damage was suffered.

Nuisance

1. 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.
2. 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.
3. In respect of the claim of nuisance, the defendant either denied or otherwise did not admit paras 22-26 of the plaintiff's pleading.

Common Questions

1. 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.
2. 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.
3. 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.

Relief

1. The plaintiff sought relief in the form of damages, costs, interest and such further or other orders as the Court thinks fit.
2. 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.
3. 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.

NEGLIGENCE: IGNITION OF THE FIRE AT THE TIP

1. 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.

Relevant Legislation on Causation

1. 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.
2. 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.

Relevant Authority on Causation

1. 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".
2. 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.
3. 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.
4. 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.

Evidence: Point Of Origin and Cause of the Fire

1. 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.

Expert Evidence

1. 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.
2. 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.
3. 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).
4. 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).

Origin of the Fire

1. 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.
2. 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.
3. 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.
4. 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.
5. 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).
6. 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).

Expert Evidence

1. 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.

Dry Lightning

1. 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".
2. "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.
3. 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.
4. 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.
5. 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".
6. I shall consider each factor in turn.
7. 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).

Spontaneous Combustion

1. 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)).
2. 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.
3. 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.
4. 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.
5. 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.

Residual Burn

1. 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.
2. 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.
3. The material before the Court cannot sustain the theory of residual burn as a cause of the fire.

Deliberate Ignition

1. 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).
2. 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.
3. The evidence before the Court cannot sustain deliberate ignition as a cause.

Glass and Batteries

1. 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".
2. 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").
3. 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.
4. Ignition of the fire by glass or batteries was not established on the evidence.

Conclusion: Origin of the Fire

1. 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.

Conclusion: Factual causation - Ignition of the Fire

1. The plaintiff has failed to establish the cause of the fire. The plaintiff cannot, therefore, prove that the fire was caused in breach of any duty owed by the defendant to her (or the other group members).
2. 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.
3. Hence, the plaintiff's case on this aspect of the claim, vis-à-vis pleadings concerning the ignition of the fire, must fail.
4. 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.

The Plaintiff

1. 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".

The Defendant

1. 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.

Legal Principles: Duty of Care

1. 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.
2. 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).
3. The proper resolution of the (alternative) action on negligence depends upon the existence (and scope) of the relevant duty of care: Dederer at [18].
4. 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]).
5. 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.
6. 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".
7. 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).
8. 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.

The existence and scope of Duty of Care

1. 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.
2. 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]).
3. 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.
4. 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.
5. 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.

Conclusion regarding Duty of Care

1. 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.
2. 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).

The Plaintiff

1. 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.

The Defendant

1. 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.

Relevant Legislation on Breach

1. 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.

The Application of ss 5B and 5C

1. Section 5B of the Civil Liability Act governs the assessment of breach.
2. 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".
3. 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.
4. 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.
5. 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].
6. 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.

Statutory Defence: s 42

1. The defendant raised a defence under s 42 of the Civil Liability Act.
2. 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].
3. 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]).
4. 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)).
5. 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.
6. 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.
7. 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.

Preliminary observations regarding the operation of s 5B

1. 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.
2. 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.

Precautions

1. 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.

Further considerations regarding s 5B: Expert opinion as to whether the precautions were reasonable fire precaution measures

1. 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.
2. 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

Did the defendant take the precautions against the risk of harm?

1. I now turn to the evidence with respect to each of the precautions pleaded and as considered within the parties' respective submissions.

Prepare and implement a fire management plan

1. 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.
2. 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.
3. 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.
4. Mr Davies confirmed that he relied on Rural Fire Service to tell him what was needed.
5. 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.
6. 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.
7. 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.

Create and maintain an effective firebreak

1. 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.
2. 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.

Consolidate deposited waste into appropriate areas

1. 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.
2. 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.
3. 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.
4. As previously mentioned, identification of each area was determined by appearance and was generally separated by approximately 10 metres.
5. 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.
6. 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".

Remove fuel to prevent dangerous build ups

1. 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.
2. 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.
3. 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.
4. 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.
5. Mr Peach also recalled that the grass was very dry on 17 December 2009 (when he went and saw the fire).
6. 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.

Install and maintain fire fighting equipment

1. 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.
2. No further submission was advanced by the plaintiff in this respect.
3. 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.

Undertake inspection and monitoring of the facility during periods of extreme bush fire risk

1. 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.

Other Precautions

1. 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.

Ensure different kinds of waste are not mixed together

1. This precaution, as pleaded, goes to ignition but the evidence overlaps with the above discussion at "Consolidate deposited waste into appropriate areas".

Cover waste with cover material on regular basis

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Manage green waste piles

1. 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.
2. 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.
3. 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.
4. 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.
5. 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".

Manage combustible material to minimise risk of combustion

1. 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).
2. 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".
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. In this respect the plaintiff also relied upon the above stated concession of Mr Davies with respect to the Crawford and Singe letters.

Discouraging Intruders

1. 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.

Conclusion: Breach of Duty

1. 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.
2. 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.
3. 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.
4. 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.

The Plaintiff

1. 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.

The Defendant

1. 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.

Expert Evidence

1. 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.

Conclusion: Causation - Escape of the Fire from the Tip

1. 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.
2. 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].
3. 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. .
4. 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.

General Principles

1. 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].
2. 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).
3. 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.
4. 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].
5. 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).

Statutory Authority

1. The defendant succinctly and correctly set out the relevant authority in nuisance, with respect to statutory authorities. The following derives from that analysis.
2. 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.
3. 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."
4. 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..."

The Plaintiff

1. 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".

The Defendant

1. 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".

Conclusion: Nuisance

1. 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.

SECTION 43A OF THE CIVIL LIABILITY ACT

1. In the circumstances, it is unnecessary to consider the defence raised by the defendant under s 43A of the Civil Liability Act.

CONCLUSION

1. 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.
2. 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.

ORDERS

1. 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.

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