Woodhouse v Fitzgerald and McCoy

Solicitors: Blaxland Mawson & Rose (Plaintiff) Holman Webb (1st & 2nd Defendants) File Number(s): 2018/00249544

Judgment

1. Mr Woodhouse owns the Berridale farming property, "Myack", where his mother and sister lived in September 2012 when it was extensively damaged by fire, including its over 100 year old homestead. In the days before the fire, snow was lying on the ground, but 5 September was a day of unseasonable high fire danger which resulted in a total fire ban. The unusual weather conditions that day included temperatures of up to 19 degrees, low humidity and winds measured nearby at Cooma, at over 100kph.
2. Mr Woodhouse claims that the fire started on the adjoining property, "Doran". Mr Fitzgerald and Ms McCoy had bought Doran in 2011 with weed eradication notices relating to two types of noxious weeds attached to the sale contract. Mr Woodhouse's case is that it was the result of negligence during and after a controlled burn conducted there in August 2012 by the Rural Fire Service to eradicate those weeds, that Myack was burned. He contends that an old hollow tree left standing on a ridge near the boundary of Doran was not fully extinguished and reignited on 5 September, the high winds driving the resulting grass fire into Myack.
3. Mr Woodhouse claims that as the owners of Doran, Mr Fitzgerald and Ms McCoy were responsible for the damage caused to Myack, even though they were not present either during the burn they had arranged for the RFS to conduct, or on 5 September when the RFS attended and extinguished the blaze.
4. Mr Woodhouse seeks damages in negligence and nuisance from Mr Fitzgerald and Ms McCoy. His case is that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack. That duty was breached when the fires lit during the burn were not properly extinguished and later reignited. This also constituted a nuisance for which they are also liable.
5. The claims are defended. Mr Fitzgerald and Ms McCoy deny that the duty which they owed Mr Woodhouse was non-delegable; that there was any negligence on their part; or that they have any responsibility for any negligence on the part of the RFS. They also deny the nuisance claim.
6. Mr Fitzgerald and Ms McCoy also allege contributory negligence on Mr Woodhouse's part, which he denies.
7. Mr Woodhouse claims that as a result of the fire he suffered losses amounting to some $1,150,000. The amount of his damage was in issue, as was whether he had established that he was the owner of the contents of the homestead, where his sister and mother had lived, or the cost of rebuilding the homestead.
8. The parties' liability experts finally agreed on the quantum of various of the damages Mr Woodhouse claimed he had suffered. Issues remained as to the ownership of the contents of the homestead and the basis upon which the agreed assessment of the cost of rebuilding the homestead rested.
9. The RFS has not been joined as a party to the proceedings.

Issues

1. At the commencement of the hearing what was in issue was identified in mfi 1 to be: 1. Whether Mr Fitzgerald and Ms McCoy owed Mr Woodhouse a non-delegable duty of care to prevent the foreseeable risk of harm arising from the spread of fire onto Myack, if the controlled burn on Doran was not fully extinguished; 2. The content and scope of that duty; 3. Whether they had breached their duty, by failing to take reasonable precautions against the risk of fire spreading to Myack; 4. Whether, if negligence was established, the evidence established that the RFS was a concurrent wrongdoer: ss 34 and 35 Civil Liability Act 2002 (NSW); 5. Whether the fire constituted an act of nuisance which could have been avoided by them taking reasonable care; 6. Whether the fire caused the claimed damage; 7. Whether the quantum of the claimed damage was established; and 8. Whether contributory negligence was established.
2. During the hearing there were also issues about: 1. Whether Mr Woodhouse should be granted leave to lead further evidence; 2. The origin of the fire; 3. The adequacy of the fire investigation; 4. The admissibility of various evidence, including reports of the liability experts' and Professor Adams.
3. Many of the facts were not, however, in issue. In the defence closing submissions 94 factual findings were sought. Not all of those findings were in truth factual and some remained in dispute. The main areas in dispute between the parties were also there identified to be: 1. whether the duty owed by the defendants was non-delegable and, if so, the effect of section 5Q of the Civil Liability Act; 2. whether there was, in any event, any breach of the duty owed; 3. whether the defendants can be liable for any negligence on the part of the RFS; 4. causation; 5. whether the proportionate liability regime in Part IV of the Civil Liability Act applies; 6. whether the defendants are liable in nuisance; and 7. quantum.

Undisputed facts

1. It is convenient to begin with what was finally not controversial. I find that: 1. Mr Fitzgerald and Ms McCoy were not experienced in running a country property, Mr Fitzgerald having long worked as a pilot and Ms McCoy as a nurse. In September 2012 they did not live on the property, where they intended eventually to retire. They were then living in Brisbane and staying in a unit which they owned in Berridale, where Ms McCoy worked on occasions. 2. In July 2012 Mr Fitzgerald and Ms McCoy met with Mr Aitchison, who was then the RFS' operations officer for its Monaro team and the fire control officer for the Snowy River District. What he told them was in issue but they later applied to the RFS for assistance with a "prescribed burn" in which they acknowledged, amongst other things, that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished. 3. Assistance was provided at no cost to Mr Fitzgerald and Ms McCoy by RFS volunteers. They later made a donation to the RFS. 4. The request document also contained an acknowledgment that Mr Fitzgerald and Ms McCoy were responsible for notifying adjoining landowners of the burn. Ms McCoy's handwritten notation was that "local RFS will do", but neither they nor the RFS notified Mr Woodhouse of the burn. He only learned of it afterwards, whereupon he spoke to Mr Aitchison. 5. Mr Fitzgerald and Ms McCoy engaged Mr Suthern, an RFS member, at Mr Aitchison's suggestion, to put in control lines for the burn with his bulldozer. 6. A map of Doran was prepared by Mr Knowles, a neighbour and the captain of the Berridale brigade which undertook the burn. It showed the control lines Mr Suthern had installed on 14 and 15 August for the burn. Mr Fitzgerald and Ms McCoy had no input into Mr Suthern's decisions about the control lines and did not oversee or inspect what he did. 7. The RFS had planned to conduct the burn in two stages on 20 and 21 August, but heavy rain delayed the second day until 28 August. Mr Aitchison was not present during the burn and did not see what had been done until 5 September. It was Mr Knowles who was in charge during the burn and also undertook post burn inspections. 8. In total over 550 acres of Doran was burnt by an RFS crew of 7, using 3 tankers and a bulldozer operated by Mr Suthern. The area burnt included the area close to the border of Myack later identified by the RFS as the source of the 5 September fire. That area was burnt on 20 August, but left standing on a ridge was the old hollow gum tree which the experts agreed was still smouldering on 5 September. There was no discussion between RFS members before or after the burn, about knocking over that tree, unlike others which had been knocked over. 9. But Mr Knowles identified the tree as a source of potential risk and inspected it after the burn. He patrolled the burn site on 23, 25 and 31 August and 3 September. Mr Knowles identified some smouldering logs which were put out during his patrols, but he did not inspect the tree on each of these days. 10. Mr Suthern drove daily down a public road which cut through Doran, from which he could see what had been burnt, but he did not go onto the property. 11. It was on 31 August that Mr Knowles signed an "agricultural burns checklist", to which the containment line map was attached. Under the heading "Patrol" the list recorded that Mr Fitzgerald and Ms McCoy were absentee owners; that they were not to monitor and patrol; that the handover time was "when deemed safe"; and that the site was "black, cold & safe - 1 inch snow on whole burn site". But there was no contact made with Mr Fitzgerald and Ms McCoy about the burn until after the 5 September fire and they were not given a copy of the checklist until later. 12. Notes on the checklist referred to brigade discussions on 13 August about the request for assistance. It was noted that the landholder was to liaise with Mr Suthern to construct fire breaks determined by the brigade captain; that wet ground was a consideration; and that the "biggest concern" was smoke into the town from the burn likely to be highly visible from Berridale and likely to result in numerous phone calls. 13. Neither Mr Fitzgerald nor Ms McCoy were present during the August burn, or on 5 September. Ms McCoy received a text message from a friend who advised her that the burn had started on 20 August and was told by Mrs Suthern on 27 August, that it would be completed the next day. 14. Mr Fitzgerald went to Doran on 2 September to spot spray weeds. He went to a high knoll from which he could overlook Doran, but he did not otherwise inspect what had been burnt or take any steps to ensure that nothing was still burning. Nor did he discuss with the RFS what had been done, or still remained to be done. 15. On 3 September Mr Knowles found no evidence of any ongoing fire risk when he drove across all the containment lines in a 4 wheel drive. He saw nothing that day which caused him to have any concern about the hollow tree on the border of Myack, which he had earlier inspected and found "benign" but he did not inspect the tree again that day. On 5 September, he did not inspect it until after the Myack fire was extinguished. 16. On 5 September no steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual conditions which prevailed that day, either by Mr Fitzgerald and Ms McCoy, or the RFS. While the RFS was undoubtedly aware of those conditions, Mr Fitzgerald and Ms McCoy were not monitoring the weather or Doran. 17. It was Mr Knowles who, from his own property, first saw smoke coming from the vicinity of Myack and Doran while keeping a lookout over the countryside from his veranda, using binoculars. He immediately raised the alarm and within minutes turned out with other RFS volunteers to fight the fire, which was already engulfing the Myack homestead when they arrived. 18. Mr Knowles there found that a grove of pine trees and bales of hay upwind from the homestead were contributing to the fire intensity and ember attack on the homestead. The fire was only extinguished after extensive damage was caused to buildings, fixtures and chattels. 19. Mr Woodhouse became aware of the high fire risk prevailing on 5 September that morning, but he did not go to Myack to take any precautions against the risk of the Doran fire reigniting. When he did go, he arrived to find that his mother, who he knew had been alone at the homestead that morning, was no longer there and the RFS was fighting the blaze. 20. After it was extinguished Mr Aitchison, other RFS members and Mr Woodhouse looked for the source of the fire. It was identified to be the hollow tree on Doran. Mr Knowles inspected the tree and found it to be still smouldering. It was then extinguished, Mr Aitchison describing how the base of the tree and the ground blew apart when water was poured onto it and large quantities of steam then coming from the ground. The site was then secured for investigation. 21. Later RFS and police investigations identified the tree as the source of the fire.
2. It is convenient next to turn to evidentiary issues.

Why leave to lead Mr Woodhouse's further affidavit was refused

1. In the week preceding the hearing Campbell J dealt with a late application for leave to amend the statement of claim, to address the case Mr Woodhouse sought to advance in respect of the RFS and its involvement in the burn and subsequent monitoring of Doran: Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257. His case then was that he had no more evidence to lead, despite the proposed amendment. Leave was granted.
2. Despite this, shortly before Mr Woodhouse was to give his evidence the following week, a further application for leave was made, on this occasion to call oral evidence from him about his claimed ownership of the contents of the homestead, which was in issue.
3. That application followed the service of the written defence submissions, filed on 20 March, where attention had been drawn to the absence of any evidence establishing Mr Woodhouse's ownership of the contents of the homestead.
4. This belated application was opposed and refused, for the following reasons.
5. Mr Woodhouse had been ordered to serve his lay and expert evidence by December 2018. His affidavit was sworn in February 2019. No prior notice had been given of the application to lead further oral evidence from him at the 2020 hearing, nor had any advice been given of what evidence was proposed to be called, let alone any explanation for the failure to lead that evidence earlier, as had been ordered. This was despite an expert's report having been served on the question of the amount of the losses Mr Woodhouse claimed he had suffered, to which was annexed an itemised inventory of the contents of the homestead.
6. Given the obligations imposed by the Civil Procedure Act 2005 (NSW), litigation by ambush and surprise, cannot be permitted. The relevant considerations included what s 58 required as to the dictates of justice being observed and the Court's duty to have regard to the overriding purpose specified in s 56, namely, the just, quick and cheap resolution of the real issues in the proceedings, in the exercise of its discretions. I was satisfied that they precluded the leave sought being granted.
7. Overnight an affidavit sworn by Mr Woodhouse on 24 March was served. It, too, was objected to.
8. Leave to lead that further evidence was also refused. That was because firstly, there was no explanation for the late attempt to lead evidence on this topic, despite Mr Froeschl's expert's report having annexed to it the inventory of the contents of the homestead and their claimed value, to which Mr Woodhouse referred in the affidavit.
9. Secondly, there was no explanation of who had prepared that index in either Mr Woodhouse's original affidavit, or that sworn on 24 March. That it had not been prepared by he alone could sensibly be inferred from the fact that the inventory included lists of personal belongings kept in the home which Mr Woodhouse's mother and his sister, Ms Burling, shared in 2012. They included items such as the contents of bathroom cabinets including hair dryers and curling wands and gifts, jewellery, hats and scarves, kept in various cupboards.
10. When the liability report was later tendered it emerged from an annexed February 2019 report of LMI group with which Mr Froeschl had been instructed that an attached schedule had been prepared by Mr Woodhouse and his mother shortly after the fire, which had regard to enquiries which they had made at many unidentified retailers. But this was not referred to when the application for leave was pressed.
11. What was then apparent, however, was that the inventory itself did not establish Mr Woodhouse's ownership of the contents of the homestead, as his disputed affidavit acknowledged.
12. By way of annexure to the disputed affidavit, Mr Woodhouse had identified personal items in the inventory which he conceded did not belong to him. Still, without explanation, he continued to claim ownership of other similar items, even his mother's purse and the money and cards which it contained. Why that was so, was also not explained.
13. Mr Woodhouse did explain that his claimed ownership of the contents of the homestead rested on the transfer of the property to him in 1992, as part of a "farm succession plan" between him, his brother and his mother. But no mention was made of his sister, who lived at Myack with his mother, her part in the succession plan, or even of her belongings. It was certainly not conceivable that Ms Burling owned none of the contents of the homestead, her home, when it was destroyed.
14. Further, all that Mr Woodhouse revealed about the claimed agreement with his mother and brother was that the plan provided that his brother would receive all of the livestock, plant and equipment of his mother's farming business and that he would get "Myack". He and his mother having agreed that "Myack" included not only the homestead, but also its contents.
15. While Mr Woodhouse said nothing about his sister's possessions, he acknowledged that as well as the contents of the homestead he claimed he had acquired in 1992, in 2012 the contents included his mother's clothing, jewellery and personal affects, which he conceded did not belong to him. He also said that he kept unidentified items of furniture, clothing and appliances at the homestead, rather than at his own home.
16. It followed that this affidavit could not conceivably provide a basis for the conclusion that, at the time of the fire in 2012, Mr Woodhouse, whose mother was then still alive and living at Myack with his sister, owned all of the contents of the homestead, as he had claimed and originally advanced by way of the expert's report. So much was conceded. But nor could it establish that he owned all of the other contents he still claimed ownership of.
17. In so far as Mr Woodhouse's claimed ownership of the contents of the homestead rested on a "farm succession plan", that can only have been an agreement, part oral and part evidenced by the transfer of title in Myack to Mr Woodhouse in 1992. But in the affidavit he simply did not attempt to give evidence about the matters which had to be addressed, if the existence of such an agreement, or its terms, were to be established.
18. Those matters were discussed by Sackar J in Quijiao Liu & Anor v Yuqing Xiao & Ors [2020] NSWSC 289 at [82]-[91]. What was required was evidence, not only of the circumstances in which the agreement had been made, but also the relevant conversations between those claimed to have been parties to the agreement, their conduct and any relevant documents: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7].
19. The items in the inventory which Mr Woodhouse still claimed to own included things like his mother's purse and the money and cards it contained, clothing, hair dryers and curlers, gifts, jewellery, photos, cat food, liquor and the contents of a fridge, desks, dressing tables and cupboards, even handcraft materials and washing and cleaning products.
20. Many of these items could not conceivably have been the subject of the claimed 1992 agreement. No other basis of the claimed ownership of these items was revealed. Even the items Mr Woodhouse claimed he had left at the homestead were not identified.
21. Contrary to the case advanced for Mr Woodhouse, this affidavit could not be led over objection simply because it was the "best evidence" of Mr Woodhouse's ownership of those contents of the homestead which he pressed. Given that the affidavit had not attempted to provide evidence about considerations necessary to address to establish his claims, it would have been both a waste of court time and costs for the parties, had the belated leave sought to lead this further evidence been granted.
22. In all of those circumstances, I was satisfied that justice also did not permit leave to lead Mr Woodhouse's disputed affidavit to be granted.

