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[2018] NSWSC 667
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Weber v Greater Hume Shire Council [2018] NSWSC 667 (14 May 2018)
Last Updated: 21 May 2018
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Supreme Court
New South Wales
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Case Name:
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Weber v Greater Hume Shire Council
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Medium Neutral Citation:
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Hearing Date(s):
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3-5, 10-12, 18-19, 21 April 2017
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Date of Orders:
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14 May 2018
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Decision Date:
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14 May 2018
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Jurisdiction:
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Common Law
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Before:
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Walton J
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Decision:
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In all the circumstances, the Court orders:
(1) The
plaintiff’s claim is dismissed.
(2) Subject to further orders
of the Court, the plaintiff shall pay the defendant’s costs of the
proceedings as agreed or, in
the absence of agreement, as
assessed.
(3) In the event agreement as to answers to the common
questions, the plaintiff shall file and serve a joint answer to the questions
within 21 days of this judgment. If there is disagreement as to the answer to
the common questions, the parties shall file and serve
their respective versions
of the answers within the same timeframe. The matter will then be listed for
directions, at a date to be
fixed, to resolve any disagreement as to the common
questions.
(4) In the event any application is made by the parties
as to costs such application(s) and a summary of submissions in support thereof
shall be filed and served within 21 days of this judgment. In the event of such
application(s), the Court will list the matter for
directions.
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Catchwords:
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TORTS – representative proceedings – negligence –
plaintiff suffered injury through fire – determination of
liability
– no claim for pure economic loss – ignition of fire – origins
– causation – spread or escape
of fire – common law principles
– existence and scope of duty of care – novelty of duty
–salient features
relevant to duty of care – reasonably
foreseeability – knowledge of defendant significance of harm –
relationship
– vulnerability indeterminacy – breach –
statutory conditions regarding breach of duty –s 5B Civil Liability Act
2002 – risk not insignificant – whether reasonable person would take
precautions – probability of harm – likely
seriousness of harm
– burden of taking precautions – social utility – s 42 Civil
Liability Act 2002 – statutory defence –general v specific
allocation – specific resource allocation for waste management –
no
defence made out - whether precautions were reasonable – defendant should
have adopted and implemented specific fire precautions
– breach found
– causation – whether precautions would have prevented the injury
caused by fire spread –
failure to prove factual causation –
negligence not established by plaintiff – nuisance – proprietary
rights over
affected land – unreasonable interference – in absence
of negligence defendant not liable in nuisance – claim by
plaintiff
dismissed – directions regarding common questions and costs |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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C Sappideen and P Vines (eds), Fleming’s The Law on Torts, (10th ed,
2011, Thomson Reuters)
Macquarie Dictionary (2nd ed, 1992, The Macquarie
Library)
R Balkin and J Davies, Law of Torts (4th ed, 2009, LexisNexis
Butterworths)
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Category:
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Principal judgment
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Parties:
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Sharon Patricia Weber (Plaintiff)
Greater Hume Shire Council
(Defendant)
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Representation:
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Counsel:
T Tobin SC with A Fraatz and C Nicholson (Plaintiff)
R
Sheldon SC with A Barnett (Defendant)
Solicitors:
Maddens
Lawyers (Plaintiff)
Mills Oakley (Defendant)
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File Number(s):
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2015/368036
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Judgment
BACKGROUND AND GEOGRAPHY OF THE TIP
THE FIRE
Weather Conditions
Observations and Response of Residents and Fire
Authorities
The Fire Path
The Representative Proceedings
THE PLEADINGS
Negligence
Introduction
Duty of Care
Standard of Care
Breach of duty
Causation
Loss and damage
Nuisance
Common Questions
Relief
NEGLIGENCE: IGNITION OF THE FIRE AT THE TIP
Relevant Legislation on Causation
Relevant Authority on Causation
Evidence: Point Of Origin and Cause of the
Fire
Expert Evidence
Origin of the Fire
The Cause of the Fire
Expert Evidence
Dry Lightning
Spontaneous Combustion
Residual Burn
Deliberate Ignition
Glass and Batteries
Conclusion: Origin of the Fire
Conclusion: Factual causation – Ignition of
the Fire
NEGLIGENCE: ESCAPE OF THE FIRE FROM THE TIP
DUTY OF CARE
Submissions of the Parties
The Plaintiff
The Defendant
Legal Principles: Duty of Care
The existence and scope of Duty of Care
Conclusion regarding Duty of Care
BREACH OF DUTY
Submissions of the Parties
The Plaintiff
The Defendant
Relevant Legislation on Breach
The Application of ss 5B and 5C
Statutory Defence: s 42
Preliminary observations regarding the operation of
s 5B
Precautions
Further considerations regarding s 5B: Expert
opinion as to whether the precautions were reasonable fire precaution
measures
Did the defendant take the precautions against the
risk of harm?
Precautions: Spread of Fire
Prepare and implement a fire management plan
Create and maintain an effective firebreak
Consolidate deposited waste into appropriate
areas
Remove fuel to prevent dangerous build ups
Install and maintain fire fighting equipment
Undertake inspection and monitoring of the facility
during periods of extreme bush fire risk
Other Precautions
Ensure different kinds of waste are not mixed
together
Cover waste with cover material on regular
basis
Manage green waste piles
Manage combustible material to minimise risk of
combustion
Discouraging Intruders
Conclusion: Breach of Duty
CAUSATION
Submissions of the Parties
The Plaintiff
The Defendant
Expert Evidence
Conclusion: Causation – Escape of the Fire
from the Tip
NUISANCE
Legal Principles
General Principles
Statutory Authority
Submissions of Parties
The Plaintiff
The Defendant
Conclusion: Nuisance
SECTION 43A OF THE CIVIL LIABILITY ACT
CONCLUSION
ORDERS
ANNEXURES
JUDGMENT
- HIS
HONOUR: The Walla Walla Waste/Recycling Depot was a landfill waste facility
within the municipality of and operated, as at December 2009,
by the Greater
Hume Shire Council (“the defendant”). It serviced, inter
alia, the needs of the residents of Walla Walla, a rural township in
south-east New South Wales, which lacked roadside garbage collection.
It was
referred to throughout the proceedings as the Depot, the Walla Walla Landfill,
the Walla Walla Tip and the Tip Reserve. It
shall hereinafter be referred to as
“the Tip”.
- The
matter concerns claims in negligence and nuisance brought after the ignition of
a fire in the Tip on 17 December 2009 which then
spread from the Tip. The fire
burnt through an abandoned golf course and farm lands reaching the
plaintiff’s home in Gerogery.
The fire resulted in property
damage.
BACKGROUND AND GEOGRAPHY OF THE TIP
- The
defendant was constituted under the Local Government Act 1993 (NSW)
(“the LG Act”) for a designated area (see s 219). It is a body
politic of the State with perpetual succession and
the legal capacity of powers
of an individual within the State of New South Wales (see s 220(1) of the LG
Act).
- The
defendant has a general function to provide services to the community including
waste management services (s 24 of the LG Act).
- The
process by which the defendant became responsible for the Tip may be briefly
summarised:
- (1) By s 92 of
the Crown Lands Act 1989 (NSW), the “Minister” was empowered
to establish a reserve trust by notification in the gazette.
- (2) An official
notice of Reserve 49269 at Walla Walla for the purpose of night soil depot and
rubbish depot was notified in the Government
Gazette of 24 September 1913. This
established the Culcairn Shire Council Crown Reserves Trust (“the
Trust”) under s 92.
- (3) Under s 95
of the same Act, the defendant was appointed to manage the affairs of the Trust.
The Tip was not dedicated or reserved as a Public
Reserve for the purposes of s
98 of the Crown Lands Act.
- (4) The
defendant is not the owner of the land upon which the Tip is situated. The power
and functions it possessed over the Tip was
not because it was in occupation of
the land per se, but it was an occupier of the land which constitutes the
Tip.
- The
Tip was originally operated by the Culcairn Shire Council (“CSC”).
In 2004, the CSC amalgamated with two shires, namely,
Holbrook and Hume, to form
the defendant. In the period 2004-2010, the defendant managed up to 10 waste
facilities located at Brocklesby,
Burrumbuttock, Culcairn, Gerogery, Henty,
Holbrook, Jindera, Mullengandra, Woomargama and the Tip.
- The
Tip was approximately 3 kilometres south of Walla Walla. It was located to the
west of Walla Walla-Jindera Road. The Walla Walla-Jindera
Road connected the
townships of Walla Walla and Jindera; it commenced at the corner of Commercial
Street and Walla Walla Road and
continued south through to the township of
Jindera. The Tip was accessed by an unmarked dirt road adjoined to the Jindera
Road (“the
dirt road”).
- A
road gate was erected 40 metres down the dirt road opposite the Walla Walla Golf
Course clubhouse. Beyond the road gate the dirt
road continued in a westerly
direction alongside the abandoned Walla Walla Golf Course (“the golf
course”) (disused since
2007), which was situated to the south of the dirt
road. North from the dirt road was farm land which included paddocks that
belonged
to Mr Jeffrey John Pumpa (which lay north of the Tip). The dirt road
terminated at the end of the Tip.
- The
Tip entrance was located off the dirt road. Access was sought via attendance
upon a “hut” situated directly opposite
the Tip entrance and was
approximately 150 metres from the dumping area within the Tip. The hut was
manned by a Tip Attendant, employed
by the defendant, each Wednesday and Sunday
between 2 and 5pm. The Tip Attendant collected payment and oversaw the dumping
of refuse
at the Tip. Outside those times the Tip was closed to the general
public and the road gate was padlocked. (On the evidence before
the Court it was
revealed both Messrs Maxwell David Jacob and Pumpa had keys to access the Tip.
Additionally, a spread sheet of keys
given out to people in relation to the
Culcairn, Walla Walla and Henty landfill gates was also before the Court and
titled “Master
Key System”).
- The
Tip was around 10 acres in area. A survey plan produced in 1913 shows the
dimensions of the Tip to be 2000 x 5000 links (approximately
400 x 100 metres)
(see Annexure A). The distance between the northern to southern boundaries was
around 100 metres.
- The
Tip was bounded by the golf course, as noted above, and substantial farmland.
The golf course stretched along the eastern and
southern boundaries of the Tip.
The land on which the golf course was located was owned by the Department of
Primary Industries –
Lands (formerly the Department of Lands) for and on
behalf of the Crown in right of the State of New South Wales.
- There
was also swampy depression within the eastern region of the Tip that extended
west from the adjoining golf course.
- The
land generally to the north of the Tip was known as “Townsview” and
leased by Mr Pumpa, together with his wife, Ms
Christine Pumpa. The property
consisted of residential, commercial activities and farmland. It occupied 550
acres of land. The farmland,
directly opposite the Tip, consisted of paddocks
situated alongside the north of dirt road for Mr Pumpa’s sheep. Part of Mr
Pumpa’s property also abutted the south and western boundaries of the Tip.
Mr Pumpa used the Tip from time to time and had
direct access via a gate,
situated along the western boundary of the Tip, from his property.
- The
commercial activity undertaken on Townsview consisted of a factory complex,
“Everlast tanks” (“the factory”),
and was owned and
operated by Mr Ray Reeves. The factory was approximately 400-500 metres north of
the Tip.
- Further
farmland, situated south-east of the Tip and directly bordering the southern
side of the golf course was a paddock owned by
Mr Jacob. Mr Jacob lived with his
family in Springvale which was 2 kilometres south of the Tip.
- A
combination of external (or “perimeter”) and internal fencing was
used to define boundaries between the Tip and the
adjoining properties and for
the containment of rubbish. Turning first to the external fencing, the original
dividing fence between
the golf course and the Tip, alongside the eastern
boundary of the Tip, was a combination of steel posts, barbed wire and cyclone
fencing (referred to as “a steel dropper fence”) (it remained at
2009). That same external fencing extended along the
whole of the southern
portion of the Tip. A similar combination of steel posts, barbed and cyclone
wires also extended alongside
the western boundary (hereinafter the external
fencing of the Tip shall be referred to as “the perimeter
fence”).
- Within
the formal boundaries of the Tip, there was a dumping area roughly divided into
six separate areas for the dumping and treatment
of waste. The areas were
arranged in a horseshoe shape (see Annexure B). The perimeter of the dumping
area was defined by a rural
fence, described interchangeably as a “netting
fence”, “internal fence”, “mesh fence” and
“high
fence” (hereinafter it shall be referred to as “the
netting fence”). This netting fence was around 6 ft in height
and served
for the containment of refuse.
- It
should also be noted, in this respect, by consent, the Court conducted a view of
the Tip. The Court also took a view from Mr Pumpa’s
property on Townsview
and, in doing so, undertook observation of the Tip from that location. A summary
of the view was prepared by
the plaintiff and accepted by the defendant as a
fair representation of the view undertaken by the Court. It may be noted that
that
summary contains a reference to differences between the state of the Tip
upon inspection by the Court and that which existed at the
time of the
fire.
- I
will now turn to the internal layout of the Tip, with reference to Annexure
B.
- Annexure
B is a marked up aerial photograph of the Tip; identifying the general locations
of various designated waste areas. It features
six red stickers that indicate,
by handwritten markings, the primary dumping zones for specific types of waste
within the dumping
area, namely, general waste, concrete, green waste, scrap
metal, tyres and glass.
- During
the course of evidence, further clarification was provided as to the layout. The
western end was designated for general waste,
the southern for general landfill,
and towards the east were allotted areas for green waste, scrap metal, tyres and
glass. Identification
was determined by appearance, in the absence of any
signage, and each section was generally separated by approximately 10 metres.
In
the general waste area, there was a large mound referred to throughout
proceedings as “the bund” or “the mound”
of the Tip
(hereinafter referred to as “the bund”). The bund commenced
approximately halfway between the southern and
northern boundaries, and occupied
the north-west region of the Tip. The top of the bund was not visible from
within the hut.
- The
area alongside the western, eastern and southern boundaries between the
perimeter fence and the netting fence consisted of a track
that was
approximately 3-5 metres wide. The track was designed to be graded in order to
produce a firebreak within the Tip (it was
referred to throughout the
proceedings as “the firebreak”). It was the only firebreak with the
Tip (I will return to
consideration of its preventative function, as a
firebreak, later in this judgment). There was no firebreak within the netting
fence
(i.e. the dumping area). As at December 2009, the land comprising of the
firebreak was uneven, included tall, uncut or burnt and
fully cured grasses, as
well as refuse of the nature of concrete and steel throughout it. The land could
not be traversed by machinery
so as to cut it.
- Parts
of the Tip, including areas within the dumping area, were inaccessible to
vehicles due to, inter alia, large mounds of dirt, rough terrain, dense
sections of tall grass and the swampy depression dominating the eastern half of
the Tip.
THE FIRE
Weather Conditions
- On
Thursday, 17 December 2009, the weather conditions at the Tip were typical for
the beginning of summer in south-east New South
Wales. The temperature
throughout the day ranged between 14.5-40.3 degrees Celsius and the humidity
between 8-89%. It was a day of
“extreme” fire danger with wind
traveling at 76 kilometres per hour with wind gusts up to 107 kilometres per
hour in
a north westerly direction.
- Information
from the Albury Airport weather station, which was located 33 kilometres to the
south of the Tip and was the nearest source
of calibrated weather data,
indicated the following conditions over the course of the day:
- (1) At 1.30pm
the temperature was 38.6 degrees Celsius with 11% humidity. The wind travelled
in a north-north-west direction at 35
kilometres per hour with gusts up to 54
kilometres per hour.
- (2) At 2.32pm
the temperature was 38.3 degrees Celsius with 11% humidity. The wind travelled
in a north-west direction at 41 kilometres
per hour with gusts up to 63
kilometres per hour.
- (3) At 2.46pm
the temperature was 29.3 degrees Celsius with 37% humidity. The wind travelled
in north-west direction at 76 kilometres
per hour with gusts up to 107
kilometres per hour.
- (4) At 6.00pm
the temperature was 28.6 degrees Celsius with 41% humidity. The wind travelled
in a west-south-west direction at 37
kilometres per hour with gusts up to 54
kilometres per hour.
- Additionally,
weather data was collected from the Walla Walla Post Office (“the post
office”) which included the following:
- (1) As to
rainfall in Walla Walla prior to the fire, there had been 27 mm of rainfall
between 21-23 November 2009 and 1.6 mm on 9
December 2009.
- (2) As to
“solar flux”, on 16 and 17 December 2009 there had been a reading of
33 megajoules per square metre and 23 megajoules
per square metre,
respectively.
(The data collected from the post office was
particularly relied upon by one of the experts called by the defendant in the
proceedings,
Dr Green (to which I will return later in this judgment), with
respect to his opinion as to possible causes of the fire).
Observations and Response of Residents and Fire Authorities
- Two
eye-witnesses observed the first signs of smoke and flames from the western
area: Messrs Clayton Jon Reeves and Pumpa. (By the
hearing Mr Clayton Jon Reeves
was deceased and a s 67 notice pursuant to the Evidence Act 1995 Act
(NSW) was provided to that effect. His written statement was admitted without
objection).
- At
approximately 1.35pm, Mr Pumpa was driving down the lane running on his
property, to the immediate north of the Tip, when he noticed
“a small
amount of smoke” coming from the western end of the Tip. He “saw no
flames”. Incidentally in an
earlier statement, Mr Pumpa had described
seeing “black smoke bellowing from the rubbish tip” from his
driveway around
that same time. However, that difference in description has no
particular significance.
- Mr
Pumpa was cross-examined and re-examined as to the location of the smoke that he
observed. During the course of giving evidence
he refined his initial
observation, with respect to location, to the south-western corner within the
Tip. This was reflected in his
marking of Ex 1, with which he drew a blue circle
to the south-west of the concrete dumping zone (signified by a red sticker
marked
“concrete” in Annexure B). At the view undertaken by the
Court to Mr Pumpa’s residential property on Townsview,
it was confirmed
that it was possible to see the Tip from his property.
- The
first triple-0 call reporting the fire was at 1.38pm recorded in the Incident
Log. The call was made from the resident of 64 Commercial
Street, Walla
Walla.
- Between
1.30pm and 2pm, Mr Clayton Jon Reeves, was leaving the factory. Mr Reeves
observed “smoke and flames” coming from
the “high side of the
rubbish tip” in western end of the Tip. He described the smoke and flames
as “engulfing the
entire tip” but mainly concentrated “at the
tip end (western end)”. In his statement to the police he stated that
“[w]ithin seconds” of his observations he saw Mr Pumpa arrive. He
attended upon Mr Pumpa’s paddocks to help shift
sheep away from the
fire.
- Residents
in Walla Walla also observed indicators of fire coming from within Tip. Mr
Jeffrey Grosse, an employee at Elders Real Estate
Agency on Commercial Street,
which was around 3 kilometres north of the Tip, saw smoke coming from the Tip at
approximately 1.35pm.
He phoned the Fire Control Centre in Albury (“the
FCC”) to alert them and report the fire at 1.38pm. At 1.40pm, Mr Grosse
received a circular message on his phone from the FCC, which alerted all Rural
Fire Service members (in New South Wales) of the fire
at the Tip. He immediately
drove to the Fire Shed (also referred to as “the Fire Station”),
which was also on Commercial
Street.
- Captain
John Jacob, of the Walla Walla Fire Brigade, was at the Fire Station upon the
arrival of Mr Grosse. They drove in Captain
Jacob’s fire truck to the Tip.
It took Mr Grosse around 10 minutes from the time when he first learnt of a fire
until he was
at the road gate: that is to say he arrived at the road gate at or
about 1.45pm.
- Mr
John Eric Seidel, a resident living on Schoff Road, approximately 3 kilometres
east of the Tip, claimed that he was alerted to
the fire by the smell of smoke
around 1.30 or 1.40pm, at which time he stepped outside his property, and he
observed smoke “bellowing
into sky” above the Tip.