The admissibility of Professor Adams' report

1. The facts in issue that Professor Adams' opinions were relied on to prove were that the 5 September fire was caused by the still smouldering hollow tree left standing on the border of Doran; that this tree was only extinguished by the RFS after the Myack fire had been extinguished; and that it had reignited in the unusual weather conditions which prevailed that morning.
2. Professor Adams had produced two reports. In the first he acknowledged that he had no qualifications in wildfire investigation. He there explained his qualifications as a chemist/biochemist and his experiences at the various universities where he had taught. He also described his other work, including at the University of Western Australia in Natural Resource Management and the development of a Bushfire Cooperative Research Centre (CRC), as well as his work with the Bushfire Research Advisory Group. He also referred to his involvement in the publication of a paper which had been accurate in its prediction of bushfires in 2003, 2006, 2009 and their impacts and his other extensive publications. They included the 2011 book Burning Issues: Sustainability and Management of Australia's Southern Forests published by the CSIRO, which dealt with prescribed burning and a text on fire and forest management.
3. In his second report Professor Adams outlined his work since 2007, when he began research into the effects of fire and grazing on vegetation in the high country; his publications on that topic; his repeated visits since then to the Berridale area; his ongoing long term research trials into the effect of fire in the Snowy Mountains region; the basis of his knowledge of the fuels growing on Doran and Myack; his knowledge of the prevailing climate, based on his experiences in the area; as well as his familiarity with the drivers of bushfire and the physical science behind fires. Professor Adams also referred to his contribution to chapters in various books and other publications on bushfire and controlled fire, as well as his own experience as a landowner.
4. In the concurrent evidence Professor Adams explained that in his book he provided a history of fire; an analysis and description of fire behaviour, including fuels and climate; an analysis of climate change; the implications of fires with water and carbon; biodiversity and an analysis of hazard reduction and fuel reduction burning, designed for the well informed lay person to read. He had also there forecast the recent fire events in NSW and Victoria, but the book did not examine fire investigation.
5. There was no issue that Professor Adams had specialised knowledge, based on his training, study and experience, or that some of the opinions which he expressed in his reports were based on that specialised knowledge: s 79 Evidence Act. It was his acknowledged lack of expertise in "fire behaviour (eg rate of spread, fire intensity)", to which he referred in his first report, on which the objection to his reports was pressed on the basis of his lack of relevant expertise. And it was also argued that his report was similar to that considered in HG v R (1999) 197 CLR 414; [1999] HCA 2 where it was concluded at [41] that the opinions of the psychologist there in question were "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist."
6. I was satisfied that these objections could not be accepted, the evidence well establishing that Professor Adams had relevant qualifications, training and experience which qualified him to give opinion evidence about the cause of the 5 September fire, given what the subsequent investigations by RFS and police investigators had established. Further, that his reports did not suffer from the deficiencies discussed in HG.
7. Professor Adams had explained that his acknowledged lack of expertise in fire investigation prevented him from expressing opinions on how long it might have taken the fire to reach the Myack homestead, once it had spread from the hollow tree, which in his opinion was the source of the fire. That opinion, however, he explained was based on his knowledge of the geography and climate of the area; his scientific study and practical experience in conducting fire research there; as well as his knowledge of wildfires generally; and of prescribed fire hazard reduction burning, more particularly.
8. I was satisfied that this explanation had to be accepted.
9. As discussed by Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209], s 79 of the Evidence Act assumes that the opinion is tendered to prove the existence of a fact. It is thus necessary to identify why the evidence is relevant, that is, why the evidence, if accepted, can rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding: s 55 Evidence Act as discussed in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [31].
10. As there also discussed, to be admissible under s 79(1), Professor Adams opinions had to satisfy two criteria. First, that he had relevant specialised knowledge based on his training, study or experience. Secondly, his opinions had to be wholly or substantially based on that knowledge: Dasreef at [31] referred to in Nicholls at [209].
11. I was satisfied that the evidence established that Professor Adams had relevant specialised knowledge based on his training, study and experience, which enabled him to express his disputed opinions about the source of the fire. Further, that his opinions were relevant to the resolution of the issue as to its source and finally, that they were wholly or substantially based on his knowledge.
12. Professor Adams had not undertaken the week long course which taught particular internationally accepted techniques based on the 2005 Wildlife Origin & Causes Determination Handbook which Mr Woods considered was necessary in order for reliable opinions to be formed by an investigator about the source of a fire. That was a publication which Mr Woods had helped to develop and there was no issue as to his expertise in wildfire investigation, or his specialised knowledge, which enabled his opinion evidence to be received.
13. But that could not preclude an expert who had the training, study and experience Professor Adams had, from giving opinion evidence about the source of the fire. To the contrary, that training, study and experience well qualified him to give such evidence, given his resulting specialised knowledge about bushfire and its causes, particularly in the region of Australia where this fire occurred.
14. The evidence simply did not establish that the only study, training and experience which could qualify someone to give opinion evidence about the source of the fire here in question, was someone who had undertaken the course on which Mr Woods' opinions rested and had applied the techniques taught in that course.
15. The reports explained why Professor Adams had come to his conclusions, having considered the materials with which he had been instructed. That they supported the conclusions reached in the RFS and police investigations, neither suggested nor established that he had merely parroted those conclusions, rather than himself considering the reports and other materials he had been provided with and by applying his specialised knowledge, to arrive at the opinions which he explained.
16. Accordingly, the overall challenge to Professor Adams relevant expertise had to fail.
17. There were also objections to particular parts of Professor Adams reports, which I concluded were admissible, because I was not satisfied that he had strayed outside his area of expertise and that he had satisfied the requirement to expose his reasoning process: Dasreef at 110.
18. That requirement does not preclude an expert from utilising materials produced by third parties, to assist them in applying their specialised knowledge: Regina v Jung [2006] NSWSC 658 at [57]. That was what Professor Adams did in coming to his conclusions, by making use of documents with which he was instructed, which are in evidence. They included the various statements taken in the police investigations from RFS officers; observations made by the RFS investigator during the investigation into the cause of the fire; and documents which evidenced the steps taken by the RFS before and after the controlled burn and the 5 September fire; as well as photographs taken after the fire.
19. That Professor Adams came to the same conclusion as the investigators did, on the materials to which he referred, which had also led the Coroner to conclude that it was unnecessary to conduct an inquiry into the cause of the fire, did not make the aspects of the report to which objection was taken inadmissible. Even though he had not undertaken the course which Mr Woods considered to be necessary and the investigations had not been undertaken entirely in accordance with the preferred method of investigation, the basis of the opinions Professor Adams expressed were revealed as they needed to be and so I concluded that the disputed parts of his reports were also admissible.

The admissibility of the liability reports

1. The liability experts were not required to give concurrent evidence. They had met and produced a joint report. Only Mr Froeschl's report and the joint report of he and Mr Webb and Mr Gallagher, the defence experts, were tendered.
2. There being no question about the expertise of the defence experts, I was satisfied that both Mr Froeschl's reports and the joint report were admissible, albeit that there were also issues as to whether they provided a reliable basis for any conclusion about the damage Mr Woodhouse claimed he had suffered, to be reached.
3. The defence objection pressed was that Mr Froeschl's report did not establish the relevant characteristics of the homestead; the only evidence offered being the one page builder's quote, which did not establish those characteristics. Further, the report did not establish that he had the necessary specialised knowledge, based on his training study and experience, to express an admissible opinion about construction costs.
4. I was satisfied that the objections could not be accepted.
5. Mr Froeschl's report explained his over 30 years' experience in claims preparation and loss adjusting in the insurance industry for insurers, as a chartered loss adjuster and as a claims preparer for a number of identified companies. He had also worked in catastrophe events, including being seconded to advise the New Zealand Earthquake Commission in the aftermath of the Christchurch earthquake. His experience included quantification of industrial and commercial property; alpine claims, including remote historic assets', alpine lodges and accommodation.
6. Mr Froeschl was a Fellow of various insurance industry bodies and had undertaken various tertiary training in insurance and loss adjusting. His work since 1989 had included loss adjustment in increasingly senior roles, until in 2014 he became the Manager ACT & National Claims Executive for the LMI Group.
7. I was satisfied that this established that Mr Froeschl had relevant specialised knowledge, based on his training, study and experience, which enabled him to express his opinions.
8. Mr Froeschl's 2019 report revealed that he had been instructed with an inventory of the contents of the homestead, which identified that it contained a kitchen, bathroom, lobby, hall, dining room, parlour, 3 bedrooms and a veranda, as well as a schedule of claimed losses and supporting documents. These included a quotation from a builder, Mr Biilmann, for the work of replacing the homestead, at a total cost of $988,780 and reports from the insurer, which included a September 2012 report from structural engineers, Hugill Consulting, about the homestead, which had been built of concrete blocks and bricks and what would be involved in a rebuild.
9. There was also a February 2014 report from LMI Group which explained clean-up work which had already been undertaken, including removal of asbestos from the homestead, as well as work to protect what remained of the structure from weather, to repair the foundation and walls ready for roof work. The roof had then been installed at a total cost of $190,688.50. The builder's invoices were also attached.
10. Mr Biilmann's October 2014 itemised quote was to restore the homestead and "return to original". It did not, however, refer to any plans or instructions as to the work required to be undertaken, to achieve that result. But there were also photographs of the inside and outside of the homestead, before it was destroyed and of what was left standing.
11. Firstly, while undoubtedly Mr Froeschl could have been instructed with more information than he was about the characteristics of the homestead, what he was instructed with was considerably more than a one page builders' quote. Had he considered what he was instructed with to be inadequate, he would undoubtedly have said so.
12. That it was not inadequate was supported by the fact that while the defence experts' reports were not tendered, they were able to agree the cost of reconstruction of the homestead with Mr Froeschl. The inference that their reports would not have supported the complaint advanced by the defence, is supported by the fact that their reports were not tendered: Jones v Dunkel (1959) 101 CLR; [1959] HCA 8.
13. In the result, given all that Mr Froeschl was instructed with, I am satisfied that there was sufficient information provided to the experts, for them to come to conclusions, as they did, about the quantification of Mr Woodhouse's damages.

The origin of the fire

1. The onus which falls on Mr Woodhouse was to establish, on the balance of probabilities, his claim that the 5 September fire spread from Doran, as the result of the failure to take reasonable precautions: s 5D(1)(a) Civil Liability Act.
2. I am satisfied that on all of the evidence, despite the RFS' failure to adhere strictly to all aspects of best practice investigation procedures, Mr Woodhouse has established, on the balance of probabilities, that the fire began in the smouldering tree which reignited on 5 September, in the unusual weather conditions which prevailed that day.
3. Whether it was the branch Mr Aitchison identified, or burning embers blown from the tree which ignited both the end of that branch and the grass which lay downwind from the tree, or both, with the result that the fire was then driven onto Myack, simply does not have to be resolved.
4. I am satisfied that both on the pleaded case and the manner in which it was advanced and resisted at trial, there is no question that the parties joined issue over whether Mr Woodhouse had established that the source of the fire which damaged Myack was the tree which was extinguished on 5 September, whether it was the branch which Mr Aitchison had identified, or embers which had been blown from the tree from which that branch broke, that was the actual source of ignition.
5. To now confine the case in the way for which the defence contended would in my view be "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 referred to in Ingot Capital Investments at [428]. It would also be inconsistent with s 56 of the Civil Procedure Act, which specifies the overriding purpose of the Act to which the Court must seek to give effect, to be "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".

The parties' cases

1. The case Mr Woodhouse pressed was that the source of ignition of the fire was the hollow tree left smouldering after the August burn, which had resulted in either embers or the branch igniting the grass and spreading to Myack.
2. He relied on the evidence of Mr Aitchison, which included that the only relevant fire event in the area that he was aware of, which preceded the Myack fire, was the Doran burn; Mr Knowles' evidence; the conclusions reached in the RFS and police investigations that the origin of the fire was the old tree; the experts' opinions, notwithstanding Mr Woods' reservations, supported as they were by the experiences of lay witnesses.
3. The defence relied on claimed inadequacies in the further amended statement of claim which pleaded, amongst other things, that: 1. The inside and/or root system of an old tree ("the Tree") located on Doran near the boundary between Doran and Myack was ignited during the fire: at [6]. 2. The hollow and/or root system in the Tree thereafter continued to smoulder without being detected and extinguished by the RFS: at [7]. 3. On 31 August 2012, the RFS ceased its operations in relation to the fire, but it had not been fully extinguished, with the result that it continued to smoulder within the hollow and/or root system in the tree: at [8]. 4. On 5 September 2012, embers within the hollow in the tree ignited a branch on the tree, which then blew onto the ground, setting fire to other vegetation: at [9]. 5. The fire spread onto Myack where it destroyed buildings, fixtures and chattels located there: at [10]. 6. The breach of the duty of care pleaded at [14] involved amongst other things, a failure to undertake hazard abatement work in relation to the tree as an unverified source of fire by dousing its hollow with water and/or knocking it down and exposing the roots of the tree.
4. The defence case was that any relief available to Mr Woodhouse was confined to that available on his final pleadings. Further, given his pleaded case, Mr Woodhouse had to establish not only that embers in the hollow or root of the tree had ignited, but that it was a branch of the tree which had been blown onto the ground, which had set fire to other vegetation, which was the ignition source of the fire which burnt Myack: Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors (2008) 73 NSWLR 653; [2008] NSWCA 206 at [412] - [428]. That not having been established, his case had to fail.
5. I am satisfied that this may not be accepted.

The branch

1. As discussed in Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, in resolving whether or not a point was raised at trial no narrow or technical view should be taken and particulars may not be decisive, if the evidence has been allowed to travel beyond them: at [14].
2. In the defence final written submissions the branch lying over the fence on Myack was variously described as being 'largely unburnt" and "pristine", to advance the submission that if it had been the source of the fire, it would have been engulfed by flame. Those descriptions cannot be accepted. The end of the branch, where it broke off from the tree, was burnt and the leaves singed, as Mr Aitchison described.
3. In Professor Adams' first report he concluded that the fire was likely to have been caused by the tree which reignited in the extreme conditions of 5 September, with the result that fire spread quickly to Myack given the generally very dry conditions. It was likely the fire was ignited by the large burning branch which can be seen in photographs in evidence.
4. Mr Woods considered that the source of the fire could not be reliably established, but that the branch was an unlikely source of the fire, given that its leaves had not been burnt. He considered that if that was the case, it would have been engulfed by fire.
5. In the joint report Professor Adams accepted that the branch may not have been the actual source of ignition, but remained of the view that the most likely source of the fire was the tree, it being the likely origin of the branch. His opinion remained that it was the tree and its surrounds, including its root system, which had continued to smoulder undetected since the controlled burn, which resulted in the fire reigniting. Mr Woods did not agree that this had been established.
6. In the concurrent evidence Professor Adams explained why he considered that it was improbable that anything other than the tree had caused the fire. Mr Woods agreed that the tree was a possible source of the fire, but was not satisfied that this had been reliably established given the investigations undertaken and the possibility that the fire had another source, which had not been excluded.
7. Mr Aitchison was of a different view, explaining in cross examination why he adhered to his opinion that the source of the grass fire which had been driven by the wind towards the trees, hay bales and buildings on Myack, was the fire which had been started by the branch. He explained that from his observations from scratch marks which could be seen on the ground made by the tumbling branch, he had come to the view that the large branch had broken off the burning tree and been blown to its resting place over the fence on Myack, where it ignited the grass.
8. Mr Aitchison was cross examined about the shrivelled state of the leaves and the burnt end of the branch, which was lying downwind from the tree on burnt grass, its burnt end facing the tree. He explained that he did not think that the fact that the leaves were not burnt up was inconsistent with the fire having been started by the branch. Given how the branch had been blown from the tree, the leaves having been singed and the branch coming to its resting place on the grass which had caught alight, the result was that the branch had not been completely burnt, because of the speed at which the fire had then been driven into Myack.
9. Mr Bottom was with Mr Aitchison that day and came to a similar conclusion, that the burning branch had broken off the tree and been blown across the fence. So did the RFS and police investigators.
10. While Mr Woodhouse is entitled to rely on this evidence, given how the case was pressed and resisted, including by the expert evidence, establishing that the fire was ignited by the burning branch, is simply not a critical matter on which Mr Woodhouse's case must stand or fall.

How the lay evidence can be used

1. The defence case that no weight could be given to the evidence of Mr Aitchison and Mr Bottom cannot be accepted, given not only their positions in the RFS, but their involvement in fighting the Myack fire and then securing the site of the apparent source of the fire, for later investigation. Their evidence about what they did and observed on 5 September and the information which they provided in the later investigations into the fire was supported by what the photographs depict, as well as by the experts' evidence about the vulnerability of the tree to re-ignition and the behaviour of fire when driven by high winds.
2. That they did not themselves conduct the formal RFS investigation, which the experts agreed had not adhered to all best practice principles, cannot lead to any different conclusion.
3. The same submission was not made in relation to Mr Knowles' evidence. But there was an issue as to what should be made of his evidence. It was Mr Woodhouse's case that his evidence established that the inspections he had made of the tree had not been frequent enough, or of such a character, as to have satisfied the obligation to take reasonable precautions to prevent the fire reigniting and spreading to Myack.
4. The defence contended that because Mr Knowles had not been cross examined to that effect, because that did not form part of the defence case, it was entirely improper for his conduct to be so impugned by Mr Woodhouse.
5. It will be necessary to return to this, but at this point it is sufficient to observe that Mr Knowles' evidence included what he found when he examined the tree on 5 September and what he had done beforehand, in relation to the risk he had identified the tree posed. In summary, his evidence, when considered in light of the expert's opinions and the evidence of other lay witnesses established that on 20 August, the RFS had left the tree standing on the ridge near the border of Myack, in an area burnt that day even though it was still smouldering. That was not detected then, or before 5 September despite inspections of the burn site and the tree, with the result that the tree was not pushed over and extinguished, as other trees had been.
6. Neither Mr Knowles and the other volunteers, nor the RFS are parties to the proceedings. In advancing his case that Mr Fitzgerald and Ms McCoy had breached the duty of care which they owed him, Mr Woodhouse is entitled to rely on evidence which helps establish that reasonable precautions were not taken to prevent the risk of the fire reigniting after the burn and spreading to Myack. That includes evidence given by Mr Knowles and others who undertook the burn, which is relevant to that issue.
7. While Mr Knowles was not cross examined about any negligence, Mr Aitchison was cross examined both about what had emerged from the RFS' later review of the fire and his views about how the burn had been undertaken and later monitored. It was a matter for the defence to elicit opinions from Mr Knowles about this, if that was to be considered relevant.

Consequences of inadequacies in the fire investigation

1. While in the original defence written submissions, the RFS was at one point described as "the acknowledged experts in this field", the case pressed was that because its post fire investigations had not been properly conducted, in accordance with the methods Mr Woods described, the result was that the cause of the Myack fire had not been reliably established, on the evidence led. The defence contended that it had not been established that the Myack fire had begun on Doran, or even that the tree which was extinguished on 5 September had originally been ignited in the August burn. It could have been ignited by whatever caused the 5 September fire, which had not been established.
2. I am satisfied that this may also not be accepted and that Mr Woodhouse has met the onus which fell upon him to establish the cause of the fire, on the balance of probabilities.
3. That Professor Adams and Mr Woods agreed that the RFS' investigation which identified the source of the fire to have been the tree had not been conducted strictly in accordance with the applicable internationally recognised and accepted practices and methodology for fire investigation, must undoubtedly be taken into account in resolving whether the cause of the fire was established. Although it should be observed that Mr Hagan, the investigator, was not cross examined about his investigation methodology.
4. In Mr Woods' opinion this rendered the conclusions reached in that investigation and in the later police investigation unreliable, given concerns which he explained about possible contamination of the site, prejudgement and inadequate attention given to other potential causes of the fire, with the result that the source of the fire had not been established. Logically, on his approach that would also preclude Mr Woodhouse satisfying the onus which fell upon him in these proceedings, to establish its source.
5. I do not accept that this is the case.
6. I am satisfied that it may not be accepted that failures in adhering to the best practice fire investigation methodology Mr Woods explained, make it impossible in proceedings such as this for a plaintiff to meet the onus which must be met, on the balance of probabilities. Were it otherwise, it would mean that before these investigation procedures were established in 2005, a plaintiff could never have met that onus. Nor could it be met now in cases where that investigation methodology is simply not in use.
7. Professor Adams' opinion was that despite the way in which the investigations had been conducted, what had been uncovered established that the likely cause of the fire was the old smouldering tree, as both the RFS and police investigators had concluded.
8. In the joint report Mr Woods explained that in determining the origin of a fire, account had to be taken of weather conditions; fuel conditions; the post fire scene; and what site investigation and witness evidence had shown. He also explained that international wildfire investigation methodology was aimed at ensuring that investigators did not make assumptions about the origin of the fire, but considered and analysed all data collected and tested all the evidence gathered. He explained in detail how the investigation had departed from that methodology and why he thus considered that it followed that the precise origin of this fire could not be confirmed. The investigation material gathered and considered, having in his view, been too limited although he accepted that fire investigation also depended on resource availability and deployment.
9. In the concurrent evidence Mr Woods thus explained that he remained of the view that because of the deficiencies in the investigations he had identified, the cause of the fire could not be reliably established. The point of the investigation processes which he had described being to ensure that investigators did not jump to conclusions. While information provided by persons such as Mr Aitchison and Mr Knowles had to be taken into account, the fire progression across the landscape had to be determined by the investigator following fire pattern indicators, that is, the effects of the fire as it travelled across the landscape. While he had no doubt that Mr Aitchison, a local on the scene, had located the tree and the branch, the investigator had to follow an impartial process.
10. Mr Woods' opinion was not altered by the fact that the RFS investigator Mr Hagan had been trained in the best practice investigation methods which in his view had not been followed, observing that "inevitably" what tends to occur in practice is that the methodology is not followed and conclusions are jumped to by investigators. He took into account that Mr Hagan was likely to have been under time pressure, but still considered the methodology critical for reliable identification of the fire source.
11. Professor Adams disagreed, considering that the conclusions which the investigators had reached to have been reasonable ones, even though the methodology had not been applied precisely. Mr Woods, however, did not accept that it was not inevitable that if this methodology was not followed, that the correct result could not be arrived at.
12. Mr Woods' opinion simply cannot be accepted. Clearly there must be a risk of error if best practice is not adhered to, but it doesn't follow, even as a matter of logic, that error is inevitable in every such case, or that it resulted in this one.
13. What must be considered in determining whether the onus which fell on Mr Woodhouse has been met is all of the evidence which sheds light on the question of where and how the fire originated. That includes not only how the RFS and Police investigations were conducted, but what they uncovered and the evidence which has otherwise been received in these proceedings, about those matters.

What the lay and expert evidence establishes

1. It is a combination of the lay and expert evidence which establishes the source of the fire was the tree.
2. The starting point for this conclusion is the lay and expert evidence which establishes that it is a well-known phenomenon, that an old hollow tree like that here in question, can smoulder for long periods of time and later reignite, long after a burn, even when conditions are cold or wet.
3. This is why Mr Woods accepted not only that it was possible that the tree which was extinguished on 5 September had been smouldering undetected, since it was burnt on 20 August, but that if there was any concern that this tree could pose such a risk, it should have been felled and a bulldozer and tanker used to break up the ground, to ensure it was fully extinguished.
4. That tree, which had been identified as posing a risk, had been left standing on a ridge near the border of Doran and Myack, known to be a wind funnel. lt was inspected after the burn. The unusual weather conditions on 5 September unquestionably gave rise to significant fire risks, which resulted in the imposition of a total fire ban, but it was not inspected that day until after the fire was extinguished.
5. Mr Knowles then found the tree hot to the touch. That it was still smouldering was confirmed when it was then extinguished. That was consistent with it having been left smouldering since 20 August, rather than catching alight from some other source on 5 September, as Mr Woods considered had not been reliably excluded.
6. In his report Mr Woods considered Mr Aitchison's description of the RFS crew applying water to the ground at the base of the tree on 5 September that "the ground blew apart and large quantities of steam came up from the ground". In his experience this suggested that the base and roots of the tree had been smouldering for a significant period of time and evidenced high temperatures having been retained under the soil, which may not have been obvious on visual inspection, but required physical examination.
7. That opinion was inconsistent with the case pressed in the defence final written submissions, that there was no real way of knowing that the tree was the source of ignition, "as opposed to having caught fire from embers caused by the Myack fire which spread to its roots".
8. When Mr Knowles had earlier inspected that tree during his August patrols, he had found it on each occasion to be "benign". But he did not inspect the tree on 3 or 5 September, until after the fire had been extinguished.
9. Mr Aitchison was not aware of any other fire which could have been the source of the 5 September fire, other fires having been attended to that day by other brigades and contained within a short time from ignition, despite the conditions that day being severe.
10. Contrary to the case advanced by the defence, the evidence does not permit the conclusion that it was a fire starting somewhere on Myack, elsewhere on Doran, or in the nearby vicinity which ignited the tree. There is simply no evidence which would support that conclusion, despite Mr Woods' concerns about the adequacy of the later investigations.
11. Professor Adams explained in the concurrent evidence that there was no evidence of fire having burnt on 5 September upwind of the tree, while downwind, the grass was burnt. That pointed to the tree as the origin of the fire. He initially considered that the source of ignition could have been either the branch which blew from the tree or embers from the tree. Mr Woods accepted that the tree was a possible source of the fire, but considered that it was unlikely to have been the branch, with which Professor Adams finally agreed.
12. In the concurrent evidence Professor Adams also described how air moved across landscape in parcels with prevailing winds, which have a particular speed and direction, but that there are also lulls, so that wind does not always move in the prevailing direction and at the prevailing speed. Eddies of wind can move in unpredictable directions. The August burn had partially burnt the area around the tree, but it had not been uniform in its intensity. Some fuels had been left around the tree, with the result that with the second fire, it was the area downwind from the tree, which had been burnt. He also explained that there being two fire scars would have made the investigation more difficult, but he was still satisfied that the fire began in the tree.
13. Mr Woods agreed that the 100kph winds on 5 September would not have moved consistently across the topography, so that wind speed could have been stronger or weaker at different times, with the result being the eddying effects Professor Adams described. The photographs showed that fuel around the tree was sparse, but he agreed that fire could have got into the tree's root base.
14. Professor Adams considered that the fire had travelled from that general location across the landscape with the strong prevailing wind, notwithstanding lulls and eddies, which in his opinion made it extremely unlikely that the fire started some distance away and then moved, against the wind, to the tree.
15. As to the fire starting elsewhere, Professor Adams gave an example of someone lighting a match 5 metres from the tree, with the result fire being carried to the tree being possible, but not if it was lit 200 metres away. Mr Woods did not disagree with this, but still considered it impossible to know whether there had been another potential source, given the deficiencies in the investigation.
16. Having been informed about Mr Aitchison's evidence about a fire known to have occurred at Myack in the 1950's, and that the topography north west of Myack created a wind funnel, Professor Adams described the relationship between fire and wind to be akin to that between water and gravity. Fire moving with wind, in his view confirmed that the source of the fire was the tree.
17. Mr Woods explained that fire behaviour was subject to three components: weather, fuel and topography and agreed that this part of the Monaro was very prone to very strong winds. But he was still not satisfied that the source of the fire had been identified.
18. The experts also discussed other possible sources of fire ignition, such as lightning; shooting activity; use of machinery; and cars driven across paddocks. There being no evidence of the presence of any of these other potential sources of ignition, which Professor Adams did not accept had not been investigated, he considered that there was only a remote possibility that the source of the fire was not the tree, which he assessed to be less than 5%.
19. Mr Woods' position remained that while it was "quite possible" that the tree was the source, the evidence did not establish that it was, his view remaining that the investigations had not established the source. He also explained that he considered the error into which Mr Hagan had fallen, when examining other potential sources of the fire, to have been that he was assessing those causes against what he had assumed the source to be.
20. Professor Adams disagreed. He considered that all of the available evidence pointed to Doran as the source of the fire. The probability of the tree having smouldered since the burn and reignited on 5 September was high. Mr Woods maintained that while this was conceivable, it could not be confirmed because of the limited investigation material available.
21. The disagreement between the experts has to be considered in light of the fact that neither the RFS or police investigations, nor the other evidence led in these proceedings identified any likely source of the fire, other than the tree.
22. The RFS and police investigations both concluded that the fire had broken out on Doran. The RFS identified its source to have been this tree. The police report later made to the Coroner identified the origin to be a nearby property caused by strong winds reigniting a back burn, described to have been conducted by the RFS in August; the tree having then caught fire; the remainder of the fire having been extinguished, but not the tree; the gale force wind event then having reignited the tree, with embers being blown onto Myack, the winds being so strong that fire fighters were unable to protect Myack, which was extensively damaged. The report was supported by statements made by Senior Constable Hancock and Detective Senior Constable Hopkin; the fire investigation report; photographs; and other documents.
23. The Police report led to the conclusion that there was no need to conduct an inquiry into the cause and origin of the fire: ss 30, 31 and 46 of the Coroners Act 2009 (NSW).
24. Photographs of the tree taken by Mr Aitchison on 5 September and later by Mr Nathan, the RFS investigator, as well as of the fence nearby, showed that it had other singed braches still stuck in it. This tree was one of only two old trees left standing on the ridge. There was no suggestion that the branches could have come from the second tree.
25. The experts agreed that a comprehensive investigation of the burn site could help determine the origin and cause of a fire, which could not be deduced from an examination of photographs, but they certainly put into context the evidence of what those present on 5 September and those who conducted the later investigations saw.
26. Mr Hagan concluded that the cause of the fire was burning debris which originated from the tree, which was located in the burnt area of the hazard reduction burn, resulting in the tree branch being broken and blown approximately 50 metres to the southeast, igniting grassland there.
27. His report established that Mr Hagan did consider other potential causes, which he excluded. They included lightning; campfire; smoking; equipment use; incendiary fire play; rail; power lines; and miscellaneous matters, of which he found no evidence. Despite Mr Woods' criticism of the report and Mr Hagan's investigation methods, he was not required for cross examination.
28. The evidence also established that there had been no reported lightning strikes on 5 September which could have started the fire, and that while, during the course of the morning other fires had broken out elsewhere in the District there was no suggestion that they could have started the Myack fire, given their location.
29. Two other conceivable sources identified were the nearby township of Doran and a road which traversed Doran, some distance from the tree on which the defence relied to submit that they had not been ruled out and the Investigation Report made no reference to them. But nothing in the evidence provides any basis for concluding that such sources were likely to have been involved in starting this fire.
30. Neither the experts' evidence, nor the evidence of the state of the tree on 5 September, what happened when it was doused, or the 100 kph winds driving from the direction of the tree into Myack, leave that possibility reasonably open, given that there was no evidence of a second fire upwind of the tree.
31. Also necessary to consider is Mr Woods' description of the results of research on the interaction between snow, water and soil on subsurface smouldering vegetation, inhibiting loss of heat and prolonging the process, which he considered is what "may well have occurred" with this tree, after the prescribed burn. He also agreed with Professor Adams, that ignited hollowed out trees were difficult to fully extinguish and that the detection of fire spread in roots and tubers underground could be extremely difficult.
32. Mr Woods also considered that the interaction of the snow and rain which had fallen on Doran after the controlled burn could have acted as an insulator on the subsurface smouldering vegetation, inhibiting the loss of heat and access of oxygen to the smouldering timber, prolonging the smouldering process: at [63]. He said that may not have been obvious through visual inspection and thus required physical examination.
33. There is no issue about the adverse weather conditions that prevailed on 5 September. They included unseasonably high temperatures, low humidity and winds of over 100kph, blowing from the direction of Doran. There were pine trees and bales of hay near the Myack homestead which were engulfed by fire and contributed to the ember attack on the homestead, but there was also no evidence that the fire ignited in those trees or hay bales.
34. Even accepting the criticism of the fire investigation, there is simply no evidence which leaves open as a reasonable possibility that the Myack fire originated from somewhere other than the tree not properly extinguished on 20 August and then left smouldering, undetected until it reignited on 5 September.
35. As a result I am satisfied that Professor Adams' opinion that the probability that the fire was caused by some source of ignition other than the tree was exceedingly small, must be accepted. It follows that Mr Woodhouse has established on the balance of probabilities, that the source of the fire was the tree left smouldering, undetected, from 20 August.

Did Mr Fitzgerald and Ms McCoy owe Mr Woodhouse a non-delegable duty of care?

1. The evidence, including Mr Woods' opinions to which I have already referred, established that not only was there a risk of fire escaping from Doran during the burn conducted on over 550 acres on 20 and 28 August, but that there was also a risk of the fire reigniting and escaping afterwards, if it was not properly extinguished. That was why post burn patrols were conducted by the RFS.
2. Mr Woodhouse does not claim that Mr Fitzgerald and Ms McCoy were vicariously liable for the conduct of the RFS. His case is that the 16 August acknowledgement provided to the RFS put beyond question, that they were aware of the duty which they owed him, during and after the burn, to take reasonable care. Further, that it was a non-delegable duty, not satisfied simply by arranging for the burn and its later monitoring to be conducted by the RFS.
3. This was in issue.
4. Mr Fitzgerald and Ms McCoy accepted that "as the occupier[s] of property on which a fire may ignite, [they] owed a duty to neighbours (in the sense of those persons who lived or owned land in the proximity of the tip) to take reasonable care to prevent the ignition of a fire and to prevent its spread." Weber v Greater Hume Shire Council (2019) 100 NSWLR 1, [2019] NSWCA 74 at [19]. But they denied that their duty was non-delegable, when fire was introduced to their land, despite what was decided in McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13.
5. The facts which arose in all three of those cases concerned the risk of fire escaping and damaging a neighbour. But McInnes and Burnie were submitted to be distinguishable because it was the RFS which had been engaged to undertake the burn, it being required to do so in accordance with the requirements of the Rural Fires Act 1997 (NSW).
6. It was also the defence case that Mr Fitzgerald and Ms McCoy's acknowledgement was given for the "benefit" of the RFS, not third parties.