- Mr
Jacob recalled spotting the burning in the Tip at about 1.45pm. From his
property on Springvale he too observed “smoke billowing
out of the
tip”. He drove in his ute to his paddock to move his sheep away from the
fire front; he was assisted by Mr Richard
Schollick. He said “it took
about 15 minutes to shift the sheep”. During the shifting, Mr Jacob was
assisted by his neighbours,
Mr Alan Raynor and Messrs Gary and Daniel Mickan,
who helped put out the fire in his paddock. Mr Jacob described the grass in his
paddock as being “clover and rye” and “about 18 inches
high”. In contrast, the grass in the golf course was
“over a metre
high in a lot of places”. By the time Mr Jacob’s had shifted the
sheep he said “the fire was
coming onto my property”, at which point
he drove away to retrieve his fire truck. He accepted in cross-examination that
it
was around 15-20 minutes before he was in a position to use his truck and
assist with the fire.
- At
around 2pm Mr Jacob returned, at that stage the fire had already pushed through
the golf course and into Mr Jacob’s paddock.
He identified “[t]he
problem was that as we thought we put it out on the flank, it kept
reigniting”. He said that the
fire “would move and re-ignite to the
sides making it impossible to stop its advance across the [Walla Walla-Jindera]
road”.
Mr Jacob fought the fire predominantly on the southern side, from
his property, with the assistance of “a few local brigade
units”. He
described the fire front as “getting wider”. He continued to put
fires out on his property until the
evening.
- At
approximately 1.50pm, after shifting his sheep, Mr Pumpa collected a tractor
with a blade and graded the grass outside the boundary
of his property on the
western side of the Tip, in an effort to create a firebreak to protect his
property. This was also observed
by Mr Jacob. Mr Pumpa recalled that the fire
was at that time “well and truly already across the top of the [T]ip and
into
the golf course”. (Mr Pumpa said, in cross-examination, the fire was
not in the golf course when he “first got there”
but clarified that
when he started grading on the western side the fire was “moving across
the golf course”).
- Mr
Grosse was the first to arrive at the Tip, together with Captain Jacob, to
undertake fire fighting duties; they had a truck and
fire fighting equipment.
The road gate was locked. At this stage, Mr Grosse could not see where the fire
had progressed to. Captain
Jacob used bolt cutters to cut the lock (this took
approximately 30-60 seconds) and they drove down to the tip entrance, being
approximately
500 metres down the dirt road. Mr Grosse gave evidence that
“[w]e were the only fire unit fighting the fire within the confines
of the
Tip. The other Walla Walla fire unit went to the opposite side of the fire to
us”.
- In
para 8 of his statement of evidence, Mr Grosse, inter alia,
said:
The fire was in its initial stages when we first
arrived, but it had already travelled though the fence around the perimeter of
the
Tip towards Walla Walla-Jindera Road. There was very tall grass within the
Tip area and around the perimeter of the Tip. The fire
was travelling very
quickly.
- When
it was suggested by Senior Counsel for the defendant that his evidence (in
paragraph 8) was that, when Mr Grosse arrived, the
fire had already travelled
through the fence around the perimeter of the tip”, he
stated:
Well it wasn't meant to convey that if that's the way you read it but we had a -
cut the lock, opened the gates, drive down, we had
500 metres to drive, we could
see smoke and when we got down closer the - to it, we're still I'd say - well
from what I can remember
the majority of it was still in the tip area beside the
- inside the high fence except on the southern side I think had already started
to go through into the golf course.
- He
was then asked and answered:
Q. The only place that you made any movements to active management of the fire
was outside the fence, wasn't it?
A. It was outside the high fence of the tip but still in the roadway down to the
tip, because the golf club - the tip was fenced
- you had the road going down
and you had grass either side of the road, to keep people off the golf - keep
cars, traffic, whatever
off the golf course, so you go down that fenced area,
then you got down to where they dumped the rubbish in the tip. Now there was
a
high fence on the eastern side to stop paper and anything like that blowing out
of the tip, the pit area, there was a pit area
then there was the actual area
where you drive up to and drop all the whitegoods, bottles, rubbish in, in the
actual other tip, but
it's all part of the tip itself.
- Mr
Grosse was then pressed on the first sentence of the above extract from para 8
of his witness statement. He stated:
Q. Second sentence of that on the second line begins, "The fire was in its
initial stages when we first arrived." Is that right?
A. "The fire was" - yes I would say that was right.
Q. "But it had already travelled through the fence around the perimeter of the
tip." That's right too, isn't it?
A. Yes, yes about the actual dumping area in the tip, yes.
Q. And it was on its way towards Walla Walla Jindera Road, wasn't it?
A. Yes. Well it was basically into the golf course heading towards the Walla
Jindera Road.
Q. There was tall grass in the golf course, wasn't there?
A. Yes.
Q. The fire raced across the golf course, did it not?
A. It definitely did.
Q. To a point where it crossed the Walla Walla Jindera Road?
A. Yes.
- In
re-examination, Mr Grosse stated that he found it hard to recall if the fire was
burning outside the netting fence, but he did
not believe it was “unless
there was a little bit on the golf course side”.
- Mr
Grosse’s account of the escape of the fire in his statement was given on
15 July 2016. At that time, he had a clear recollection
that, at or soon after
his arrival, the fire had escaped the perimeter of the Tip and was heading to
Walla Walla-Jindera Road. I
do not consider his initial response in
cross-examination was prevarication but simply Mr Grosse’s attempt to
recall. When
pressed, his recollection conformed with his statement. His answer
in re-examination was again affected by issues of recollection.
- This
analysis proceeds to the comfortable conclusion that Mr Grosse’s evidence
was that, upon his arrival at the Tip, he observed
that the fire had, at least
in significant part, escaped the Tip and was heading at a rapid pace through the
tall grass within the
golf course to Walla Walla-Jindera Road.
- Mr
Grosse confirmed he and Mr Jacob immediately attempted to fight the fire and
moved the truck to the eastern side of the netting
fence surrounding the dumping
area but still within the formal boundary of the Tip. He described the terrain
on the eastern side
as “rough”, which caused the truck to lurch, and
commented on the grass at the golf course not being maintained. It took
approximately two minutes to exit that area. Those topographical difficulties
rendered them with no option but to take the truck
back up the driveway to the
road and to the road to fight the fire at which stage he recalled the fire had
“already jumped
the road” (I will refer to that evidence below). Mr
Grosse recalled moving into the neighbouring paddocks to fight the fire.
Mr
Grosse continued until approximately 5pm that day.
- He
gave the following evidence as to his efforts at fighting the fire initially at
the Tip and thereafter:
Q. Because your assessment of the situation was that there was no hope of
stopping the fire at its front at that stage, was there?
A. Well we couldn’t stop the fire at its front because we were in the
confines of that roadway. We had to turn around and go
up to where the gate -
we'd cut the bolts, turn right and then go into the golf club area to try and
stop the fire there, but by
the time we got into that area, the fire had raced
up and it beat us to where there was a dam and a creek and then got over that
and then it got to the road, jumped the road, so we had to go back out again and
into the - a property next door.
Q. How long do you think it was until the fire jumped the road - perhaps I'll
put it differently which might help you. How long was
it between you arriving at
the gate and the fire jumping the road?
A. Now which - when was this, arriving at the - to cut the bolt?
Q. Cutting the bolt, from that time until it jumped the road?
A. I would - I'm not real sure but it probably would've been about under - or
ten, around ten, 12 minutes, 15 minutes, something
like that.
Q. There was no fire to fight from the laneway leading from the Walla Walla
Jindera Road to the hut at the tip was there?
A. Not at that stage.
Q. Because all the fire was heading south and east from there was it not?
A. More east, southeast.
...
Q. That meaning has really got nothing to do, can I suggest to you, with your
going from a point immediately outside the tip down
to the road to fight the
fire there, has it?
A. Yeah, right, it was - the road was the tip area, the laneway was the tip
area, apparently, I've been told of that. But when we
got up there, we thought
we could - we had to go back out the - the gates that we cut the bolt on, we had
- we - there was a gate
going into the golf club, we thought, well, with a bit
of luck, we can possibly try and stop it before it gets to the road, but it
was
going across on that east, south easterly angle.
We raced across the other side to try and get to it to stop - stop it there, but
there was a dam and a creek, we got to that, we
couldn't get over the dam, we
couldn't get through to the creek because it was too deep, and the fire came up
past us. We seen, looked
and we seen it had jumped the road so we raced back out
onto the Jindera Walla Road and then into the neighbouring property. That's
-
that's what happened.
...
Q. What your statement suggests, I want to put to you, is that having stopped
outside the tip, you withdrew to the Walla Jindera
Road, by which stage the fire
had already jumped it, is that correct?
A. We didn't go directly from the tip to the Jindera Walla Road, we went into
the golf course first to try and stop it, then we went
onto Jindera Walla
Road.
- In
his statement, Mr Grosse also recalled a third person being present upon arrival
at the gate. He met someone whom he believed to
be “one of the Odewahn
brothers” seeking to assist. This evidence was not corroborated by any
further witnesses and was
relevant to an issue of causation, namely, that of
deliberate ignition (discussed at a later juncture in this judgment).
- The
neighbouring residents assisted emergency authorities by defending the
surrounding properties adjacent to the Tip. Further fire
units arrived after
2.00pm and local residents continued to fight the fire up until the rain at
11pm. However, The combined efforts
of local residents and fire authorities were
unable to prevent the fire from jumping across Walla Walla-Jindera Road and
ultimately
spreading to the township of Gerogery.
- I
will return to the origins of the fire later in the judgment.
The
Fire Path
- Fanned
by the north-westerly wind the fire developed quickly. The fire spread beyond
the formal boundary of the Tip on the south-east
corner. (The fire did not
extend beyond the external northern and western boundaries of the Tip. Nor did
it spread north across the
dirt road or in the direction of Townsview). It
travelled across the golf course and into the paddock of Mr Jacob via the
north-west
corner of his paddock; it continued in a south-easterly direction
toward the Walla Walla-Jindera Road. There are various accounts
as to the exact
time at which the fire jumped across the road, but it appears have occurred
shortly after 2pm.