Mr Fitzgerald and Ms McCoy's acknowledgment

1. The August 2012 pro forma "request for assistance with a prescribed burn" that Mr Fitzgerald and Ms McCoy signed, provided: "I Barry Thomas Fitzgerald and Virginia McCoy as owner/occupier of "Doran" XXXX request the assistance of the NSW Rural Fire Service (the RFS) in undertaking a prescribed burn (the Burn) on the Land. A description of the Burn and a map identifying the Land and the site of the Burn is attached. I acknowledge I am responsible for: * obtaining all relevant environmental approvals, including a bush fire hazard reduction certificate if required; N/R * obtaining a fire permit if required; N/R * making any notifications that are required (including all adjoining land owners/occupiers 24 hours prior to lighting the Burn); Local RFS Personnel will do * establishing any 'control lines' that may be required. Done 14 & 15 August Lex Suthern. I also acknowledge that I will remain responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished notwithstanding any assistance that may be provided by the RFS. I hereby consent to members of the RFS: entering the Land for the purpose of assisting in the planning, preparation and execution of the Burn."
2. The term "prescribed burn" was not a term used either in the Rural Fires Act or the Regulations. It is pertinent that this was a standard form for "assistance" with a burn, but there is no issue that what Mr Fitzgerald and Ms McCoy sought and the RFS agreed to do was itself to conduct the burn, after Mr Fitzgerald and Ms McCoy had engaged Mr Suthern, also an RFS volunteer, to install control lines for the burn with his bulldozer, as Mr Aitchison had advised them.
3. Ms McCoy's evidence was that she obtained the form from the RFS and made the handwritten notations "N/R" next to the bush fire hazard reduction certificate and fire permit dot points. The entries "Local RFS Personnel will do" next to the notification dot point and the entry "done: 14 and 15 August Lex Suthern" were also hers. They reflected a conversation which she had with a Ms Evans at the Berridale RFS office. Ms Evans was not called to give evidence, nor is there evidence that Mr Fitzgerald and Ms McCoy or the RFS obtained any permit to conduct the burn.
4. Despite the acknowledgment Mr Fitzgerald and Ms McCoy provided, on their affidavit evidence they understood that any risk of fire spreading from Doran as the result of the controlled burn was not their responsibility, but that of the RFS, given their advice that they were absentee landlords. Furthermore, they were ignorant of any risk that the fire could reignite after the burn.
5. Mr Fitzgerald and Ms McCoy thus did not take any steps to ascertain what Mr Suthern did after they engaged him to install the fire control lines. They also took no steps to ascertain what precautions the RFS volunteers who conducted the burn proposed to take to prevent fire escaping from Doran, during or after the burn. Nor did they take any steps to establish that those precautions were actually being taken.
6. On the case initially pressed in the defence final written submissions, had they attempted to do so, there was a potential conflict between what they might have required of the RFS and the statutory duty imposed upon it by s 63 of the Rural Fires Act, given that it imposes a duty on public authorities to take practicable steps to prevent the occurrence of bush fires and to minimise the danger of the spread of bush fires. In final oral submissions, however, it was conceded that this section did not apply to the RFS.
7. But the acknowledgement which Mr Fitzgerald and Ms McCoy gave the RFS was certainly consistent with the obligations which s 63 imposed upon them, as well as with the duty which they accepted that they owed Mr Woodhouse.
8. Despite these obligations, Mr Fitzgerald and Ms McCoy did not concern themselves with either the work they had engaged Mr Suthern to perform, or the conduct of the burn or its aftermath. Even on 2 September when Mr Fitzgerald went to Doran, he did not inspect the burn site, other than by going to the knoll which overlooked it, to see what had been burnt. Mr Fitzgerald and Ms McCoy did not even make any enquiries of the RFS or anyone else, as to whether they needed to do anything themselves, either during or after the burn.
9. The defence case was that they had not needed to do so, given that Doran then remained in the control of the RFS, which did not hand control back to them, until they met with Mr Aitchison after the Myack fire. Nothing in the statutory scheme was pointed to as providing a basis for the conclusion that Mr Fitzgerald and Ms McCoy, the owners of Doran, had no control over their property, because the RFS had agreed to conduct this burn. Nor can one be found in the acknowledgment which they gave the RFS, when seeking its assistance.
10. On 5 September the ambient temperature was unseasonably high, with low humidity and gale force winds, with the result that a total fire ban was imposed, but Mr Fitzgerald and Ms McCoy did not monitor the weather conditions and took no steps even to enquire of the RFS whether any precautions needed to be taken, to deal with any risk of the fire reigniting. Nor did the RFS take any precautions to guard against that risk materialising that day.
11. Whether, as absentee landowners, Mr Fitzgerald and Ms McCoy leaving all precautions in relation to the burn and ongoing post burn risks entirely in the hands of the RFS was a sufficient precaution, given the duty which they owed Mr Woodhouse and the acknowledgement they had given, was in issue.
12. The defence contended that the acknowledgment had been given for the "benefit" of the RFS. That submission has to be considered in light of s 128 Protection from Liability of the Rural Fires Act. It protects RFS officers and members, as well as the Crown and others, from liability for matters or things done or omitted to be done in good faith for the purpose of executing any provision of that or any other Act, other than s 33. Section 33 is concerned with RFS brigades voluntarily co-operating with a public authority in the exercise of any of the authority's prescribed functions.
13. In light of s 128, it is difficult to see how the acknowledgment which Mr Fitzgerald and Ms McCoy gave could have been for the benefit of the RFS. It rather appears to reflect the duty imposed by s 63 on landowners, as well as the duty which landowners have long been recognised to owe their neighbours, when using, or authorising the use of fire to clear or burn off their land. That duty requires them to see that reasonable care is exercised to prevent the fire from spreading, even when the landowner has no right to supervise the person who has been authorised to use fire on the property: McInnes at p 552.
14. While Ms McCoy was not available for cross examination due to ill health, Mr Fitzgerald properly conceded in his cross examination that having given the acknowledgement, he understood that he was responsible for preventing the spread of fire from Doran. But even when he went to Doran on 2 September he made no enquiries of anyone from the RFS about what precautions were being taken in relation to the ongoing risk of fire, even though it must have been apparent from what he observed that day, that no-one was then on the fire ground.
15. That was because, as he explained, he understood that the RFS had not completed their work and monitoring was continuing, by ad hoc inspections. But he agreed that he had been given no reassurance about that. From his conversation with Mr Aitchison before the burn, he understood that they would be given a document on completion. He denied understanding on 31 August that only some dampening down operations remained to be completed, even though in his affidavit he recounted that was what Ms McCoy had told him in late August.
16. Mr Fitzgerald also said that he did understand that the burn had been undertaken by RFS volunteers who had other employment and occupations and so could not give full time attention to monitoring Doran after the burn. He understood, however, that they were highly trained and responsible people who would take steps to ensure that the monitoring was done and if it couldn't be for logistical reasons, that they would "go to clear and unambiguous steps" to ensure that either he or Ms McCoy "personally or otherwise took over their responsibility" Mr Fitzgerald denied that the acknowledgment he had given constituted such steps.
17. Mr Fitzgerald also said that they had taken steps to prevent the spread of fire, by engaging Mr Suthern to install fire control lines, but agreed that they had not personally taken any other steps.
18. That it was Mr Suthern who they contracted to install the fire control lines and RFS volunteers who they arranged to conduct the burn on over 550 acres of Doran, cannot have lessened the duty which they owed Mr Woodhouse. Such a burn undoubtedly being "an operation necessarily attended with great danger," particularly given the risk that the fire could reignite even weeks later, if any old hollow trees were not properly extinguished during the burn and that not identified after the burn.
19. That Mr Fitzgerald and Ms McCoy's acknowledgment was given to the RFS, when they sought the assistance of its volunteers, at no cost to them other than that involved in their contract with Mr Suthern, supports the conclusion that the duty which they owed to Mr Woodhouse was not thereby lessened.
20. Contrary to that acknowledgement, even in respect of what they engaged Mr Suthern to undertake, they exercised no oversight or control to ensure that reasonable precautions were in fact taken to prevent the fire they had arranged to be used to eradicate weeds and vegetation on Doran for their benefit, from extending to Myack.
21. Having given their acknowledgment of the responsibility which they had even after the burn, when obtaining the assistance of the RFS, it is difficult to conceive that Mr Fitzgerald and Ms McCoy had no understanding of their own responsibility for the control of the fire they arranged to be used on Doran, but that was their evidence, to which it will be necessary to return.

The parties' cases

1. Mr Woodhouse's case was that as the owners of Doran Mr Fitzgerald and Ms McCoy had control of the property, which they exercised when they requested the RFS to undertake the controlled burn and later when they permitted RFS volunteers to enter the property and perform the burn and later patrols: Kevan v The Commissioner for Railways (1972) 2 NSWLR 710 at 713-714. In the circumstances their duty was non-delegable, given the nature of the risk of fire escaping Doran and Mr Woodhouse's vulnerability to that fire: Burnie.
2. The defence case was that the duty which it was accepted that Mr Fitzgerald and Ms McCoy owed Mr Woodhouse was not a duty of the more stringent kind discussed in Burnie, to ensure that reasonable care was taken, that flowing from considerations of control and special dependence, which did not here exist.
3. Further, in final written submissions it was argued that so to conclude when it was assistance from the RFS which was sought and provided would result in an inconsistency between the common law duty and the provisions of the Rural Fires Act, especially s 63. That would also expose the RFS to the potential of "owing inconsistent duties to two masters". As I have explained, however, in final oral submissions it was accepted that s 63 did not apply to the RFS.
4. McInnes was sought to be distinguished because there it was an independent contractor who had been engaged to exterminate rabbits on a property by fire, with the occupier of the land being held liable for the damage caused when the fire spread to other land. There was no equivalent contractual relationship between Mr Fitzgerald and Ms McCoy and the RFS which had protections given by the Rural Fires Act and the Civil Liabilities Act.
5. The rationale in McInnes was also argued to lie in the proposition that the terms of the contract with the exterminator could not defeat the claim that the duty was non-delegable, because "it may be presumed that a contracting party may bargain for whatever term it likes".

McInnes cannot be distinguished

1. Even if that submission were accepted, it must be remembered that having engaged Mr Suthern to install the fire control lines as Mr Fitzgerald and Ms McCoy did, his position was entirely akin to that of the independent contractor in McInnes.
2. But it was not the nature of the relationship between the occupier and the contractor engaged to use fire on the land which led to the conclusion that the duty which arose for consideration in McInnes was non-delegable. That was the result of the nature of the risk which the use of fire there involved and the vulnerability of the adjoining landowner to damage from that fire, which was beyond his control: McInnes at 550. Thus, quoting from Black v Christchurch Finance Co [1894] AC [1893] UKPC 60 at 54 it was observed in McInnes at 550: "The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour's property... And if he authorizes another to act for him, he is bound not only to stipulate that such precautions shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences."
3. In Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 81 ALJR 686; 233 ALR 200; 153 LGERA 55; [2007] HCA 6 Gleeson CJ described a non-delegable duty in this way at [9]: "… where the engagement of a third party to perform a certain function is consistent with the exercise of reasonable care by a defendant, but the defendant's legal duty is not merely to exercise reasonable care but also (if a third party is engaged) to ensure that reasonable care is taken. In such a case, the third party's failure to take care will result in breach of the defendant's duty. The legal consequence is that the circumstance that the third party is an independent contractor does not enable the defendant to avoid liability. It is because of its practical effect of outflanking the general rule that a defendant is not vicariously responsible for the fault of an independent contractor that the identification of this special responsibility or duty is important."
4. True it is that the RFS was a public authority. But it is long settled that a public authority owes duties of care in carrying out its statutory functions. Thus "when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered": Sutherland Shire Council v Heyman (1985) 175 CLR 425; [1985] HCA 41 at [21]. The latter can, of course, be altered by statutory provision such as s 128 of the Rural Fires Act.
5. Mr Woodhouse does not claim that in failing to take reasonable precautions against the risk of the fire spreading to Myack, the RFS breached any statutory duty. His case is rather that Mr Fitzgerald and Ms McCoy were responsible for those failures, given the nature of their non-delegable duty.
6. To resolve the cases which the parties advanced, it is thus necessary to have regard to the two statutory schemes on which the defence relied, the Rural Fires Act and the Civil Liability Act.

The Rural Fires Act

1. The scheme of the Rural Fires Act in September 2012 was to establish the Rural Fire Service, which was comprised of the Commissioner and other staff and volunteers: s 8. The RFS was given various "functions" in relation to the provision of "rural fire services", defined to include "services for the prevention, mitigation and suppression of fires in rural fire districts": s 9(4)(a). "Functions" was defined in the Dictionary to include "a power, authority or duty".
2. It was common ground that the conduct of the burn on Doran fell within this function.
3. Section 13 provided for the Commissioner to issue service standards for standard operating procedures, which could confer functions on officers of brigades. None were in evidence.
4. The Rural Fires Act also provided that RFS brigades would exercise functions conferred "for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency" and that they would take other actions reasonably necessary or incidental to the effective exercise of those functions: s 22. Particular examples of such functions were then dealt with.
5. They included removing people and things from the vicinity which could interfere with the RFS' work: s 22A; entering premises and closing streets: ss 23 and 24; making premises safe and using water: ss 24 and 25; and using force: s 31. Under s 25(1)(b) an officer of a rural fire brigade was given power, if persons or property was endangered or likely to be endangered by a fire, incident or other emergency, to "destroy, pull down or remove or cause to be destroyed or removed any living or dead vegetation on any land". But the issuing of fire permits, authorising a person to light a fire on land, was regulated by s 89.
6. Section 33 also permitted voluntary work with a public authority in the exercise of its functions.
7. The Act also provided for:

• the formation of rural fire brigades by local authorities and the appointment of officers for the brigades, who were not to be taken as employees of the State: ss 15, 18 and 21;
• fire control officers who were responsible for the control and co-ordination of the activities of the Service in the rural fire district for which they were appointed: s 37;
• local authorities for the rural fire districts, who had other responsibilities: s 37;
• the Bush Fire Co-ordinating Committee, a statutory body representing the Crown, responsible for matters such as planning in relation to bush fire prevention and co-ordinated bush firefighting: ss 46 and 47;
• and Bushfire management committees: ss 50 and 51.

1. Bushfire prevention was dealt with in Part 4 of the Act. Reliance was initially placed by the defence on s 63, which placed relevant obligations on Mr Fitzgerald and Ms McCoy and it was initially contended, also on the RFS. It provided: "63 Duties of public authorities and owners and occupiers of land to prevent bush fires (1) It is the duty of a public authority to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire on or from: (a) any land vested in or under its control or management, or (b) any highway, road, street, land or thoroughfare, the maintenance of which is charged on the authority. (2) It is the duty of the owner or occupier of land to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land. (3) A public authority or owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section. (4) The Bush Fire Co-ordinating Committee may advise a person on whom a duty is imposed by this section of any steps (whether or not included in a bush fire risk management plan) that are necessary for the proper performance of the duty. (5) In this section: notified steps means: (a) any steps that the Bush Fire Co-ordinating Committee advises a person to take under subsection (4), or (b) any steps that are included in a bush fire risk management plan applying to the land."
2. "Public authority" was defined in the Dictionary of the Rural Fires Act to mean: "(a) any public or local authority constituted by or under an Act other than this Act, or (b) any Government Department, or, (c) a statutory body representing the Crown, or (d) a State owned corporation, or (e) any person prescribed by the regulations as a public authority."
3. It was finally accepted that s 63 did not apply to the RFS, given this definition.
4. The definition is circular, but there is no question that the RFS was a "public authority" as that term is ordinarily understood: see Re NSW Grains Board [2002] NSWSC 913 at [37]-[38]. It is an unincorporated body established by the Rural Fires Act which can clearly exercise control power or command for the public advantage and can execute a function in the public interest: Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559; [1953] HCA 79 at 565-7.
5. The RFS was established by s 8 of the Rural Fires Act to be comprised of the Commissioner, other staff of the Service and volunteer rural fire fighters. But it was not a Government department, a statutory body representing the Crown, or a State owned corporation. It was also not prescribed by Regulation, to be a pubic authority.
6. It follows that while s 63 imposed duties on Mr Fitzgerald and Ms McCoy in relation to bushfire, it imposed none on the RFS, it not being a "public authority" as defined in the Dictionary.
7. Section 86 applied to the RFS, as well as Mr Fitzgerald and Ms McCoy, making it an offence to light a fire on land for the purpose of land clearing or burning a fire break without the provision of notice in accordance with the Regulations. "Land clearing" was defined to mean "clearing land of bush, stubble, scrub, timber, trees, grass or vegetative or other material."

The Civil Liability Act

1. Part 5 of the Civil Liability Act deals with the liability of public authorities constituted under an Act: s 41. Section 42 specifies the principles which apply in determining whether a public or other authority has a duty of care, or has breached a duty of care in proceedings for civil liability. They include the functions required to be exercised, limited by the financial and other resources reasonably available for the exercise of those functions; the general allocation of those resources not being open to challenge; the functions required to be exercised being determined by reference to the broad range of the authority's activities; and evidence of its compliance with the general procedures and applicable standards for the exercise of its functions, as evidence of the proper exercise of its functions.
2. When proceedings are based on a public authority's exercise of, or failure to exercise a function conferred upon it, s 43 applies. It provides: "43 Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority. (2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions. (3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44." ."
3. The defence accepted that given that the provisions of s 63 of the Rural Fires Act did not apply to the RFS, the protection provided by s 43 of the Civil Liability Act would not apply. But it was contended that s 43A would. It provides: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
4. There is a question as to whether, when conducting the burn on Doran the RFS was exercising a "special statutory power". As I have explained, s 9(4) of the Rural Fires Act gave the RFS a relevant function and other provisions empowered the RFS to undertake a burn for the purpose of land clearing. Both a landowner undertaking such a burn or the RFS could only do so, however, if the necessary permits were obtained, that seemingly satisfying s 43A(3) of the Civil Liability Act.
5. The distinction between activities undertaken by a statutory body when exercising statutory powers, as opposed to those which can be undertaken in accordance with the general law, was also considered in Weber. It was concluded that steps there required to be taken by the Council on the tip from which fire spread, were steps which could readily be taken by the owner, or a person having management of the land for waste disposal purposes, without any specific statutory authority. In the result, it was concluded that the precautions which the Council failed to take, upon which its liability was based, did not involve the failure to exercise any special statutory power conferred upon it.
6. Despite that conclusion, it may be the case that if proceedings were brought against the RFS in respect of the burn, s 43A as well as s 128 of the Rural Fires Act would apply, given that statutory scheme. Consideration would, however, have to be given to the apparent failure to obtain the necessary notices and permits for the burn, which may have involved an offence.
7. The RFS is not a party to the proceedings and so these questions do not have to be resolved.
8. What is important, however, is that s 43A reflects that when undertaking the burn on Doran, the RFS owed neighbours like Mr Woodhouse a duty of care, with liability for breach of that duty being excluded in the circumstances specified in s 43A(3). What s 43A does not provide is a basis for concluding that the duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse when they decided to use fire to clear vegetation from over 550 acres of Doran was not non-delegable.
9. It will be necessary to return to the provisions of s 3C and 5C, on which the defence also relied.

Burnie also cannot be distinguished

1. The steps Mr Fitzgerald and Ms McCoy pursued to eradicate weeds, which chemical methods had not brought under control, and to address the risk of fire which they considered the dry grass and weeds posed were consistent with their obligations under s 63(2). But on their evidence they were ignorant of the risks which conducting a burn on their property might expose Mr Woodhouse to; what precautions were available to be taken, to ensure that they did not materialise, during or after the burn; or of the nature and content of the duty which they owed Mr Woodhouse.
2. They believed that despite their acknowledgement, having sought the assistance of the RFS as they had, that they needed to do no more, and that all responsibility for the burn and the risks which it may have posed for others even afterwards, lay with the RFS.
3. Nothing in the Rural Fires Act or the application which they made for RFS assistance provided a basis for such a belief. That they were ignorant of the nature and content of the duty which they owed Mr Woodhouse is irrelevant to the question of whether their duty was non-delegable; as is the fact that they were non-resident landowners, who did not propose to attend Doran, either before or after the burn, to apprise themselves of how the burn had been conducted, or precautions against any ongoing risk of fire reigniting were being taken.
4. In Burnie it was explained that a non-delegable duty arises in circumstances where, viewed from the perspective of the person to whom the duty is owed, there is a relationship of proximity "marked by special dependence or vulnerability on the part of" the person to whom the duty is owed: at p 551. Thus: "One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger ((137) "which he knows to be mischievous if it gets on his neighbour's (property)": Fletcher v. Rylands (1866) LR 1 Ex at 280; see above, fn.(120).). In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is especially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises. Conversely, the person who introduces (or allows another to introduce) the dangerous substance or undertakes (or allows another to undertake) the dangerous activity on premises which he or she controls is "so placed in relation to (the other) person or his property as to assume a particular responsibility for his or its safety." at 37
5. This well describes the respective positions of Mr Fitzgerald and Ms McCoy on the one hand and Mr Woodhouse on the other.
6. In the result, what I earlier quoted above from Black v Christchurch, which had been followed in McInnes, was accepted in Burnie: at p 552-553. In Burnie it was also observed that the dangerousness of the activity involved will heighten the degree of care which is reasonable: at p 555.
7. Burnie arose for consideration in Weber, where it was accepted that in Australia, fire is an "exceptional hazard": at [207]. There it was explained at [27]: "In Burnie Port Authority v General Jones Pty Ltd [16] the High Court identified two propositions of law which are significant in the present context. The first was that "any special rule relating to the liability of an occupier for fire escaping from his premises has been absorbed into, and qualified by, more general rules or principles." [17] Secondly, the principle commonly sourced to the English decision of Rylands v Fletcher, [18] as with special rules relating to fire, "should now been seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence." [19] It follows that there is no separate principle depending on a finding that a dangerous substance has escaped from premises, or a dangerous activity has been carried on premises, which has caused harm to the plaintiff. The nature of the substance or the activity may well affect the standard of care required of the occupier, and may give rise to a non-delegable duty of care. [20] That analysis, nevertheless, takes place within the confines of the law of negligence. It therefore follows that, so far as presently relevant, it will be governed by the Civil Liability Act."
8. The defence contended, however, that what was decided in Burnie was distinguishable because Mr Fitzgerald and Ms McCoy had no contractual ability to control what the RFS did, once they had taken the reasonable decision to engage it, thus having no practical control over either the conduct of the burn or the post burn monitoring.
9. I am satisfied that this submission may not be accepted.
10. To advance this submission reliance was placed on what was observed in P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167 where at [58] reference was made to what was said in Elliott v Bickerstaff (1999) 48 NSWLR 214 [1999] NSWCA 453 at [75], regarding an employer's non-delegable duty of care.
11. Elliott was a case where absent personal negligence, the finding of liability depended on a specialist obstetrician and gynaecologist owing a non-delegable duty of care to a patient, so that he was nonetheless liable for the failure of the theatre staff, who were not his servants or agents, to keep proper count of sponges used in the surgery he had performed. There it was said "The question of a non-delegable duty of care has arisen where a person owing a duty of care has delegated performance to another person. A person owing a duty of care may generally fulfil it by exercising reasonable care in entrusting performance to a competent third party. But in some circumstances the person owing the duty of care cannot fulfil it in that way, and is liable if the third party does not exercise due care. In such circumstances, it is said that the duty of care is non-delegable. 75 The language can mislead. In both situations the duty of care is owed by the first person, and the duty of care is not delegated. The performance can be and is delegated. The effect of a non-delegable duty of care is that the person owing the duty of care is under a more stringent duty of care, a duty of care which cannot be fulfilled by exercising reasonable care in entrusting performance to a competent third party. The duty of care requires that the person ensure that the third party exercises reasonable care, in the sense that the person is liable if the third party does not exercise reasonable care." (my emphasis) at [74]
12. What was said there explains why this case cannot be distinguished from Burnie or Elliott and why the conclusion urged for Mr Fitzgerald and Ms McCoy about the nature of their duty cannot be accepted.
13. There can be no question as to the nature of the danger that eradicating weeds and dry vegetation on over 550 acres on Doran by fire posed to Myack, given the risk of fire escaping either during, or after the burn if it was not properly extinguished. Nor can there be any question that Mr Woodhouse was especially vulnerable to such damage, having not been given prior notice of the burn, despite his undoubted vulnerability to damage if reasonable precautions were not taken to ensure that fire did not escape from Doran, either during or after the burn.
14. The RFS was authorised by Mr Fitzgerald and Ms McCoy to enter Doran to undertake the burn in their absence. That they decided not to be present cannot have diminished the duty which they owed Mr Woodhouse. After all, as owners of Doran, if at any time they were not satisfied that reasonable precautions were being taken by RFS volunteers, particularly during post burn monitoring, they were unarguably entitled to take other steps, to ensure that the necessary precautions were taken.
15. This was simply not a case like that which arose for consideration in Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572; [1997] HCA 39 for example, which was referred to in Elliott. In Northern Sandblasting reference was made to Burnie and what Mason J observed in Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 at p 687, namely: "… the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised."
16. But in Northern Sandblasting negligence on the part of a landlord which might foreseeably cause injury to a tenant was not enough to result in the imposition of a non-delegable duty of care on the landlord. This was so even when repairs had to be made to the premises or to equipment there needed because of ordinary wear and tear during the tenancy, or because of some other reason apart from the landlord's own default. Thus the repair of a stove did not carry any inherent risk of injury, unless it were negligently done, with the result being that the duty which fell on the landlord was not non-delegable: p 332.
17. By way of contrast, electing to burn 550 acres on Doran without prior notice to Mr Woodhouse carried inherent and very significant risks of quite a different calibre, much like those considered in Burnie. The lighting of the fires on Doran, which could readily spread to Myack and cause great damage there, both during the burn and afterwards, if the fires were not properly extinguished, involved an operation necessarily attended with significant danger. That required that Mr Fitzgerald and Ms McCoy use all reasonable precautions to prevent the fire extending to their neighbour's property, which could not be satisfied simply by engaging the RFS and its volunteers.
18. Even though the RFS was undoubtedly "a competent third party", it was the nature of the relationship between Mr Fitzgerald and Ms McCoy and Mr Woodhouse as neighbours whose property they had an obligation to safeguard and protect, which made their duty non-delegable, when they elected to conduct the burn on Doran: Kondis at 679-687.
19. Any inability on their part to devise, implement or control how the RFS volunteers undertook the burn or the subsequent patrols, or to require the RFS to take any particular steps in doing so, can lead to no different conclusion: P & M Quality Smallgoods at [58].
20. In any event, the evidence which Mr Fitzgerald gave in cross examination establishes that, contrary to the defence case pressed in the original written submissions, there were steps available to Mr Fitzgerald and Ms McCoy to ensure that reasonable care was taken, to which I will return.
21. This means that they are liable for any breach of their duty, notwithstanding that they left the performance of their duty entirely to the RFS. "This proposition is given statutory force by s 5Q of the Civil Liability Act": P & M Quality Smallgoods at [60]. It provides: "5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task. (2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A."
22. The defence also relied, however, on s 3C of the Civil Liability Act to submit that it excluded Mr Fitzgerald and Ms McCoy's liability for the acts of the RFS.

The effect of s 3C of the Civil Liability Act

1. The section provides: "3C Act operates to exclude or limit vicarious liability Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort."
2. I am not satisfied that s 3C has the effect for which the defence contended in final written submissions, namely, that even if it were concluded that the duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse was non-delegable, the combined effect of ss 3C, 5Q and 43A excluded their liability to Mr Woodhouse for any failure by the RFS to take reasonable precautions. Section 128 of the Rural Fires Act was similarly relied on.
3. Section 3C operates to exclude or limit vicarious liability for the acts of another, in cases where the Civil Liability Act excludes or limits that person's liability for a tort. It is not concerned with excluding or limiting liability for non-delegable duties, where the person who owes the duty delegates what is claimed to have involved negligence, to a third person for whose actions they are not vicariously liable.
4. It was not finally Mr Woodhouse's case that Mr Fitzgerald and Ms McCoy were vicariously liable for the acts of the RFS. That s 3C would limit their vicarious liability for the RFS, if such liability had existed, does not arise for consideration in determining the extent of their liability for any breach of the non-delegable duty which they owed Mr Woodhouse.
5. It is s 5Q which requires that the extent of their liability in tort be determined "as if" Mr Fitzgerald and Ms McCoy had vicarious liability for the negligence of the RFS. But s 5C does not make Mr Fitzgerald and Ms McCoy vicariously liable for its negligence, in which event s 3C would have work to do.
6. As Gleeson CJ explained in Leichardt Municipal Council v Montgomery at [9] there is a difference between where it is not an act or omission of the defendant, or of someone for whose fault the defendant is vicariously responsible, that has caused harm to the plaintiff, but the act or omission of some third party, for whose fault the defendant would not ordinarily be vicariously responsible. This should not be overlooked in construing the effect of ss 3C and 5Q.
7. As was discussed in Elliott, a non-delegable duty is a more stringent duty, which has the result that if a third party such as the RFS does not exercise reasonable care in undertaking the work it was engaged to perform by the person who owes the duty, in this case Mr Fitzgerald and Ms McCoy, they are liable for the damages that the person to whom the duty is owed, namely Mr Woodhouse, suffers.
8. It is because their duty to Mr Woodhouse was non-delegable, that s 5Q requires that the extent of Mr Fitzgerald and Ms McCoy's liability for such negligence be determined as if they were vicariously liable for the RFS' acts or omissions. Section 3C is not concerned with that exercise. Nor does s 5C make Mr Fitzgerald and Ms McCoy vicariously liable for negligence on the part of the RFS.
9. Reliance was placed on The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97, [18]-[20], where reference was made to Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12. There it was observed at p 295, in the context of a claim that the Commonwealth was vicariously liable for the acts or omissions of a servant, that it was only liable if the servant would himself be liable, adopting what was said in Imperial Chemical Industries Ltd. v. Shatwell (1965) AC 656; [1964] UKHL 2: "Unless the servant is liable the master is not liable for his acts; subject only to this, that the master cannot take advantage of an immunity from suit conferred on the servant (Broom v. Morgan (1953) 1 QB 597)"
10. Mr Fitzgerald and Ms McCoy, however, were not vicariously liable for the acts of the RFS or its volunteers. It follows that the fact that at common law, vicarious liability does not attach to the negligent acts or omissions of another if that other is immune from liability, is not relevant in this case. Nor is it relevant that s 128 of the Rural Fires Act may have the effect that the RFS is not liable to Mr Woodhouse for any negligent acts on its part, were proceedings to be brought against it.
11. That would not impact the non-delegable duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse. Their duty required them to ensure that the RFS exercised reasonable care, in the sense that they would be liable if the RFS failed to do so, even if the RFS itself would have no liability in negligence to Mr Woodhouse.
12. Given the nature of the duty which they owed Mr Woodhouse, Mr Fitzgerald and Ms McCoy not being vicariously liable for the RFS could not make them immune from liability for their failure to ensure that the RFS exercised reasonable care, given the nature of their own non-delegable duty, notwithstanding the effects of s 43A and s 128 of the Rural Fires Act for the RFS.

Was the duty breached?

1. As I have already explained, the 5 September fire originated on Doran, the weather conditions that day caused the smouldering hollow tree left standing after the burn on a ridge near its border with Myack in a known wind funnel to reignite. The result was that fire spread unhindered to Myack, in circumstances where Mr Fitzgerald and Ms McCoy owed Mr Woodhouse the non-delegable duty which he claimed he was owed.
2. I am satisfied, for the following reasons, that the non-delegable duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse was breached.

How the lay evidence can be used

1. There was also an issue as to whether it was open to Mr Woodhouse to submit that what the RFS had done was negligent, given that it was he who had called Mr Aitchison and the RFS volunteers who had undertaken the burn to give evidence; that negligence on their part had not been put to them; and that it was not even apparent that they were aware that this was a part of his case.
2. Mr Aitchison and the RFS volunteers whose evidence was led gave evidence about what they had said, done and observed and in some cases, about opinions they had formed and knowledge which they had. Their evidence was tested in cross examination and must now be considered in resolving whether or not Mr Woodhouse has met the onus of establishing his case. It being that Mr Fitzgerald and Ms McCoy breached the non-delegable duty which they owed him; to ensure that reasonable precautions were taken to prevent fire spreading to Myack.
3. That it was not put to them by Mr Woodhouse, who was not entitled to cross examine them, that the RFS had been negligent does not preclude him from identifying what reasonable precautions ought to have been taken in the circumstances which their evidence establishes. Nor is it precluded from submitting that they were not taken, as they ought to have been, given the duty which he was owed by Mr Fitzgerald and Ms McCoy.

Requirements of the Civil Liability Act

1. To determine whether Mr Fitzgerald and Ms McCoy breached their duty it is necessary to identify the precautions which a reasonable person in their position would have taken to prevent the harm which Mr Woodhouse suffered from materialising.
2. That requires regard to be had to the matters identified in ss 5B and 5C of the Civil Liability Act. They provide: "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."
3. For reasons which follow, in summary I am satisfied that: 1. While risks must be assessed prospectively, as discussed in Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41 [2020] at [39], it was foreseeable that if precautions were not taken when a burn on some 550 acres of a country property such as Doran was conducted, to identify and extinguish trees still smouldering, there is a risk of the fire reigniting and spreading to adjoining properties such as Myack: s 5B(1)(a) Civil Liability Act; 2. This was a risk of which the RFS was well aware and owners of rural properties such as Doran like Mr Fitzgerald and Ms McCoy either knew, or should have known: s 5B(1)(a); 3. The risk of fire spreading from Doran after this burn, was not insignificant: s 5B(1)(b); 4. A reasonable person in the position of Mr Fitzgerald and Ms McCoy, having arranged for this burn to be conducted in their absence at no cost to them by RFS volunteers and having acknowledged their responsibility for the burn as they did, had to ensure that reasonable precautions against the materialisation of that risk were taken: s 5B(1)(c); 5. There was a real probability that the fire could reignite and spread, if care was not taken to guard against that risk materialising: s 5B(2)(a); 6. The likely seriousness of the harm which would result to adjoining properties such as Myack, was significant: s 5B(2)(b); 7. The burden of taking precautions to avoid that risk of harm, was not such as to preclude Mr Woodhouse's case succeeding: s 5B(2)(c); 8. Nor was the social utility of the burn that created the risk of harm: s 5B(2)(d).