- Upon
breaching the Walla Walla-Jindera Road, the fire travelled 11 kilometres
south-east to the township of Gerogery which is 11 kilometres
from the Tip.
Gerogery is situated approximately 34 kilometres to the north of Albury on the
Olympic Highway.
- The
fire continued in a south-easterly direction before a southerly-westerly change
came through. This change of wind direction created
a number of fingers of fire
along the northern front. An incident map prepared by the Rural Fire Service
demonstrates a pattern of
fire travel outward from a small area (see Annexure
C). The fire took approximately 1 hour to reach the township of Gerogery after
escaping the Tip.
- An
Emergency Declaration, pursuant to s 44 of the Rural Fires Act 1997
(NSW), was declared by the Fire Commissioner at 3.00pm on 17 December 2009.
Forty fire brigades and four aircrafts assisted to put
out the fire. The
Emergency Declaration was revoked four days later at 12pm on 21 December
2009.
- The
total area burnt was approximately 5,200 hectares. Some of this was public land,
much of it was the land owned by local residents
and farmers. The plaintiff, Ms
Sharon Patricia Weber, was a tenant at 14 Rose Street, Gerogery (“the
property”). She
lived at the property with her two teenage daughters but
was visiting family in Queensland at the time of the fire. The property
was
directly in the fire’s path. The property was
destroyed.
The Representative Proceedings
- Out
of that incident rose the representative proceedings before this Court. The
plaintiff commenced this proceeding pursuant to Pt 10 of the Civil Procedure
Act 2005 (NSW) against the defendant on her behalf and on behalf of the
group members. There are currently 57 group members registered with
Maddens
Lawyers, the solicitors for the plaintiff, registered as affected persons.
- The
group members to whom this proceedings relates, as pleaded by the plaintiff,
are:
- (1) All persons
who suffered loss or damage to property as a result of the fire;
- (2) All those
persons who suffered personal injury (whether physical injury, or psychiatric
injury) as a result of:
- (a) the Fire;
and/or
- (b) the injury
to another person as a result of the fire.
- (3) The legal
personal representatives of the estates of any persons listed in (1) or (2) as
at the commencement of this proceeding
but have since
died.
THE PLEADINGS
- By
a further amended statement of claim, filed 4 April 2017, the plaintiff sought
damages for negligence and, in the alternative,
nuisance. A summary of this
pleading follows.
Negligence
Introduction
- The
particular elements of the pleadings will be extracted below. However, it is
appropriate to note that the pleadings, with respect
to negligence, create a
distinction between two distinct elements of factual causation: loss occasioned
by the fire igniting and
loss occasioned by the fire spreading outside the Tip.
For example, in the case of duty, the plaintiff submitted that the duty of
the
defendant to her and the group members was a duty to take reasonable care to
prevent “a fire igniting at” [the Tip]
and “any such fire
spreading beyond the” Tip. In terms of the question of reasonable
foreseeability the plaintiff pleaded
that it was reasonably foreseeable that
“waste at the tip could ignite and sustain a fire” and, “if
such a fire
commenced, the risk of bushfire of the spread”. It was pleaded
the group members were dependent, for the protection of their
person, property
and interest, upon the defendant ensuring that “no fire would start”
in the Tip, or alternatively “any
such fire would not escape beyond”
the Tip.
- Similar
pleadings were made with respect to standard of care in the context of pleadings
as to precautions. In relation to breach
a similar distinction, was again
maintained in terms of the steps required that the defendant failed to take
which were described
as “Tip Management Failures”.
- It
is with these distinctions in mind and the conclusion the Court will reach with
respect to factual causation that this judgment
is divided into questions
concerning the ignition of the fire, and, in particular, the origins and cause
of the fire, and escape
of the fire (which will consider the question of duty of
care, as raised above, the corresponding issues relating to breach of duty
and
ultimately the question of causation). The two principal headings under the
topic of negligence are intended, in a short hand
way, to reflect that
distinction.
Duty of Care
- The
plaintiff contends that the defendant had a duty to take reasonable care to
prevent a fire igniting at the Tip and any such fire
spreading beyond the Tip.
In that respect the plaintiff relied on the following
pleadings:
9. At all material time, [the defendant]:
a. had the ultimate responsibility for all activities
associated with planning, design, construction, operation and maintenance of
the
Tip; and
b. had the right, and exercised that right, to the exclusion of other private
persons, to:
i. operate and maintain the Tip; or
ii. give directions as to the operation and maintenance of the
Tip.
c. exercised the right referred to in subparagraph
‘b’ above; and
d. in the premises, had practical control over [the
Tip].
10. At all material times, it was reasonably foreseeable to [the defendant]
that:
a. waste at [the Tip] could ignite and sustain a
fire;
b. if such a fire commenced, the risk of bushfire of the spread and severity of
the fire was not insignificant;
c. if a bushfire occurred, there was a not insignificant risk that the Plaintiff
and Group Members would suffer:
i. loss or damage to property within the
Fire Area and consequential losses including economic losses;
ii. damage to property and consequential losses including economic losses within
areas:
1. affected by the physical consequence of fire, such as smoke or debris; or
2. the subject of emergency activity to prevent the spread of fire;
(“Affected Areas”)
iv. personal injury.
d. the risks referred to in subparagraph ‘c’
were likely to be higher on days of extreme bushfire
risk.
11. At all material times, Group Members:
a. had no or no practical ability to prevent or minimise
the risk of a fire starting in [the Tip]; and
b. were vulnerable to the impact or effect of such fire; and consequently
c. were dependent, for the protection of their person, property and interest,
upon [the defendant] ensuring that:
i. no fire would start in [the Tip]; and
further or alternatively
ii. any such fire would not spread beyond [the
Tip].
12. In the premises, [the defendant] owed the Group Members a duty to take
reasonable care to prevent:
a. a fire igniting at [the Tip]; and
b. any such fire spreading beyond [the Tip];
(the Duty)
- In
response to the above pleadings, the defendant pleaded the following in its
further amended defence to the amended statement of
claim (filed 12 April
2017):
- (1) The
defendant admits it had responsibilities in relation to activities carried out
at the Tip on or before 17 December 2009. However,
the defendant disputed the
accuracy of the plaintiff’s summary of the defendant’s
“ultimate responsibility”
at para 9(a) of the further amended
statement of claim.
- (2) The
defendant stated:
- (a) persons
other than the defendant or its employees carried out regular maintenance
activities at the Tip before 17 December;
- (b) the Tip was
secured by a fence to which access was provided by way of a key; and
- (c) a copy of
the key to the Tip had been issued to persons other than the defendant or its
employees before 17 December 2009.
- (3) The
defendant denied persons other than the defendant were excluded from carrying
out maintenance at the Tip before 17 December
2009.
- (4) The
defendant pleaded it did not know and could not admit:
- (a) the type of
waste present at the Tip on the date of the fire “which was capable of
igniting and sustaining a fire as alleged
in paragraph 10(a)”; or
- (b) the risks
identified by the plaintiff, in paras 10(b), (c) and (d) of the amended
statement of claim (extracted above), were risks
which the defendant knew or
ought to have known on or before 17 December 2009.
- (5) The
defendant denied the risk of a fire spreading from the Tip to surrounding
properties and beyond was a risk which was reasonably
foreseeable to it on or
before 17 December 2009.
Standard of Care
- The
plaintiff, with respect to the standard of care, divided its pleadings into
three distinct issues (which will be further discussed
in the context of
“Escape of Fire from the Tip”):
- (1) Reasonable
foreseeability;
- (2) Probability
and seriousness of “the risk of harm” occurring (see below);
- (3) Precautions.
- The
relevant pleadings are extracted in full:
Foreseeable risks of harm
13. At all material times, it was reasonably foreseeable that:
a. a fire could ignite from waste kept and deposited at
[the Tip]:
b. a fire ignited within [the Tip] could spread within the tip, including by
reason of:
i. no or no adequate fire breaks between
different kinds of waste;
ii. the presence of trees, dry leaves or high grass within the tip;
iii. the presence of exposed combustible waste;
iv. the failure to suppress any fire after it
commenced;
c. a fire ignited within [the Tip] could spread to
surrounding areas causing bushfire, including by reason
of:
i. matters set out in the preceding
subparagraph; and
ii. no or no adequate fire break around the
tip;
d. the matters referred to in subparagraph
‘c’ presented risks to human life and property (the Risk of
Harm).
Probability and seriousness of the Risk of Harm occurring
14. At all material times:
a. [the Tip] was bordered to the south-east by the Walla
Walla Golf Course;
b. the Walla Walla Golf Course was note maintained and had tall
grass.
15. At all material times, the foreseeable local conditions for [the Tip] and
its surrounds included:
a. dry environmental conditions;
b. low atmospheric humidity;
c. high ambient temperatures; and
d. strong winds.
16. By reason of the matters set out at paragraphs 13 to 15:
a. the probability of the Risk of Harm occurring if care
were not taken was not insignificant; and
b. the likely seriousness of the harm occurring in the event that the Risk of
Harm eventuated was potentially catastrophic.
Precautions
17. As a result of the matters pleaded in paragraphs 13 to 16, a reasonable
person in the position of [the defendant] would have
taken the following
precautions against the Risk of Harm:
a. prepare and implement a fire management plan to
minimise the incidence and impact of fire at [the Tip];
Precautions to reduce or control the spread of fire
b. create and maintain effective fire breaks around the perimeter of the
facility and each kind of waste stored or deposited threat;
c. consolidate deposited waste into the appropriate areas;
d. remove fuel such as trees, dry leaves and high grass from the facility,
including from and adjacent to each particular waste area,
on a sufficiently
regular basis so as to prevent dangerous build-up;
e. install and maintain fire-fighting equipment adequate to fight fires at any
part of the facility;
f. undertake inspection and monitoring of the facility during periods of extreme
bushfire risk, including by way of remote monitors
or close circuit
televisions;
Fire prevention precautions
g. ensure different kinds of waste were not and did not remain mixed together
including by taking the following steps:
i. inspecting the waste as it was brought
onto the site by the customer; and
ii. directing the customer to deposit the waste in the appropriate area or
areas;
iii. supervising or otherwise verifying that the customer deposited the waste in
the appropriate area or areas; and
iv. at the end of each operating day, inspecting the waste areas and undertaking
any necessary rectification.
h. cover waste with cover material on a sufficiently
regular basis so as to minimise the risk of fire, particularly in high risk
bushfire
periods;
Particulars
Waster should have been covered with daily, intermediate and final
non-combustible cover material such as
soil.
i. manage green waste piles so as to minimise risk of
self-combustion, including, inter alia:
i. regularly aerating green waste piles;
ii. minimising their height; and
iii. disbursing them to non-combustible
levels;
j. manage combustible material so as to minimise the
risk of combustion including inter alia.
i. restrict, further and alternatively
prohibit, receipt of combustible materials during bushfire season;
ii. ensure that all combustible materials are either disposed and buried or
stored in appropriate areas or receptacles; and
iii. divide combustible waste of any particular kind into small separate piles
so as to keep a pile of material that might ignite
separate from other
combustible material.