The risk of fire was foreseeable and one of which Mr Fitzgerald and Ms McCoy ought to have known

1. What is in issue is what a landowner in the position of Mr Fitzgerald and Ms McCoy ought to have known. As Garling J discussed in Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 at [70], constructive knowledge necessarily depends upon all of the facts, matters and circumstances which they knew, or ought to have known. Further: "other matters which may impact upon the drawing of an inference as to knowledge may include such things as the common knowledge and experience of others in similar positions to the defendants, public notoriety of a particular risk of harm, publications containing academic exposition of risk which might be expected to be read by people in the position of the defendant, and as well, the obviousness or likelihood of an event happening when applying common sense. It is important to emphasise however that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences."

The defence case

1. The defence contended that Mr Woodhouse's case was infected with hindsight analysis and that the pleaded case had not been established. The pleaded case included: "14 The defendants were negligent and breached the Duty of Care and are liable for the failure of the RFS to take reasonable care to prevent the spread of fire from Doran onto Myack. Particulars The defendants were negligent and breached the Duty of Care by failing to: a. confirm when the RFS had ceased to undertake any monitoring of the Fire; b. inspect and confirm that the Fire had been extinguished; c. consider and comply with section 63(2} of the Rural Fires Act 1997; d. obtain advice from the RFS as to: 1. what steps had been taken to extinguish the Fire; 2. confirming what inspections had been undertaken by the RFS after the Fire; and 3. any areas of the Fire, including the Tree, which were incapable of being as extinguished; e. undertake hazard abatement work in relation to the Tree as an unverified source of fire by dousing its hollow with water and/or knocking it down and exposing the roots of the tree; f. monitor the site of the Fire, to ensure that the Fire did not re-ignite particularly if the Defendants had not undertaken the hazard abatement work particularised at 14.e, above; g. advise the plaintiff of what actions had been taken to ensure that the Fire had been properly extinguished; h. advise the plaintiff that the defendants had not checked whether the Fire had been properly extinguished and were not monitoring the area of the Fire; i. monitor weather forecasts for high fire risk weather conditions after the Fire and increase monitoring of the site of the fire on days of elevated fire risk particularly if the Defendants had not undertaken the hazard abatement work particularised at 14.e, above; j. remain in occupation of Doran on the 5th September 2012, when hazardous fire conditions were forecast, or advise the plaintiff that they did not intend to remain in occupation of Doran on that day: and k. give notice to the plaintiff as an adjoining landowner of their intention to cause the Fire and the proposed arrangements to monitor and contain it. Further particulars of the negligence of the RFS aa. Failed to extinguish (sic) the fire by pushing the Tree over and exposing its root ball: bb. Failed before declaring the scene to be safe on 31 August 2012 to monitor the fire ground for signs of risk of reignition: cc. Failed to undertake appropriate hazard abatement work in relation to the Tree by dousing its hollow with water/and or knocking it down : dd. Failed to attend the site on 5 September 2012 being a high risk weather day to ensure that the fire did not re-ignite: ee. Failed to advise the defendants that the tree should be knocked over and the undersurface inspected; ff. Failed to inform the defendants that the RFS intended to cease operations including post-burn monitoring: that the site was to be "handed over" and that they, the defendants, should carry out inspections to confirm the fire had been extinguished: and gg. Failed pursuant to s.63(2) of the Rural Fires Act 1997 to advise the Defendants that they should take practicable steps to prevent the spread of the fire namely they should push the Tree over to expose its roots and continue to monitor the fire ground, because of the ongoing risk of reignition for weeks after the controlled burn, particularly on high fire risk days. 15. A reasonable person in the position of the defendants would have undertaken the measures particularised in paragraph 14 as: a. the measures were inexpensive and simple to implement; b. the failure of the defendants to undertake the measures exposed the plaintiff to a possible risk of fire which was not assessed by the defendants and which was likely to be incapable of containment, if it materialised; c. the risk of fire carried a risk of serious harm to persons and property; d. there is no social utility in allowing the risk of harm from fire to go unaddressed; and e. The site of the fire contained only two trees for which the measures were necessary, by virtue of their condition and location."
2. The defence also submitted that, viewed prospectively and objectively, the known events did not support the conclusion that a reasonable person in the position of Mr Fitzgerald and Ms McCoy would have had any suspicions or concerns about the risk of fire after the burn, or done anything differently than they were. Further, that the RFS had acted reasonably in the circumstances, not having ceased its operations prior to 5 September and no occasion for any further action having arisen beforehand.
3. It was also contended that the only eye witness was Mr Knowles. His evidence about the appearance of the tree before the fire being that it was "benign" and that the entire burn site was black and cold, lying under snow two days before the fire, the evidence did not establish that if Mr Fitzgerald and Ms McCoy had also monitored the site, that would have been effective. This also followed from Mr Woods' opinion that Mr Knowles' actions in feeling the trunk of the tree to gauge if it was hot, accorded with standard and accepted practices.

The risk was foreseeable

1. The evidence well establishes that risk of reignition of an old hollow tree which was not properly extinguished, but left standing smouldering undetected after the burn was not only foreseeable, but foreseen by the RFS and one of which Mr Fitzgerald and Ms McCoy ought to have been aware.
2. I have already discussed the evidence of the experts about the foreseeability of this risk. The evidence also establishes that this was a risk that RFS officers, volunteers and other landowners and even Ms McCoy, were aware of. That other witnesses only had this knowledge because of their activities as members of the RFS cannot be accepted, given both common sense and Ms McCoy's evidence of her own experiences on her father's farm, when smouldering logs were identified and had to be dealt with after burns were undertaken to clear land, to guard against this risk.
3. As the result of ill health Ms McCoy was not available for cross examination. In her affidavit she explained that she had grown up on a dairy farm and had observed her father clearing and burning off, to increase the farmable portion of their farm. She also described how he had monitored burning logs until they had been extinguished and how on one occasion, a fire had got away into a neighbours paddock.
4. She explained that this was why they discussed the burn with Mr Aitchison in Mr Warner's presence, raising her concern that she and Mr Fitzgerald would be unable to monitor the property after the burn. Their conversation included: Ms McCoy: "I am concerned about the possibility of ongoing burning areas because we will not be around to do any monitoring" Mr Aitchison: "Don't worry, controlled burns performed by the RFS do not leave residual burning sites or areas. Any ongoing burning areas are identified and put out if they catch fire at all. We aim not to let trees, logs and stumps catch alight in the first place. If we go ahead with a controlled burn, we will do some extra monitoring because you and Barry will not be present." Ms McCoy: "Is a controlled burn a sensible thing to do on Doran?" Mr Aitchison: The local Berridale RFS could perform a controlled burn for you." Ms McCoy: "We would try to get back if possible. But we should not be relied on to attend the controlled burn or monitor the site after the burn." Mr Aitchison: "Any controlled burn done by the RFS is completely managed by the RFS, so they can do the controlled burn without you being at the property on the day" We will need access to Doran so that the RFS volunteers can enter and leave to do the controlled burn and also to do monitoring afterwards." Ms McCoy: Mr Warner has agreed to be our local representative and will unlock the gates for the RFS to come and go. Mr Warner has agreed to be available to the RFS to contact for any Doran related matters if for some reason the RFS are unable to contact us. Mr Warner can also give us updates if that will assist."
5. In his affidavit Mr Fitzgerald also said that Mr Warner was present and adhered to this in cross examination, but he did not give an account of a conversation to this effect. Nor did Mr Aitchison or Mr Warner.
6. Ms McCoy also said that she understood from a conversation with Mr Warner on 23 July, that Mr Warner would, subject to other work commitments: liaise with the RFS as required, including in relation to providing access to Doran; check on the progress with the RFS and do a visual check of his own in the afternoons time permitting; close the gates again once the RFS no longer needed access to Doran; and do the ongoing monitoring of Doran when he was undertaking visits to Doran to plan future jobs. In short, she believed and expected that he would liaise with the RFS and keep an eye on the place. That was also not Mr Warner's evidence.
7. In his affidavit Mr Warner said that he did not have anything to do with organising the prescribed burn of Doran in August 2012, or with preparing the property for the burn. He was a member of the Berridale Brigade of the Rural Fire Service at the time and said that he went up to the property "for a look" a couple of times when they were doing the burn and patrolling it afterwards. He was not required for cross examination.
8. In his evidence Mr Aitchison denied having had the conversation to which Ms McCoy deposed. It seems quite implausible, given the nature of the acknowledgement which the RFS required Mr Fitzgerald and Ms McCoy to give, when they sought its assistance. In the circumstances, I am satisfied that Mr Aitchison's evidence, that he was well aware of the need to make clear to landowners their responsibility and thus followed his usual practice of telling Mr Fitzgerald and Ms McCoy "it is hard to get unpaid volunteers to put their time in for you. You have a role to play", must be preferred. That is consistent with the acknowledgement which Mr Fitzgerald and Ms McCoy had to give, in order to avail themselves of the RFS' assistance which, after all, they obtained at no cost.
9. Ms McCoy also said she spoke to Mr Suthern after the burn, who told her that he would be watching Doran when he drove past each day, as he did, but clearly he could not see the tree from that road.
10. Ms McCoy was not monitoring weather conditions and considered that as the RFS was conducting the burn that she was "not in a position to interfere": After the burn she was not informed by the RFS that she and Mr Fitzgerald needed to occupy and monitor Doran and that if they had been so advised they would have been unable to do so, because there was no habitable dwelling there and so she would have "pressed for an alternative solution": at [77].
11. While Ms McCoy was informed of the fire on 5 September, because she suffered an injury she was unable to go to Berridale until 13 September and on the 14th she and Mr Fitzgerald met with Mr Aitchison and Mr Woodhouse at Myack. She said they were then advised that the fire had originated in the tree on Doran to which they were taken.
12. When they returned to the RFS office Mr Aitchison gave her a copy of their request for assistance, the RFS "Burns check list," a document identifying the personnel and tankers involved in the burn and a map of the firebreaks. Mr Aitchison also disputes this, but nothing finally turns on when they received these documents, given Mr Knowles' evidence.
13. Ms McCoy denied knowledge of the risk of reignition of the roots of dead and hollow trees in the days and weeks after a burn, prior to meeting with Mr Aitchison on 14 September. She said that she was not aware that: "(a) fire could remain underground burning in tree roots for any length of time; or (b) that such fire could continue to burn without evidence or a sign that could be observed above ground when searched for, in particular by an experienced RFS officer trained to look for such evidence or signs."
14. Ms McCoy also described the appearance of that tree as sitting on its own, with some smaller loose rocks around the ground spreading outward from its base and with the vegetation relatively sparse apart from weeds and grasses. She believed the RFS could have knocked it over with the onsite bulldozer to inspect its roots.
15. Mr Fitzgerald's evidence corroborated aspects of that given by Ms McCoy and he explained that despite the acknowledgement which they had given on their application form, he understood that the RFS would be in charge and direct the burn. But in cross examination he accepted the reasonability which he had acknowledged.
16. Mr Fitzgerald also said that he did not track weather conditions, before or after the burn and on 2 September he had not gone to Doran to inspect the controlled burn, although he did observe that the paddocks were black, when he went to the hill described on the map they later received from the RFS as "no burn hill". While he was there he spoke to Mr Warner, but not about the burn.
17. It was Mr Warner who told him about the Myack fire. He then spoke to Mr Aitchison, who told him to come to Berridale to speak to Mr Woodhouse. After Mr Aitchison explained how the fire had started, Mr Fitzgerald said "This is an unfortunate and deeply regrettable act of God".
18. Mr Fitzgerald was also unaware of the risk of dead and hollow trees including their root structures, posing an ongoing risk of reignition after a fire, Mr Aitchison never having raised such a risk with him. He said that if he had been informed, he would have instructed Mr Suthern to create "virtual islands around any tree or patches of trees", to mitigate that risk.
19. Mr Fitzgerald also said that being a commercial pilot and having no experience as a grazier, he accepted and relied on the expertise of the RFS, in relation to the conduct of the burn and had no reason to know that it was necessary to pour water and fire retardant into a hollow tree, to ensure there was no possibility of reignition.
20. In his report, Mr Woods said that landowners had a responsibility to monitor their property after completion and handover after a burn, but that this was problematic for absentee landowners. The result was that fire services had to have a formal handover arrangement in which advice and information about key areas of risk was provided.
21. In the joint report Mr Woods said, that in his experience, property owners who do not have land management experience were rarely aware of the risks associated with fire on rural land and their responsibilities to address that risk; and that they relied heavily on the fire service providing expertise and guidance.
22. Professor Adams, however, said that in his experience, including as a once novice landowner, he was acutely aware that it was the responsibility of landowners to inform themselves of their obligations and to meet them.
23. On all of this evidence I am satisfied that despite their ignorance it was always open to Mr Fitzgerald and Ms McCoy to make enquiries of the RFS, as to what they needed to do, to satisfy the responsibility for the burn which they had acknowledged in writing. They could thereby have learnt of the risk which materialised.
24. On Mr Knowles' evidence an enquiry of him would also have established that he wrongly understood that Mr Suthern was also patrolling Doran, where he was often present. Mr Fitzgerald and Ms McCoy would also have learned that a tree that actually posed a foreseeable risk of fire to Myack had been identified and what inspections were proposed to monitor that tree, which had been left standing.
25. But Mr Fitzgerald and Ms McCoy did not take any steps to acquaint themselves with the risks which conducting this enormous burn on their property posed to others, either during the burn or afterwards. They simply left all potential risks to be dealt with by the RFS, without making any enquires at all about what had been done, what risks had to be dealt with and how they were being managed.
26. Given the duty which they owed Mr Woodhouse, they being ignorant of the risks which the burn posed and having taken no steps to acquaint themselves with those risks, cannot alter that they were foreseeable risks, of which they ought to have been aware.

Reasonable precautions were not taken by the RFS or Mr Fitzgerald and Ms McCoy

1. In resolving what is in issue, it is also necessary to identify the precautions which a reasonable person in the position of Mr Fitzgerald and Ms McCoy would have taken, viewed prospectively, to prevent the harm that could result from fire spreading to Myack, from materialising.
2. In determining what precautions a reasonable person in the position of Mr Fitzgerald and Ms McCoy would have taken, their circumstances must be taken into account. They included that Mr Fitzgerald and Ms McCoy were inexperienced, absentee landowners who understandably turned to the RFS: a statutory body with the authority, knowledge, resources and manpower, to undertake the controlled burn which they needed to control a significant weed infestation on over 500 acres of their property. Also necessary to take into account, however, is that they knew the work would be undertaken by volunteers, at no cost to them and that they had acknowledged the obligations which they had, in relation to the risk which the use of fire posed.
3. The likely seriousness of the harm from an escaped fire from Doran, if the burn was not properly extinguished and escaped unhindered to Myack must also be taken into account. It was plainly very significant. As discussed in Weber at [53], "Uncontrolled bush fires in south-eastern rural Australia are an annual occurrence; they may involve loss of life, the destruction of property and significant environmental damage."
4. Also to be considered is that it is a matter of common sense that if a tree is left smouldering after a burn of the kind conducted on Doran, there is a real risk of re-ignition, which has to be guarded against by the taking of precautions, given the significant damage that may result if the fire reignites without detection.
5. For the following reasons, I am satisfied that reasonable precautions which were available and ought to have been taken included: 1. dowsing the tree with water mixed with fire retardant; 2. when the tree was identified as posing an ongoing risk, knocking it over, exposing the roots, dowsing and reburying them; 3. inspecting the tree on the morning of 5 September, when high fire risks prevailing that day became known; and 4. Mr Fitzgerald and Ms McCoy making enquiries to ascertain what ongoing fire risks had been identified; what precautions were being taken to deal with those risks; that they were being taken by the RFS and if not, to take those precautions themselves.

Control Lines

1. One precaution taken to guard against the risks posed by the burn was the control lines which Mr Suthern put in place. His evidence in cross examination was that they were the result of decisions which he made, not in consultation with either of Mr Fitzgerald and Ms McCoy or other members of the RFS. Mr Knowles' map of Doran, used during the burn, merely recorded the lines Mr Suthern had installed. It showed that no control lines were placed around the tree, which Mr Knowles identified during the burn posed a risk of reignition, despite what Mr Suthern himself knew about the risk which the tree could pose.
2. That evidence is consistent with neither Mr Fitzgerald and Ms McCoy, nor anyone from the RFS considering whether reasonable care required that a control line be placed around that tree, which on Mr Suthern's evidence would have been difficult.
3. Mr Suthern's evidence was also that he had earlier been engaged by Mr Fitzgerald and Ms McCoy to use his equipment on Doran for rabbit eradication. He then saw rabbit burrows around that tree. He also said that his experience was that fire burning inside such hollow trees was a common problem in the Monaro; such trees being able to burn for "weeks and weeks" after a fire; and that rabbit burrows around the root system of such trees helped fires burn for even longer, because they allowed air to get in and sometimes the burrows ran along and even through roots.
4. Despite this, neither before nor during the burn, were any steps taken to prevent the tree catching light, or after the burn, to prevent it from continuing to smoulder, other than Mr Knowles' inspections. No control lines were erected around the tree and after the burn it was not dealt with in the way Mr Suthern described he had done in other cases, by pushing the tree over to expose the roots and after the fire had been put out, to rebury the roots with fresh dirt.
5. Mr Suthern's evidence in cross examination was that he did not cut control lines around the tree because that was difficult, given the rocky outcrop there, but it would have been easier to knock the tree over. On 20 August he was working on the other side of the fire, not in the vicinity of the tree. He was also present on 28 August and could have knocked the tree over then, if that had been decided to be necessary, but there was no discussion about that.
6. It follows that while control lines around the tree may not have been a reasonable precaution to take, given the difficulties Mr Suthern described, but knocking over the tree was. This conclusion was supported by other evidence.

Reasonable precautions that the RFS failed to take

1. The lay evidence included that of Mr Hain, a grazier and member of the RFS since 1974, who had assisted in many prescribed burns, but not that undertaken on Doran. His affidavit evidence was that he had seen fires continue within hollow trees and their root systems for days or weeks after a fire and that they could not be put out simply by dousing the tree with water. In his experience, either the water had to be mixed with fire retardant, or the tree had to be pushed over in the way Mr Suthern described. He was not required for cross examination.
2. Neither of these reasonable precautions were taken.
3. Mr Jardine, a retired grazier who has been an active RFS member for 51 years during which he was a Brigade Captain for 7 and a senior deputy for 30 and helped fight the fire on 5 September. His evidence was that he was also very aware of the problem posed by fire continuing to burn in hollow trees after the main fire has been extinguished, including below ground level, for months.
4. In his experience, to ensure that they would not reignite, such trees either had to be wetted down with a wetting agent and then checked, or if possible by pushing them over with a dozer and wetting the roots. Otherwise, unless on the spot on a bad day, there was a good chance that the fire would get going again.
5. None of those reasonable precautions were taken, even though 5 September was a bad day.
6. Mr Bottom, also a grazier who had joined the RFS in the 1970's and also fought the 5 September fire, had also experienced unextinguished fires in hollow trees continuing to burn for weeks and months. He said they posed a risk that embers could be fanned by strong winds, which suddenly caused flames to ignite and to spread from the relatively contained environment inside the tree.
7. It was also Mr Aitchison's experience that dead and hollowed trees and their root structure posed a significant risk of re-ignition after a fire had been contained. It was thus standard RFS practice to inspect such trees and if there was any doubt about the tree having hollow pockets which could contain embers, to push the tree over, to expose the root ball.
8. Despite Mr Knowles having identified this tree as posing such a risk, this reasonable precaution was not taken.
9. Mr Aitchison also said that timbered areas in the Monaro are sparse and most trees are old and defective, so that to avoid unnecessarily destroying viable trees, judgement had to be exercised on the basis of which trees had characteristics posing the most significant risk. Consistent with the common view of the experts, in his experience embers could remain dormant inside the tree for weeks or months if left standing, so factors to be considered in deciding whether to push a tree over were their location, with trees in exposed areas posing greater risk of reignition and fire being spread by wind. Trees close to a fire's edge should also be knocked down, without which it was not possible to be certain they posed no risk of reignition.
10. After the Myack fire the RFS reviewed what had happened and found no fault with the steps which had been taken and even when he gave his evidence, Mr Aitchison was satisfied with what had been done.
11. But on those criteria, a reasonable precaution which should have been taken in relation to the tree which Mr Knowles identified and later inspected, was to knock it down, old and hollow as it was, standing on a ridge near the border of Myack in an area known to be a wind tunnel.
12. Mr Aitchison also said that any suspect trees left standing should be kept under ongoing inspection, "until certain that no risk exists" and until that certainty was achieved, they should be monitored in high fire risk weather characterised by strong warm winds and low humidity, to ensure that any reignition could be considered, before it spread. Because this could be difficult when there were a large number of such trees over a large area, surveillance could be undertaken by aircraft or from fire towers, when ground monitoring was not possible.
13. While the latter was not necessary in this case, on that evidence, another reasonable precaution which should have been taken on 5 September was to inspect the hollow tree left standing with only one other old tree on the ridge near the border of Myack, where it was exposed to the unseasonal warm, high winds which prevailed that day.
14. Mr Knowles' July 2013 statement established that he had actually identified that the tree which re-ignited posed such a risk. That was why he inspected it after the burn on a number of occasions, but it was not knocked over like another tree was knocked over by Mr Suthern on 21 August, when it was too wet to undertake the second part of the planned burn.
15. The decision to knock the other tree over on 21 August was made after a containment line was placed around that tree and it was then extinguished. That was not done in relation to the tree which reignited on 5 September.
16. In cross examination Mr Knowles explained by reference to his diary entries that he had patrolled the site on 23 and 25 August. The second burn was undertaken on 28 August and he patrolled again on 31 August and 3 September. He also understood that Mr Suthern had patrolled the site of the burn, but that was not Mr Suthern's evidence.
17. On 3 September Mr Knowles said that he looked for hotspots on the north side of Wolfram Hill, which he explained had quite a bit of old heavier timber which had fallen in an area where the fire had encroached and which he had wanted to ensure had been extinguished. He explained that boggy areas of Doran and rabbit warrens precluded him driving across some paddocks, but it was evident from the containment lines which he drove along, that there was "no fire activity in a lot of those areas". But he did not patrol the area where the tree was left standing on the ridge that day.
18. The checks which Mr Knowles conducted involved placing the back of a gloved hand into the soil at the base of the tree to feel the tree and doing a visual check of the tree. He explained that this was a common practice to try and detect any heat around the base of the tree; especially if it had a hollow in it. When he conducted the same test on 5 September, after the Myack fire was extinguished, he felt hot ground. The proper inference from that evidence and how the tree exploded when it was doused was that if such a check had been conducted earlier that day, it is likely that the tree would not have been found to be "benign", as Mr Knowles had found in his earlier inspections.
19. In his report Professor Adams explained that it was physically impossible to keep monitoring indefinitely, every individual tree on a property, but ongoing monitoring was the least costly and most important action for landowners. This also confirms that a reasonable precaution which should have been taken was to inspect the tree again on 5 September.
20. Mr Knowles explained the handover practice which he usually followed with landowners after a prescribed burn, which involved driving across the fire ground, showing them what had been burned, explaining what measures had been taken to prevent reignition of the fire and pointing out potential trouble spots that they might keep an eye on, in which event they should call 000.
21. Mr Knowles said he had not undertaken a handover before 5 September and had left further patrols to Mr Suthern, who he understood had an arrangement with Mr Fitzgerald and Ms McCoy. But Mr Suthern's evidence was that they only entered a share farming agreement after the fire, in 2013. He did not know them before he was engaged to install the control lines for the burn and did not patrol Doran after the burn.
22. That there had been no handover also supports the conclusion that another reasonable precaution which should have been taken was to inspect the tree on the morning of 5 September, when the unusual weather conditions heightened the risk that it could reignite. That was because no fire break had been built around it to protect it from igniting during the burn; it had not been knocked over and extinguished afterwards; fire in the roots of such trees were known to be difficult to detect; they were known to be able to smoulder undetected, for weeks or months later; and the tree had not been inspected since August.
23. Observing the countryside in the direction of Myack and Doran with binoculars from Mr Knowles' veranda in the circumstances prevailing on that day, in accordance with the practice he described, of locals "watching over their own patch", fell far short of what reasonable precautions then required, to prevent the obvious risk of that tree reigniting in those extreme weather conditions, from materialising and damaging Myack.

Reasonable precautions Mr Fitzgerald and Ms McCoy failed to take

1. As I have already discussed, the evidence also establishes that a reasonable person in the position of Mr Fitzgerald and Ms McCoy, having sought and obtained the RFS's agreement to conduct a dangerous burn on Doran as they did, for which they acknowledged their ongoing responsibility, ought to have themselves taken available precautions. They included firstly, ascertaining what precautions needed to be taken to deal with the ongoing risk of the fire reigniting; secondly, establishing that they were actually being taken by the RFS; and thirdly, acting themselves to ensure that they were taken, if the RFS did not, or could not do so.
2. On the evidence, these would also all have been reasonable precautions to take.
3. There was also an issue as to whether Mr Fitzgerald and Ms McCoy had any arrangement in relation to the burn and monitoring Doran with Mr Warner, an RFS volunteer, who in 2012 had been engaged to do various jobs on Doran, including weed spraying, road works and rabbit baiting, to be involved after the burn. Ms McCoy also said that he had been present during the meeting with Mr Aitchison, but Mr Aitchison did not remember him being there and Mr Warner denied having anything to do with organising the burn.
4. As I have explained, Mr Warner was not required for cross examination and so his evidence, corroborated as aspects of it were by Mr Aitchison, must be accepted. Mr Fitzgerald and Ms McCoy seem to have contemplated Mr Warner being engaged to provide his assistance after the burn, but they did not do so. On that evidence, engaging Mr Warner would have been a way by which they could have met their obligations to take reasonable precautions.

Causation

1. The onus also fell on Mr Woodhouse to prove causation: Civil Liability Act, s 5E. Section 5D also applies, providing: "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."
2. There is no issue that Myack was extensively damaged by the fire which I have explained spread from the tree which reignited, as the result of the failure to take the reasonable precautions which I have discussed.
3. There were reasonable precautions which were available to be taken, which could have prevented the spread of fire. They included firstly, knocking the tree over in the way in which Mr Aitchison and Mr Suthern described. Secondly, having identified it as a tree which needed to be observed after the burn, given the propensity of the root systems of such trees to continue smouldering undetected, because of the difficulty of identifying this in the absence of equipment not then available to the Berridale brigade, checking the state of the tree on 5 September when the weather conditions were such that it was at heightened risk of reignition. If these steps could not have been taken by the RFS, they ought to have been taken by Mr Fitzgerald and Ms McCoy who also failed to take the other reasonable precaution which I have explained.
4. The scope of the duty must be assessed prospectively: Hallmark at [35]. But on all of that evidence, there can be no question that causation has been established, the failure to take these precautions having resulted in the materialisation of the harm and it being appropriate in all of the circumstances which I have discussed, for the scope of Mr Fitzgerald's and Ms McCoy's liability to extend to the harm which Mr Woodhouse suffered.
5. Contrary to the case pressed for the defence, taking such precautions would undoubtedly have helped prevent the spread of fire to Myack.
6. As discussed in Hargrave v Goldman (1963) 110 CLR 40 at pp 71-72; [1963] HCA 56 the law has long imposed a duty to exercise reasonable care on the owner of land upon which there is a fire of which the owner knows or ought to know, "if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished." Further: "Of course, if the fire were brought by him upon his land - in the sense of being started or intentionally kept alight there by him or anyone for whose acts he was responsible - his duty would not be merely to take reasonable care: it would be the strict duty of Rylands v Fletcher."
7. Their duty having been breached as it was after they arranged to have 550 acres of Doran burnt as they did by RFS volunteers and causing Mr Woodhouse the considerable damage which he suffered, because reasonable and available precautions were not taken to prevent the fire reigniting, Mr Fitzgerald and Ms McCoy must be held responsible for the harm which he suffered.

Proportionate liability

1. Also in issue, however, was whether Mr Fitzgerald and Ms McCoy and the RFS were concurrent wrongdoers as defined in s 34(2) of Part 4 of the Civil Liability Act, with the result that under s 35, their liability would be limited to the proportion of Mr Woodhouse's damage "that the court considers just having regard to the extent of" their responsibility for his damage. The sections provide relevantly: "34 Application of Part (1) This Part applies to the following claims (apportionable claims) - (a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury, (b) …. (1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). (2) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. (3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1). (3A) … (4) …. (5) (Repealed) 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim - (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss, and (b) the court may give judgment against the defendant for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim - (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings - (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise."

The parties' cases

1. Mr Woodhouse contended that Part 4 of the Civil Liability Act and these sections did not apply, it being settled that a concurrent wrongdoer must be a wrongdoer at law: Chandra v Perpetual Trustee Victoria Limited [2007] NSWSC 694 at [110] and Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367.
2. Further, that the RFS could not be a concurrent wrongdoer, it having no legal liability to him for its acts and omissions in the conduct of the burn and its subsequent monitoring of Doran: s 128 Rural Fires Act. If Part 4 did apply, the effect of s 39 was to make Mr Fitzgerald and Ms McCoy liable for the RFS.
3. It was the defence case that given that the RFS was not a party to the proceedings, no full consideration could be given to any potential claims which Mr Woodhouse may have against it.
4. What had rather been undertaken was an examination of its factual contribution to Mr Woodhouse's loss, that being the relevant enquiry: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10. Thus any damages ordered against Mr Fitzgerald and Ms McCoy were limited to the "amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss: s 35(1) Civil Liability Act.
5. Reliance was also placed on Bird v Ford [2013] NSWSC 264, where I concluded that "It is the extent of a defendant's responsibility for the damage or loss in question, which dictates the judgment which may be given against that defendant. Under s 35(1)(b), judgment may not be given against a defendant for more than that amount, irrespective of whether or not the plaintiffs could recover the balance from a concurrent wrongdoer." at [254].
6. It was argued for Mr Woodhouse that what was there said, was not to the contrary of what had been decided in Milanex.

Mr Fitzgerald and Ms McCoy and the RFS were concurrent wrongdoers

1. Section 39(a) of the Civil Liability Act provides that nothing in Part 4 "prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable." Mr Woodhouse does not claim that Mr Fitzgerald and Ms McCoy were vicariously liable for the acts and omissions of the RFS. Their liability arose from the breach of their non-delegable duty.
2. I have already discussed the operation of s 128 of the Rural Fires Act and s 43A of the Civil Liability Act. That the RFS may not be liable to Mr Woodhouse for its negligence does not preclude it from being a "concurrent wrongdoer" as defined in s 34, its acts and omissions having caused, whether independently of Mr Fitzgerald and Ms McCoy or jointly, the damage that Mr Woodhouse suffered.
3. In Chandra Bryson AJ discussed why particular persons were concurrent wrongdoers, given their involvement in causing the damage and others were not, having owed the plaintiff no duty of care for which they could be liable and others not having breached their duty.
4. In Milanex it was held at [94] that: "As Perpetual submitted, "concurrent wrongdoers" within the meaning of Part 4 Civil Liability Act are people who are, or at least were, liable to a plaintiff (who is advancing an apportionable claim) in respect of the same loss suffered by that plaintiff (St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245; (2009) 25 VR 666 at [64]). It is not however necessary that all concurrent wrongdoers be parties to the proceedings (see s 35(4))."
5. A similar view was taken in Utility Services Corporation v SPI Electricity Pty Limited (2012) 35 VR 628; [2012] VSCA 158.
6. In Hunt & Hunt Lawyers it was observed, however, at [47]: "The word "caused", in a statutory provision in terms similar to s 34(2), has been read as connoting the legal liability of a wrongdoer to the plaintiff [70]. The language of liability is used in contribution legislation [71], but not in Pt 4 of the Civil Liability Act. Nevertheless, it would usually be the case that a person who is found to have caused another's loss or damage is liable for it. References to the liability of a wrongdoer should not, however, distract attention from the essential nature of the enquiry at this point, which is one of fact."
7. Applying what was there held, as I consider it must be, given the acts and omissions of the RFS and their contribution to the damage which Mr Woodhouse suffered, it must be concluded that it was concurrent wrongdoer under s 34, even if it would not be liable to Mr Woodhouse for its wrongdoing, given the operation of either s 128 of the Rural Fires Act or s 43A of the Civil Liability Act. This is one of those unusual cases contemplated in Hunt & Hunt Lawyers, where someone who the evidence established caused loss or damage is not legally liable for that wrongdoing, but is still a concurrent wrongdoer, for the purpose of s 34.