- I
now turn to a summary of the defendant’s reply to the above
pleadings:
- (1) The
defendant for the most part maintained and repeated its earlier replies within
the context of duty. This will not be repeated.
- (2) The
defendant did not admit para 13 and made the following specific response to para
13(c)(ii):
[T]he construction and maintenance of a fire break
around the perimeter of the Walla Walla Rubbish Tip before 17 December 2009 was
work carried out by a person other than the Defendant or its
employees.
(3) As to the golf course, its location and ownership, this has since been
agreed by the parties in the agreed statement of facts.
(4) The defendant did not admit the “foreseeable local conditions”
for the Tip as pleaded by the plaintiff at para 15
of the further amended
statement of claim.
(5) The defendant otherwise denied paras 15-17 of the further amended statement
of claim.
- As
to the reference to “the perimeter of the Walla Walla Rubbish Tip”,
the evidence and submissions by both parties reveal
that, in that instance, the
perimeter concerned the netting fence within the Tip.
Breach of
duty
- The
plaintiff contended the defendant breached its duty of care by failing to take
reasonable care by one or more of the following
(referred to in the
plaintiff’s pleading at para 18 as “Tip Management
Failures”):
a. having no adequate fire management plan to minimise the incidence and impact
of fire;
Particulars
Insofar as the plaintiff is able to say prior to discovery, the absence can be
inferred from the failure identified
below.
b. taking no adequate steps to reduce or control the spread of fire by reason
of:
i. failing to create an effective fire break around the
perimeter of [the Tip];
ii. failing to construct effective fire breaks around different types of
waste;
iii. failing to, or to adequately, consolidate deposited waste into designated
areas;
Particulars
In July 2009, the Council reduced the frequency of contracted maintenance works,
including works to consolidate deposited waste,
from weekly to
fortnightly.
iv. failing to remove trees, dry grass and high grass
present in the Tip in the period leading up to and including the date of the
fire;
v. failing to install fire-fighting equipment;
vi. failing to, or to adequately, [monitor the Tip] during period of extreme
bushfire danger; and
c. taking no adequate steps to prevent the spread of fire, including by reason
of:
i. failing to, or to adequately, manage different kinds
of waste so that they were not and did not remain mixed
together;
Particulars
Insofar as the Plaintff is able to say prior to discovery, [the defendant]
failed to or failed to adequately:
(a) supervise or otherwise verify that customers deposited waste in appropriate
areas; and
(b) at the end of each operating date, inspect the waste areas and undertake any
necessary rectification.
ii. failing to, or to adequately, cover waster with
cover material on a sufficiently regular basis so as to minimise the risk of
fire;
Particulars
Insofar as the plaintiff is able to say prior to discovery, [the defendant]:
(a) did not cover green waste; and
(b) covered general waste in part and fortnightly only.
In July 2009, [the defendant] reduced the frequency of contracted maintenance
works, including ‘pushing’ waste and covering
in part some waste,
from weekly to fortnightly.
iii. failing to, or to adequately, manage green waste
piles so as to minimise the risk of self-combustion;
Particulars
Insofar as the plaintiff is able to say, green waste was burnt in November
2009.
The Plaintiff refers to and repeats the particulars to subparagraph
‘ii’ above.
iv. failing to, or to adequately, manage combustible
waste so as to minimise the risk of combustion.
Particulars
Insofar as the Plaintiff is presently able to say, [the defendant] did not or
did not adequately:
(a) restrict or prohibit receipt of combustible materials during bushfire
season; and
(b) ensure that all combustible materials are either disposed and buried or
stored in appropriate areas of receptacles; and
(c) divide combustible waste of any particular kind into small separate piles so
as to keep a pile of material that might ignite
separate from other combustible
material.
Insofar as the Plaintiff is able to say, a pile of tyres was present at [the
Tip] burnt in the fire.
Further, the Plaintiff refers to and repeats the particulars to paragraph
‘b’ ‘iii’ above.
(the Tip Management Failures).
- By
reasons of one or more of the above Tip Management Failures, the plaintiff
pleaded that the defendant breached its duty. This was
identified as “the
Tip Management Breach”.
- In
response to the breach as pleaded by the plaintiff, the defendant denied each
paragraph and each and every particular pleaded therein,
and made the following
specific responses:
- (1) The
defendant repeated its response at para 13(c) of its pleading (extracted above
at [66(2)]) (in response to para 18(b)(i) and
(ii)); and
- (2) The
defendant said it inspected each of the four designated waste areas at the
beginning and at the conclusion of each day the
Tip was open for operation (in
response to para 18(b)(i) and
(c)(ii)).
Causation
- The
plaintiff contends that the fire was caused by a Tip Management
Breach.
Loss and damage
- As
a result of one or more of the aforementioned Tip Management Failures the
plaintiff submitted that substantial loss and damage
was
suffered.
Nuisance
- Further
and alternatively, the plaintiff contended the fire substantially and
unreasonably interfered with the use or enjoyment of
the interests in the land
held by the plaintiff. As a result of nuisance caused by the defendant the
plaintiff suffered loss and
damage.
- The
plaintiff’s pleading, in this respect, is extracted
below:
Creation of nuisance
22. The Fire was caused by [the defendant’s] Tip Management Failures.
Foreseeability of loss and damage
23. At all material times:
a. the matters in paragraph 10 and 13; and
b. the risk that a fire ignited in [the Tip] would unreasonably interfere with
the use and enjoyment of the interest in the land:
i. over which the fire passes; further or
alternatively
ii. that was affected by the physical consequences of the fire or by emergency
response to the fire;
iii. by the Plaintiff and Group Members;
were reasonably foreseeable
Interference with interests in land
24. The Fire substantially and unreasonably interfered with the use or enjoyment
of the interest in land held by the Plaintiff and
Group members.
[Particulars omitted.]
25. In the circumstances set out in paragraphs 1-24, the Plaintiff and the Group
Members suffered nuisance created by [the defendant]
(the Nuisance).
Loss and damage
26. As a result of the Nuisance, the Plaintiff and Group Members have suffered
loss and damage.
- In
respect of the claim of nuisance, the defendant either denied or otherwise did
not admit paras 22-26 of the plaintiff’s pleading.
Common
Questions
- The
pleading also set out questions of law or fact common to the claims of the
plaintiff. They were as follows:
- (1) Whether the
General Duty was owed by the Council to the Plaintiff and the Group Members, and
it so, the content of the General
Duty;
- (2) Whether the
Tip Management Failures were breaches of the General Duty;
- (3) Whether the
Tip Management Breaches caused the Fire;
- (4) Whether the
Plaintiff and Group Members suffered nuisance created by the Council; and
- (5) What are
the principles for identifying and measuring compensable losses suffered by the
claimants resulting from the breaches
of duty or negligence alleged
herein.
- The
defendant did not accept the above questions as “necessarily common”
to the claims made by the plaintiff and all group
members, owing to “the
nature and content of each duty, and the circumstances in which any duty is
breached, will depend on
the circumstances in which they arise”.
Accordingly, in response, the defendant annexed a document titled “Common
Questions
of Law or Fact” to its pleadings. However, owing to the events
that followed it is unnecessary to turn to that document in
any further
detail.
- On
31 March 2017, the parties jointly filed a list of common questions of law or
fact, which are annexed to the judgment as Annexure
C.
Relief
- The
plaintiff sought relief in the form of damages, costs, interest and such further
or other orders as the Court thinks fit.
- This
judgment concerns the question of liability. The economic loss of the plaintiff
was particularised in Annexure A to the plaintiff’s
further amended
statement of claim. That quantum was admitted by the defendant.
- For
completeness, I note that counsel for the plaintiff raised a further claim
“for inconvenience”, with respect to the
plaintiff’s
requirement to relocate and the issues associated with the same. Counsel for the
defendant noted that the damages
agreed were not understood to include an amount
with reference to that claim (which counsel for the defendant contended had not
been
particularised). Both parties noted the issue, in that respect, was
apprehended to be of “relatively small moment” but
the contention
was noted on the record.
NEGLIGENCE: IGNITION OF THE FIRE AT THE
TIP
- Upon
accepting the fire started within the vicinity of the Tip, the parties refined
the issue in the common questions as follows:
“how did the fire in the
vicinity of the Walla Walla Tip on 17 December 2009 start?”. The answer to
that question will,
in this matter, resolve the issue of causation with respect
to any breach of duty to take reasonable care to prevent a fire igniting
at the
Tip. Questions of causation as to a breach of a duty to prevent fire escaping
beyond the Tip will be considered under a separate
heading. Before venturing to
discuss the origin and cause of the fire, I will discuss the relevant
legislation and authorities bearing
on the question of causation, both as to the
ignition of the fire and escape of the fire.
Relevant Legislation
on Causation
- The
question of causation is governed by s 5D of the Civil Liability Act
2002 (NSW). The relevant sections of that Act are set out in Div 3 and
extracted below:
5D General principles
(1) A determination that negligence caused particular harm comprises the
following elements:
(a) that the negligence was a necessary condition of the
occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s
liability to extend to the harm so caused (scope of
liability).
(2) In determining in an exceptional case, in accordance with established
principles, whether negligence that cannot be established
as a necessary
condition of the occurrence of harm should be accepted as establishing factual
causation, the court is to consider
(amongst other relevant things) whether or
not and why responsibility for the harm should be imposed on the negligent
party.
(3) If it is relevant to the determination of factual causation to determine
what the person who suffered harm would have done if
the negligent person had
not been negligent:
(a) the matter is to be determined subjectively in the
light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or
she would have done is inadmissible except to the
extent (if any) that the
statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to
consider (amongst other relevant things) whether or not
and why responsibility
for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears
the onus of proving, on the balance of probabilities,
any fact relevant to the
issue of causation.
- The
application of the Civil Liability Act requires the plaintiff to
establish factual causation and scope of liability. The plaintiff bears the onus
of proving, on the balance
of probabilities, any fact relevant to the issue of
causation: s 5E of the Civil Liability Act.
Relevant
Authority on Causation
- The
traditional approach to the question of causation requires a determination of a
question of fact, namely what was the cause of
a particular occurrence:
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd
[1953] UKHL 4; [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is
generally described as the “but for” test or “causa sine
qua non”.
- The
common law approach to the issue of causation has since developed by reference
to two distinct considerations, succinctly set
out by Mason CJ in March v E
& MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 (“March
v Stramare”) (at 430) and summarised as follows:
- (1) The
application of the “but for” test (as well as the further question
of whether a defendant is contributory negligent
for damage if his or her
negligence has played some part in producing); and
- (2) The
applicability of value judgments and considerations of policy.
- In
March v Stramare, the High Court ruled that the “but for”
test should not be treated as the definitive test of causation where negligence
is alleged. Rather, in certain circumstances, causation is to be determined by
policy and/or a value judgment involving ordinary
notions of language and common
sense.
- This
development addressed the oft-cited difficulty in application of the “but
for” test in circumstances where there
were two or more acts or events
which would each be sufficient to bring about the plaintiff’s injury. The
limitations of the
test, particularly where there are two or more acts or
events, each of which would be sufficient to bring about the plaintiff's injury,
or where a defendant seeks to rely upon a “supervening cause” or
“novus actus interveniens”, are well established: March v
Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
(“Chapman v Hearse”) at 124-125. This difficulty was
summarised by Mason CJ (March v Stramare at 431-432) and extracted
below:
... the “but for” test does not provide a satisfactory answer in
those cases in which a superseding cause, described
as a novus actus
interveniens, is said to break the chain of causation which would otherwise
have resulted from an earlier wrongful act. Many examples may be given
of a
negligent act by A which sets the scene for a deliberate wrongful act by B who,
fortuitously and on the spur of the moment,
irresponsibly does something which
transforms the outcome of A's conduct into something of far greater consequence,
a consequence
not readily foreseeable by A. In such a situation, A's act is not
a cause of that consequence, though it was an essential condition
of it. No
doubt the explanation is that the voluntary intervention of B is, in the
ultimate analysis, the true cause, A's act being
no more than an antecedent
condition not amounting to a cause. But this explanation is not a vindication of
the adequacy of the “but
for” test.
The facts of, and the decision in, M'Kew illustrate the same deficiency
in the test. The plaintiff would not have sustained his ultimate injury but for
the defendant's negligence
causing the earlier injury to his left leg. His
subsequent action in attempting to descend a steep staircase without a handrail
in
the normal manner and without adult assistance resulted in a severe fracture
of his ankle. This action was adjudged to be unreasonable
and to sever the chain
of causation. The decision may be explained by reference to a value judgment
that it would be unjust to hold
the defendant legally responsible for an injury
which, though it could be traced back to the defendant's wrongful conduct, was
the
immediate result of unreasonable action on the part of the plaintiff. But in
truth the decision proceeded from a conclusion that
the plaintiff's injury was
the consequence of his independent and unreasonable action.
The fact that the intervening action is deliberate or voluntary does not
necessarily mean that the plaintiff's injuries are not a
consequence of the
defendant's negligent conduct. In some situations a defendant may come under a
duty of care not to expose the
plaintiff to a risk of injury arising from
deliberate or voluntary conduct or even to guard against that risk: see
Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny
recovery in these situations because the intervening action is deliberate or
voluntary would be to deprive the duty of any
content.
...
As a matter of both logic and common sense, it makes no sense to regard the
negligence of the plaintiff or a third party as a superseding
cause or novus
actus interveniens when the defendant's wrongful conduct has generated the
very risk of injury resulting from the negligence of the plaintiff or a third
party and that injury occurs in the ordinary course of things. In such a
situation, the defendant's negligence satisfies the “but
for” test
and is properly to be regarded as a cause of the consequence because there is no
reason in common sense, logic or
policy for refusing to so regard
it.
- Deane
J also relevantly observed (March v Stramare at
435–436):
... the mere fact that something constitutes an essential condition (in the
“but for” sense) of an occurrence does not
mean that, for the
purposes of ascribing responsibility or fault, it is properly to be seen as a
“cause” of that occurrence
as a matter of either ordinary language
or common sense. Thus, it could not, as a matter of ordinary language, be said
that the fact
that a person had a head was a “cause” of his being
decapitated by a negligently wielded sword notwithstanding that possession
of a
head is an essential precondition of decapitation. Again, the mere fact that a
person makes a gift of money to another is not,
in any real sense, a
“cause” of the damage sustained by that other person when his agent
negligently loses the money
notwithstanding that the loss would not have
occurred “but for” the original gift. As Lord Reid pointed out in
Stapley (at 681):
The question [of ‘what caused an accident from the
point of view of legal liability'] must be determined by applying common
sense
to the facts of each particular case. One may find that as a matter of history
several people have been at fault and that if
any one of them had acted properly
the accident would not have happened, but that does not mean that the accident
must be regarded
as having been caused by the faults of all of them. One must
discriminate between those faults which must be discarded as being too
remote
and those which must not. Sometimes it is proper to discard all but one and to
regard that one as the sole cause, but in other
cases it is proper to regard two
or more as having jointly caused the accident. I doubt whether any test can be
applied generally.
- Further
relevant developments by the High Court, cited in March v Stramere,
included the following:
- (1) In
Chapman v Hearse, the High Court rejected reasonable foresight as a test
of causation (at 124-5). Rather, “it marks the limits beyond which a
wrongdoer will not be held responsible for damage resulting from his wrongful
act” (at 122).
- (2) In
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985]
HCA 37, the High Court observed (at 725):
A line marking the boundary of the damage for which a
tortfeasor is liable in negligence may be drawn either because the relevant
injury is not reasonably foreseeable or because the chain of causation is broken
by a novus actus interveniens: M'Kew v Holland & Hannen &
Cubitts [[1970] SC(HL) 20 at 25]. But it must be possible to draw such a
line clearly before a liability for damage that would not have occurred
but for
the wrongful act or omission of a tortfeasor and that is reasonably foreseeable
by him is treated as the result of a second
tortfeasor's negligence alone: see
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 [at 124–5]. Whether such a line
can and should be drawn is very much a matter of fact and degree (ibid, at p
122).
- The
two-fold common law approach in March v Stramare, set out above,
is now reflected in s 5D of the Civil Liability Act. A determination
that the defendant’s negligence caused particular harm requires
satisfaction of the following:
- (1) whether the
negligence was a necessary condition of the occurrence of the harm
(“factual causation”), and
- (2) whether it
is appropriate for the scope of the negligent person’s liability to extend
to the harm so caused (“scope
of liability”).
- Causation
will be established if the evidence justifies, in light of the statutory test, a
finding or inference of “probable
causal connection between the breach of
duty and the harm suffered”: C Sappideen and P Vines (eds),
Fleming’s The Law on Torts (10th ed, 2011, Thomson Reuters) at
226-227. If the probable causal connection is established, the law treats as
certain that to
which there may be no conclusive answer: Amaca Pty Ltd v
Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70].
- Causation
in tort is not established because a tortious act or omission increases the risk
of injury, even though the relationship
between risk and causation must be
assessed. The mere existence of an association between one occurrence and
another does not, of
itself, establish factual causation for the purposes of s
5D(1)(a).
- In
Carangelo v State of New South Wales [2016] NSWCA 126
(“Carangelo”) at [71], Emmett AJA (with whom Macfarlan and
Gleeson JJA agreed) stated, in this respect:
[71] Causation in tort is not established merely because the allegedly tortious
act or omission increased a risk of injury. The risk
of an occurrence and its
cause are quite different things. However, the relationship between risk and
causation must be considered.
Ordinarily, risk refers to a challenge or danger,
or the chance or hazard of loss. The existence of an association or a positive
statistical correlation between the occurrence of one event, and the subsequent
occurrence of another, may be expressed as a possibility
which may be no greater
than a real chance that, if the first event occurs, the second event will also
occur. The mere existence
of such an association or correlation does not justify
a statement relevant to factual causation in law, that the first event creates
or gives rise to or increases the probability that the second event will occur.
Such a statement contains an assumption that, if
the second event occurs, it
will have some causal connection to the first. However, if the association
between the two events is
shown to have a causal explanation, then the
conclusion may be open, if the second event should occur, that the first event
has been
at least a contributing cause. An inference of causal connection may be
reached on the balance of probabilities after the event,
notwithstanding that
the statistical correlation between the first event and the second event
indicated, prospectively, no more than
a mere possibility or a real chance that
the second event would occur, given the first event. (Amaca Pty Limited v
Booth [2011] HCA 53; 246 CLR 36 at [41]- [43]).
Evidence:
Point Of Origin and Cause of the Fire
- The
evidence bearing upon these issues comprises three components, summarised as
follows:
- (1) Physical
evidence at or about the time of the fire, principally in the form of
photographs, before the fire in or around October
2009 (set out below at [142])
and after the fire by, inter alia, Mr Stephen Walker (a Fire Investigator
with the Rural Fire Service who wrote a report on the fire) on 19 December
2009.
- (2) The
evidence of various persons, including eye-witness accounts by local residents
(including those discussed above), that made
observations about the Tip and
surrounding environment and other conditions both before and/or after the fire.
In addition to the
evidence of eye-witnesses, the Court also received evidence
from Mr Walker, the Fire Investigation Report and NSW Rural Fire Service
Statement.