Amount of apportionment

1. As explained in P & M Quality Smallgoods at [67], even in the case of a non-delegable duty, the apportionment of responsibility for damage involves a comparison of culpability. That is, the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. The whole of the conduct of each negligent party must thus be comparatively examined: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34.
2. The defence case was that if negligence was found, any damages apportioned to Mr Fitzgerald and Ms McCoy would be not more than nominal, in all of the circumstances I have discussed.
3. I do not agree, even though it must be accepted that Mr Fitzgerald and Ms McCoy had no control or influence over how the RFS undertook the burn and its later monitoring.
4. Nevertheless, in my view, a reasonable person in the position of Mr Fitzgerald and Ms McCoy, given the acknowledgement which they had given, would not have simply accepted the assistance of the RFS and its volunteers at no cost, in the expectation that they would undertake all necessary post burn monitoring of over 550 acres of Doran, to guard against the real risk of the fire reigniting and spreading to adjoining properties. Rather, such a person would have taken available steps to understand the ongoing risk of reignition which continued after the burn; what precautions were to be taken by the RFS to guard against them; to ascertain that they were being taken; and if they weren't, to themselves take precautions to deal with the ongoing risks.
5. They did none of those things. Mr Fitzgerald and Ms McCoy's acts and omissions having also contributed as they did to Mr Woodhouse's damages, the just apportionment of these concurrent wrongdoers' responsibilities, could not result in only a nominal apportionment on their part.
6. I am also satisfied that the apportionment must, however, reflect the greater contribution of the acts and omissions of the RFS, to the damage which Mr Woodhouse suffered. That flows from its statutory role and what it undertook, knowing that Mr Fitzgerald and Ms McCoy were absentee landowners who would not be present themselves to deal with the risk of the fire reigniting after the burn; not having communicated with them after the burn, about the risk of reignition which had been identified and how it was to be monitored; not inspecting the tree on 5 September, despite the unseasonal high fir risk which existed that day and the tree having been identified as posing a risk of re-ignition, a risk well known to be difficult to detect and able to continue, for weeks and even months after a burn .
7. In my assessment the just apportionment between these wrongdoers results in Mr Fitzgerald and Ms McCoy bearing responsibility for 35% of Mr Woodhouse's damage.

The parties' cases

1. Mr Woodhouse relied on the evidence which had established negligence, to submit that he had also made out a case in nuisance, relying on the principle discussed by Windeyer J in Hargrave v Goldman at p 60: "In nuisance, liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land."
2. In Gales Holdings Pty Limited v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 it was observed at [131]-[132]: "A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman [1963] HCA 56; 110 CLR 40 at 59-61). There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person's enjoyment of land occupied or owned by that other person, unless the first person's conduct involves no more than the reasonable and convenient use of its own land (Hargrave v Goldman at p 62)." "That is to say, nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. However, an owner or occupier of land is not an insurer. There must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore [1982] HCA 71; 149 CLR 480 at 487-488).at [132]"
3. Again the defence contended that the pleaded case had not been established. What was pleaded was: "Nuisance 19 The purpose of the defendants in undertaking weed reduction by on Doran by means of the Fire constituted a use of that land. 20 The defendants knew, or ought to have known, that the Fire constituted a source of potential nuisance to Myack. 21 By the terms of the Request for Assistance, the defendants: a. engaged the RFS, as their agent to start the Fire; b. engaged the RFS as their agent to undertake limited management of the Fire; and c. agreed with the RFS that they maintained responsibility for preventing the spread of the Fire. 22 Under the terms of the Request for Assistance, from 31 August 2012, the defendants adopted the Fire as a source of nuisance. 23 The spread of fire from Doran to Myack constituted an act of nuisance which could have been avoided by the taking of reasonable care by the plaintiffs. Particulars The plaintiff repeats paragraph 14. 24 The nuisance caused by the spread of fire from Doran to Myack on 5 September 2012 resulted in damage and loss to the plaintiff's property as particularised in paragraph 16. 25 The damage and loss sustained by the plaintiff as a result of the spread of the Fire onto Myack on 5 September 2012 was as a result of the acts and omissions of the defendants as pleaded and the plaintiff repeats paragraph 14 in relation to that nuisance."
4. The defence was that the claim in nuisance could not succeed because there was no evidence of facts, matters or circumstances from which Mr Fitzgerald and Ms McCoy ought to have known of the nuisance: Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344. Nor was there evidence that they failed, to take reasonable measures, within a reasonable time to bring the potential or actual nuisance to an end: Robson v Leishcke (2008) NSWLR 98.
5. Nor could they have adopted or continued any nuisance or potential nuisance because they were not in occupation and the RFS was in control of Doran, even as at 5 September. In those circumstances they were not "occupiers" and neither created or continued any state of affairs created by the RFS. Further, even if they were occupiers, the fire was not an actual nuisance, the prescribed burn not having interfered with Myack and thus at its highest being only a potential source of nuisance. Nor was there evidence that they had actual or constructive notice of that potential nuisance.

Nuisance was established

1. The defence case may not be accepted.
2. Mr Fitzgerald and Ms McCoy were the owners of the property. It was they who applied to the RFS for assistance with the fire which they wished to use on Doran, in order to eradicate weeds and dry vegetation on over 550 acres of their land. On their evidence there can be no question as to their understanding that such a fire was a potential source of nuisance. That is why they sought the assistance of the RFS, not only in undertaking the burn, but also with post burn monitoring.
3. That by agreeing to provide that assistance the RFS took "control" of Doran, does not follow. To the contrary Mr Fitzgerald and Ms McCoy gave the RFS their written acknowledgement of their responsibility during and after the burn. That is entirely inconsistent with them having ceded their control of Doran to the RFS.
4. In those circumstances, while inexperienced landowners, having decided to undertake such a burn, Mr Fitzgerald and Ms McCoy ought to have known that a fire left smouldering in the roots of a tree could reignite, posing an ongoing risk that fire could spread to a neighbouring property. That they had such an understanding was consistent with Ms McCoy's evidence as to her experience of burns which her father had conducted and the concern which she and Mr Fitzgerald shared, to have the RFS undertake post burn monitoring, given that both she and Mr Fitzgerald proposed to be absent from the property during and after the burn.
5. Nor can the defence submission that enquiries of the RFS would not have revealed any ongoing fire risk after the burn be accepted, given the evidence of Mr Aitchison, Mr Knowles and Mr Bottom. Nor can the submission that Mr Fitzgerald and Ms McCoy could not have suspected that any post burn fire would breach the control lines which had been put in place. They had not been involved in or even made themselves aware of what Mr Suthern had done. But on his evidence, as I have explained, the lines he installed did not protect fire from spreading to Myack, if it reignited in the tree, which Mr Knowles had identified as posing a risk of reignition, because no control line was put around the tree and yet it was not knocked over, or adequately inspected after the burn.
6. Had Mr Fitzgerald and Ms McCoy made any enquiries of the RFS, as they should have, given the acknowledgement which they had given, as to what control lines had been put in place and what the risk of the fire reigniting was, that would also have revealed the nature of the ongoing risk which the tree on the border of Myack posed and what had been done and was being done to deal with that identified risk.
7. Mr Woodhouse suffered considerable harm when fire spread to Myack, as the result of the breach of the non-delegable duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse.
8. Given the negligence which has been found, that the fire which spread to Myack resulted in an unreasonable interference with Mr Woodhouse's enjoyment of his property, cannot be doubted.
9. While the fire was not spread deliberately to Myack, the evidence establishes that by their acts and omissions Mr Fitzgerald and Ms McCoy permitted the nuisance which resulted in the damage Mr Woodhouse suffered. That they discharged any positive duty which they owed him was not established.
10. While reliance was placed by the defence on Sutherland Shire Council v Becker, Bryson JA there referred to Sedleigh-Denfield v O'Callaghan & Ors [1940] AC 880, where it was observed at 904-905: "The gist of the present action; however, is the unreasonable and unjustified interference by the defendants in the user of their land with the plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith, and in a genuine belief that it is justified. Negligence here is not an independent cause of action, but is ancillary to the actual cause of action, which is nuisance. ... The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant, by himself or those for whom he is responsible, has created what constitutes a nuisance, and if it causes damage, the difficulty now being considered does not arise; but he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that, with ordinary care in the management of his property, he should have realised the risk of its existence. ... if the defendant did not create the nuisance, he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became, or should have become, aware of it."
11. In Rickard & Ors v Allianz Australia Insurance Ltd & Ors (2009) 54 MVR 214; [2009] NSWSC 1115, after again referring to Sedleigh-Denfield, Hoeben J observed: "As Lord Wright made clear in Sedleigh-Denfield, constructive knowledge for the purposes of nuisance does not equate with foreseeability in negligence. The test is not whether a risk is farfetched or fanciful, but whether there is evidence of facts, matters or circumstances from which the defendant ought to have known of the nuisance. In this case that means "ought to have actual knowledge of the fact of water flowing directly from the driveway across the highway", not, "ought to have foreseen the risk that water might flow directly from the driveway across the highway if a sufficiently severe rainfall event were to occur at some time in the future" at [188]
12. In this case the risk of fire escaping during and after the burn which Mr Fitzgerald and Ms McCoy had arranged to have the RFS conduct on Doran was not only apparent, but known.
13. As the result of the negligence established that risk materialised, damaging Myack with the result being an unreasonable and unjustified interference with Mr Woodhouse's property, for which Mr Fitzgerald and Ms McCoy were responsible, that constituting a nuisance for which they are also responsible. That precludes the conclusion that the burn and how it was monitored afterwards involved "no more than the reasonable and convenient use" of their land.

Contributory negligence

1. Section 5R of the Civil Liability Act applies to the question of contributory negligence. It provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
2. Section 5R requires that the Court apply the provisions of ss 5B and 5C in determining whether contributory negligence has been established. That requires whether Mr Woodhouse took reasonable care of his own property to be determined, taking into account the statutory prescriptions in s 5B. The standard of care is that of a reasonable person in his position, determined on the basis of what he knew: Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [162].

The parties' cases

1. The defence case was that if the risk of the tree reigniting was foreseeable, as Mr Woodhouse claimed, it was equally foreseeable by him once he became aware that the burn had been conducted. Despite this he took no steps to ascertain what had been done to deal with that risk; even on 5 September, when he knew about the weather conditions which heightened the risk of the fire reigniting and that his mother, who was suffering from dementia, was home alone at Doran that morning. Nor did Mr Woodhouse take any steps to monitor Myack, where it bordered Doran that day.
2. Mr Woodhouse contended that there had been no contributory negligence on his part, he having been given no notice of the burn, or of the steps taken to extinguish the fire used and also having no reason for thinking an inquiry of the RFS was necessary, or to seek its advice.

Contributory negligence is established

1. What is required is a "determination whether a person has taken reasonable care for the person's own safety": Grills at [162].
2. While neither the RFS or Mr Fitzgerald and Ms McCoy notified Mr Woodhouse before the August burn was conducted on Doran, he did become aware that it had been undertaken in late August and then spoke to Mr Aitchison.
3. But it was only on the afternoon of 5 September that Mr Woodhouse went to Myack, despite having heard of the high fire danger warning during the course of the morning. By the time he arrived his mother was no longer there and the fire was well alight and being fought by RFS volunteers, who were only able to extinguish it after much damage was caused.
4. Mr Woodhouse was an experienced grazier, unlike Mr Fitzgerald and Ms McCoy. It is unlikely that he did not know of the risk of re-ignition which existed if a burn such as that he learned had been undertaken on Doran was not properly extinguished. If he did not, that was a risk of which he unarguably ought to have known.
5. Given the nature and severity of that risk, Mr Woodhouse ought also to have taken reasonable and available precautions to guard against it materialising. They included asking the RFS if they had identified any ongoing risk which had to be monitored after the burn; how the monitoring was being undertaken; and on 5 September, when the risk of reignition was increased by unusual weather conditions, what monitoring was being undertaken that day.
6. On 5 September he would have learned that the burn site was not being monitored and could himself have taken steps to monitor his property on its border with Doran, in order to call out the RFS if it needed to deal with any reignition. His failure to do so in the circumstances was also causative in the damage which resulted, given that the fire was only noticed by Mr Knowles when he saw smoke coming from the vicinity of Myack and Doran, at a time when it may sensibly be inferred, it was well alight.
7. I am satisfied that his contribution must be assessed at 10%.

Quantum

1. As I have explained, there is no basis in the evidence for the conclusion that Mr Woodhouse owned the contents of the homestead which he finally pressed, or even that in September 2012 he had possession of them. The case finally pressed was that possessory title was sufficient, but he did not live at the homestead which his mother and sister then shared. How he, rather than they, had possession of the contents is not apparent.
2. Also in issue was whether Mr Woodhouse had established a basis for the order which he seeks for the cost of rebuilding the homestead, the defence case being that he had not done so and was entitled only to nominal damages.
3. It is settled that damages can be "inherently difficult to quantify" because they involve "estimating a risk, measuring a chance, or predicting future uncertain events": Troulis and Anor v Vamvoukakis [1998] NSWCA 237 at [30]. Thus the court may have to do the best it can, to assess damages on the evidence led.
4. But there is a difference between cases where a plaintiff cannot adduce precise evidence of loss and those where the plaintiff was able to do so, but did not: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 at [38].
5. Mr Woodhouse relied not only on Mr Froeschl's opinion, but also on what the experts agreed in the joint report, which was that the reasonable cost of replacing the Myack Homestead at December 2012 was $791,938.22 as per the Sedgwick Quantity Surveyor Report of 02 July 2019. Further, that the price index increase of 22.84%, as per Rawlinsons Australian Construction Handbook 2020, could be applied to the December 2012 cost with the result a cost as at March 2020 of $972,816.91.
6. The experts explained why they had not agreed other matters, but did not explain why they had agreed these figures. That could have been explored had they been required to give oral evidence as the other experts were, but they were not.
7. The defence case was that Mr Froeschl's report did not establish the "relevant characteristics of the house". But as I have explained, the submission that the only evidence of those characteristics was the one builder's quote attached to his report, cannot be accepted.
8. Part of the structure of the homestead was left standing, so that its footprint was known and there are photographs of its exterior and interior, as well as evidence about the remediation work already undertaken on the homestead and its costs, as we;; as a quote for the remaining work. There are also opinions which the experts expressed.
9. The defence did not finally tender the reports of their quantum experts, but the joint report was in evidence. There Mr Froeschl, Mr Webb and Mr Gallagher agreed that "the reasonable cost to replace the Myack Homestead at December 2012 is $791,938.22 as per the Sedgwick Quantity Surveyor Report dated 02 July 2019."
10. While undoubtedly more detailed evidence could have been led about the characteristics of the house, I am satisfied that the evidence was sufficient to require, as Sackar J was in Camellia Properties Pty Ltd and Ors v Wesfarmers General Insurance Ltd [2013] NSWSC 1975 at [395], on which the defence relied, that I come to a conclusion about the cost of reinstatement of the homestead.
11. Given all of the evidence, this is not a case of failure of proof by the party carrying the onus, where guesswork would have to be substituted for evidence, discussed in Troulis at 13-14. Nor is there an absence of the raw material to which good sense may be applied, so that justice does not dictate that a figure should be plucked out of the air, as was there also discussed.
12. The defence also contended that given the paucity of primary evidence on which the experts opinions were based, it was unsurprising that "the underlying evidence of what solution they purported to cost is not before the Court" and that the process of joint conferencing and preparation of the joint report which had resulted in an agreed amount, had not relieved Mr Woodhouse of the burden of proving what the costed item, the homestead, comprised and that what had been costed, was what had been lost: Barescape Pty Ltd atf the Vs Family Trust & Ors v Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust & Anor (2011) 81 NSWLR 345; [2011] NSWSC 1002 at [4].
13. There Black J referred to r 31.26 of the Uniform Civil Procedure Rules which relevantly provides that a joint report "may be tendered at the trial as evidence of any matters agreed", which he observed was "permissive and not mandatory and does not require but merely permits the admission of a joint report": at [3].
14. In this case I have concluded that Mr Froeschl's report was admissible, as was the joint report, even though the defence did not finally tender their experts' reports. I am also satisfied that the primary evidence was a sufficient basis for the experts to come to an agreed costing. If they had a different view, given the requirements of the expert's code of conduct to which they had to adhere, they would have undoubtedly said so and explained why in the joint report. That they did not do so supports the conclusion which I have reached, that their assessment of the cost of rebuilding the homestead must be accepted.
15. In the result it cannot be concluded that Mr Woodhouse is entitled only to nominal damages for the homestead.
16. I am satisfied that justice requires that Mr Woodhouse receive damages in the amount that the experts agreed, apart from the contents of the homestead. The parties agreed on the calculation of damages as at 2020, if I reached this conclusion to be $1,298,036.03.
17. They must, however, be adjusted to take into account the conclusions which I have reached about the RFS being a concurrent wrongdoer and Mr Woodhouse's contributory negligence.

Costs

1. The usual costs order costs under the Rules is that costs follow the event. In this case that would be an order for costs as agreed or assessed in Mr Woodhouse's favour. If the parties seek any different order, they should approach within 7 days.

Orders

1. For these reasons there must be a verdict for Mr Woodhouse. The parties should confer and file orders reflecting the conclusions which I have reached within 7 days.
2. If there are any issues as to costs, I will hear them.

Amendments 28 April 2020 - coversheet - corrected representation 30 April 2020 - paragraph [405] - changed end of 1st sentence to "apart from the contents of the homestead." 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: 30 April 2020