- (3) Expert
evidence which traversed both the questions of the origin and the cause of the
fire and issues relating to the spread of
the fire although there was some
overlap in the discussion of each topic.
Expert
Evidence
- It
is convenient at this juncture to set out the expert evidence. The experts and
their respective reports were as follows:
- (1) Mr Fabian
Crowe, “Fire Report”, dated September 2016. Mr Crowe is employed by
Bushfire Education, Training & Consultancy
Services.
- (2) Ms Danielle
O’Toole, “Expert Witness Report”, dated 31 October 2016. Ms
O’Toole is a Technical Discipline
Manger in the Engineering department at
SLR Consulting (her report was limited to an opinion as to the risks of a fire
spreading
within and outside the Tip and whether they could be reduced or
controlled).
- (3) Mr Murray
Nystrom, “Preliminary Report: Fire Investigation”, dated 15 December
2011. Mr Nystrom is a Director at Australian
Forensic Pty Ltd.
- (4) Dr Tony
Green, “Expert Opinion Report”, dated 4 November 2016. Dr Green is a
Principal Visiting Fellow at the School
of Computer Science and Engineering
Software, Faculty of Infomatics, University of Wollongong.
- On
16 February 2017, the aforementioned experts conducted a conclave and a joint
report of the experts was filed 20 February 2017
(“the Joint
Report”). Concurrent evidence was heard before this Court on 18 and 19
April 2017 (“the concurrent
evidence”). The Joint Report and the
concurrent evidence, together with individual reports of each expert, make up
the expert
evidence in the proceedings.
- By
the evidence of the proceedings, as between the parties and as between the
experts, there were five causes identified as to how
the fire ignited in the
Tip. These were reflected in the document entitled “Questions for
experts’ concurrent evidence”
(see Annexure E).
- There
was also a considerable amount of consensus reached, with respect to the
question of the cause of the fire, predominantly arising
out of the conclave and
the Joint Report (although Dr Green maintained his theories of lightning and
deliberate ignition).
Origin of the Fire
- A
joint statement of agreed facts was filed 31 March 2017. It was agreed between
the parties that “a fire started within the
formal boundary of the area of
land on which the Walla Walla Rubbish Tip was located”. A combination of
lay and expert evidence
narrowed the fire origin to the western area within the
confines of the Tip.
- The
plaintiff maintained that the location of the commencement of the fire was at
the top of the bund rather than west of the bund.
Reliance was placed, in this
respect, upon a grid reference provided by Mr Walker. Dr Green was hesitant to
place reliance on a grid
reference in the absence of a map, noting that
“grids” are usually “anything from 50 metres to hundred
metres,
200 metres, as a square area, and without the map to go with it you
can't actually tell the area that he's talking about”.
Nonetheless, the
plaintiff contended that such a conclusion was consistent with the accounts of
eyewitnesses, including Mr Pumpa
and photographs of the Tip taken on 19 December
2009.
- The
defendant contended that no such conclusion was available on the evidence. I
agree. There is no basis in the evidence for the
forming of such a precise
conclusion as to the location of the commencement of the fire. The evidence only
permits a conclusion,
on the balance of probabilities, that the fire commenced
in the western side of the dumping area. My reasons for that conclusion
are
discussed below.
- On
18 December 2009, Mr Walker was requested to investigate the course and origin
of the fire. He attended upon the Albury Fire Control
Centre at 5.15pm, that
same day, and obtained details of the incident. He copied and examined available
records and reports, including
situation reports, local area maps, recorded
weather data and line scan imagery.
- Mr
Walker produced a statement on 17 February 2010, which outlined and recorded his
determinations included in his Fire Investigation
Report (not dated). The
investigation report included photographic evidence, weather observations for
Albury and a map of the extent
of the fire (see Annexure D). (Mr Walker’s
evidence was limited to considerations relevant to cause of the fire and origin.
It did not address issues of spread of the fire and/or fuel reduction
measures).
- On
19 December 2009, Mr Walker conducted an examination of the entire fire scene
and concluded that the “general area of origin”
was inside the
western area of the Tip. This conclusion was supported by the substantial damage
he observed in the west. Further,
aerial analysis of the site revealed that
strong north-west winds pushed the fire in a south-east direction. The strength
of the
wind resulted in the head of the fire expanding in width as it moved
forward (see Annexure D).
- A
summary of Mr Walker’s examination and findings follows:
- (1) On 19
December 2009 he met with Senior Constable Adam Larkin, Forensic Services Group
of the New South Wales Police. They travelled,
together with Superintendent Joe
Knox, in an aerial reconnaissance to identify the fire area, direction of
travel, and impact of
the fire on houses in Gerogery.
- (2) Mr Walker
identified the following macro indicators, with respect to fire area, the
direction of travel and the impact of the
fire, during the course of the aerial
investigation (“the macro indicators”):
- (a) “The
burnt area to the east of the Olympic highway was much wider than to the west.
This indicated to me that the fire had
originated further northwest and burnt
towards the southeast”; and
- (b) “[Travelling
west north-west] I saw more evidence to support the direction fire travel being
from further west, indicators
supporting this were, trees scorched on the
western side of residences yet little or no evidence of scorching was visible on
the
eastern side”.
- (3) The macro
indicators revealed the fire had burnt towards the south east and enabled Mr
Walker to identify an area south of Walla
Walla, on the west side of Walla
Walla-Jindera Road as an area of interest. This area was later confirmed by him
as “the Walla
Walla tip site”.
- (4) Further
observations were made at ground level. Mr Walker travelled by vehicle, with
Senior Constable Larkin, to Gerogery, back
along the direction that the fire
travelled, and proceeded to the entrance to the Tip. The following observations
were reported:
- (a) From the
intersection of the Walla Walla-Jindera Road and West street, Mr Walker
confirmed “the direction of fire travel,
being from a westerly direction.
Indicators in this area included intense scorching of large pin trees on the
east side of West Street,
oxidization of iron fencing in the same area, leaf
freeze on trees on private property, east side of West Street, scorching and
charring
on fence posts and power poles”.
- (b) “From
West Street, looking towards the northwest, the paddocks were burnt bare. This
was due to the intensity of the fire
and the speed in which it travelled. Two
large gum trees in the paddock showed no effect from leaf scorch, such was the
pace of the
fire yet one tree was alight within burning, from the inside out. I
was satisfied that the origin of this fire was located further
west”.
- (c) Travelling
west along the Gerogery Walla Walla Road, Mr Walker saw “many
indicators” that confirmed the fire origin
being “further
west”, namely, “leaf freeze on trees and shrubs, scorching on posts
and poles, charring on posts
[and] scorching on buildings”.
- (d) Turning
left from Gerogery Walla Walla Road on to the Walla Walla-Jindera Road, Mr
Walker reported that “[t]he areas on
both sides of the road were
unburnt”. However, he noted that the paddocks west of the road, situated
on private land, had “low
intensity burn... along the northing boundary,
outside the tip”. This “low intensity burn” was identified as
“back
burn”, controlled burning in order to strengthen the northern
containment line.
- (e) As Mr
Walker travelled closer to the Tip, he observed “evidence of leaf freeze
pointing towards the east southeast, fence
posts with wrap around sooting on
them and scorched shrubs”. He reported that “these all indicated
that the fire had
travelled from west to east”.
- (f) Fuel loads
in the area, west to east along the track towards the Tip, and anywhere east of
the Tip enclosure were not identifiable
as there was nothing left. Mr Walker
observed this to be an indication, in light of the above factors, that the fire
was “a
fast moving ground fire”.
- (g) The
location upwind of the Tip, in the northwest corner, was still burning on the
day the investigation was conducted.
- (h) Mr Walker
also confirmed back burning activity along the northern boundary, which
continued beyond the western perimeter of the
tip site. Whilst there was no
evidence that burning had been undertaken to strength the western boundary along
the track and fence,
Mr Walker also observed that there no visible signs of the
fire occurring west of the boundary track.
- (i) Between the
western boundary track and the tip face Mr Walker observed the following, which
indicated the presence of low intensity
burning that may have been the result of
back burn: “leaf freeze on a shrub inside the burn area beside the
track”.
- (5) The Tip was
still alight on 19 December 2009, and “due to the amount of disturbance by
heavy machinery and the hazards present”,
Mr Walker decided that examining
the tip face was not a possibility.
- (6) Having
examined all of the available evidence and identified a general area of origin,
being the Tip, Mr Walker made the following
determination into the cause and
origin of the fire:
- (a) the fire
started inside the Walla Walla Tip compound (“somewhere near grid
reference 55H 0489835 – 6040749”);
and
- (b) burning
debris of an unknown type is the possible ignition source.
- (7) Mr Walker
stipulated in his statement: “my opinion based on all the evidence
gathered that this fire started inside the
Walla Walla tip compound; somewhere
near grid reference 55H 0489835 – 6040749. This is the closest grid
reference possible
due to the hazards contained within the vicinity”.
- Two
factors impacted upon the specificity of Mr Walker’s
report:
- (1) First, the
Tip was still alight on 18 December 2009 and sections were deemed too hazardous
to inspect.
- (2) Second, the
Rural Fire Service were conducting fire suppression activities (i.e. back
burning) at the time of the fire and investigation.
The back burning was along
the northern boundary and continued beyond the western perimeter of the Tip.
This secondary source of
burning could not be definitively distinguished from
the burn caused by the fire, namely, the “backing fire”. Backing
fire develops at the heel of the fire and travels upwind from the point of
ignition. The experts did not dispute the occurrence of
this
“phenomenon”. However, its impact was the subject of
disagreement.
- As
to Mr Walker’s observations with respect to leaf freeze, it is apparent
that this micro indicator, found at ground level,
was primarily utilised for the
purpose of ascertaining fire direction. Additionally, Mr Walker’s analysis
of its presence,
in combination with other micro indicators, that it could be
suggestive of “low intensity burn” associated with back
burn. The
presence of leaf freeze, in and of itself, did not confirm the point of ignition
of the fire (or as it will be discussed
the cause of the fire).
- Mr
Pumpa refined his observation of smoke coming from the western end of the Tip to
the nomination of the south western corner of
the dumping area. Mr Reeves
identified smoke coming from the western end of the Tip.
- On
balance, as I have noted, the evidence reveals, on the balance of probabilities,
the fire started at the western side of the Tip.
The Cause of the
Fire
Expert Evidence
- There
were six causes identified as the possible source of ignition of the fire,
namely, dry lightning, spontaneous combustion, residual
burn deliberate
ignition, batteries and glass. However, following the conclave, the consensus
reached by all experts was that “the
actual cause or probable cause of
ignition cannot be identified”. The concurrent evidence that was called
did nothing to disturb
that conclusion. I accept this conclusion and will now
demonstrate that, with respect to the causes therein identified, with some
being
easier to dispense with than others.
Dry
Lightning
- Dr
Green was the only expert to identify ignition by lightning as a possible cause
in the Joint Report. Dr Green opined that “[t]he
prevailing conditions
could cause very rapid fire development and the reported solar conditions over
the course of the day are consistent
with dry lightning”.
- “Dry
lightning”, which was specifically theorised by Dr Green, is when rain may
accompany lightning activity but does
not hit the ground. Accordingly, from the
outset, the absence of rain at the time of the fire did not immediately defeat
this possible
cause.
- There
were several bases developed for this thesis by Dr Green, many of which were
disputed, in certain respects, by Messrs Nystrom
and Crowe. However, a point of
consensus about whether or not any form of lightning, including dry lightning,
was present at or about
the ignition of the fire was that, if lightning was
present, it would need to be accompanied by a thundercloud (typically a high
cumulonimbus cloud) and ‘thunder’ prior to a lightning strike.
- The
only evidence bearing upon that issue, that is, the evidence of
“thunder” – as opposed to cloud – was
the evidence of Mr
Jon Reeves, to which I will return.
- Dr
Green’s thesis was predicated upon four factors:
- (1) Notwithstanding
the absence in the evidence of any observation of cloud coverage, the solar flux
readings were said to demonstrate
“significant cloud coverage”
during the day.
- (2) Whilst not
entirely clear, the trajectory of the fire, combined with its impact upon the
northern corner of the Tip, suggests
the fire was not caused by spontaneous
combustion.
- (3) Dry
lightning occurs in extreme weather. That type of weather, in the opinion of Dr
Green, was confirmed at the time of the fire
by data retrieved from the Bureau
of Meteorology for 17 December 2009. This combined with the solar flux readings
strongly suggested
the natural conditions present on that day were conducive to
dry lightning occurring.
- (4) The
statement of Mr Jon Reeves confirmed that an “explosion” was heard
and “[s]uch an explosion is consistent
with a lightning
bolt”.
- I
shall consider each factor in turn.
- Neither
Messrs Nystrom or Crowe were of the opinion that the evidence available was
demonstrative of any form of lightning strike,
save that Mr Nystrom acknowledged
that the solar flux readings were a relevant consideration to the theory. (He
did not expand upon
that observation).
- Dr
Green conceded that data as to solar fluxes did not conclusively prove the
existence of dry lightning but contended it supported
his theory. He accepted in
the absence of time data, the highest the evidence of solar fluxes can be put is
that it indicated the
existence of clouds or the presence of cloud coverage
(albeit at an undeterminable time) may be inferred. As mentioned above, Dr
Green
also relied on the existence of an extreme weather event at the time of the fire
to strongly suggest that the conditions for
the formation of clouds were present
at that time. It was put to Dr Green that a lightning tracking report suggested
any lightning
strike within the area occurred approximately 30 kilometres away,
Dr Green disputed its accuracy.
- Dr
Green’s theory as to why the trajectory of the fire is demonstrative of
dry lightning is somewhat opaque. In his concurrent
evidence he revealed the
theory concerns the path of the fire and, in a sense, its point of origin. It
did not advance or support
any conclusion with respect to the existence of dry
lighting.
- Before
turning to the final factor identified by Dr Green, it is necessary to mention a
factor as to the cause of the fire mentioned
by him during the concurrent
evidence to support his thesis regarding lightning.
- Dr
Green also referred to the evidence of low intensity fire west of the bund in
support of his theory as to the cause of the fire.
In this respect, particular
reliance was placed upon Mr Walker’s observations as to “leaf
freeze”. This evidence
drew a sharp rejoinder from Messrs Crowe and
Nystrom, who emphatically disputed its relevance to a theory of dry lightning.
In this
respect Mr Crowe opined, “[leaf freeze] is simply an indication of
which way the wind was blowing at the time the fire passed”
and concluded
“[its] a collection of leaves that doesn't tell us a thing”. Mr
Nystrom accepted the opinion of Mr Crowe
and added, in this respect,
“[t]he explanation that Dr Green gave there didn't sound to me like it was
an explanation as to
why dry lightning was the likely cause”.
- In
the same light, Dr Green’s observations with respect to the ellipsoid
pattern of the fire also attracted much attention.
Mr Nystrom highlighted,
again, that the observations, whilst objectively apparent on the evidence, were
not relevant to the theory
of dry lightning.
- The
final factor relied upon by Dr Green was the recollection of Mr Jon Reeves
hearing an explosion. Mr Jon Reeves evidence in that
respect was as
follows:
Between 1.30pm and 2pm ... I heard like a big explosion like something blowing
up. The sound came from the vicinity of the rubbish
tip...
I saw smoke and flames ...There were sounds of more explosions like aerosol cans
and gas bottles exploding.
- In
my view, Dr Green’s evidence on this theory was demonstrative of the
expert moving to a position of advocacy in support of
his theory as to the cause
of the fire igniting, or, at least, Dr Green being wedded to a theory,
irrespective of the difficulty
confronting its maintenance. For example, Dr
Green attempted to explain why, notwithstanding Mr Jon Reeves did not in any way
refer
to thunder, he should be taken to have been describing the
same:
WITNESS GREEN: If I may add to that, I don't disagree with the misuse of the
term "explosion" but in this setting you had witnesses
that were half a
kilometre away from the sound, if it was generated at the tip, and it was loud
enough to what appears to be a startle
reaction. So they were unaware of
anything until after they heard that noise and they looked around. Consequently
it has to be loud
enough to go effectively against the wind to actually be
heard.
Now things like aerosol cans popping off would not be loud enough under those
circumstances. There's no evidence of large gas cylinders
which might give that
type of effect being there on that site and you're left with other sources of
loud sound and one of those is
lightning.
- The
evidence he gave, in this respect, was an admixture of speculation and
stretching the limits of credulity to maintain what was
potentially inconsistent
with his theory in order to maintain his theory.
- I
would interpose that my general impression of Messrs Crowe and Nystrom was that
they consistently attempted to give evidence in
a fair and balanced way, readily
conceding when adjustments or reflection were required in any part of their
evidence. An illustration
of such a response by Mr Nystrom, in this respect,
follows:
WITNESS NYSTROM: ... One could really only ask the person - my, my views in my
experience when people talk about an explosion, they,
they hear a noise, they
hear a bang, and many things make a bang, a parting arc, asbestos cracking, a
gas bottle discharging when,
when it's been cracked apart by the heat of a fire,
aerosol cans discharging. They're not really explosions in the technical sense,
they're more like deflagrations, many of those things, but they are commonly
called explosions.
- In
my view, Dr Green’s theory that the fire was caused by a lightning strike
must be rejected for the following reasons. First,
while solar flux and extreme
weather conditions include conditions conducive to the formation of clouds, no
witness gave evidence
of observing clouds at the time of the commencement of the
fire.
- Secondly,
Messrs Nystrom and Crowe roundly rejected Dr Green’s theory on leaf
freeze. I prefer their evidence as more objectively
based and accept their
reasons for the same.
- Thirdly,
and most significantly, in my view there was no evidence of the existence of
thunder, a necessary pre-condition for lightning.
- I
do not consider Mr Jon Reeve’s evidence of hearing an explosion may be
converted to an observation of thunder. Thunder is
a common experience in the
community. The phenomenon is commonly, if not inevitably, described as such
– ‘thunder’.
It strains credulity that Mr Jon Reeves, having
heard thunder, would convey that he heard “an explosion” and then
make
no reference to thunder whatsoever.
- That
analysis cannot be explained away by theories as to whether or not, there may or
may not have been material within the Tip capable
of causing an explosion.
- Further,
when Mr Jon Reeves refers to the “big explosion”, he redirects it as
“a big explosions like something blowing
up” indicating he is
referring to something like the explosion of the aerosol cans and gas bottle
explosions he later refers
to in his evidence.
- The
evidence does not sustain lightning strikes as the cause of the
fire.
Spontaneous Combustion
- The
common place understanding of spontaneous combustion is captured in the
following definition: “the ignition of a substance
or body from the rapid
oxidation of its own constituents, without heat from any external source”
(Macquarie Dictionary (2nd ed, 1992, The Macquarie Library)).
- The
expert opinion expands upon that definition, describing spontaneous combustion
as the product of two natural forces that operate
in sequence:
- (1) The
initiation or “feeding” phase involving bacteria. This stage enables
the internal moisture to develop, creating
an environment for bacteria to break
down material, which in turn generates the requisite heat of 70 degrees
Celsius.
- (2) The
oxidation phase (also described as the “exothermic stage”). Oxygen
must diffuse into the heated area without the
heat escaping in order to generate
a reaction referred to as “thermal runaway”. In other words, the
heat generated must
be greater than the dissipation in order for spontaneous
combustion to occur.
- In
terms of spontaneous combustion in a tip, the experts agreed that three factors
are likely to contribute to the prospect of spontaneous
combustion, namely, pile
size, moisture content and pile compaction.
- The
degree to which those factors contribute to spontaneous combustion was a matter
of much controversy; particularly when viewed
through the prism of the actual
circumstances operating at the Tip at the time of the fire.
- Taken
at a level of generality, the experts opined that spontaneous combustion may be
expected to arise within the following circumstances:
- (1) Mr
Crowe’s prescription for outbreak by spontaneous combustion was
“fresh cut vegetation, usually of small size, in
a heap or pile
that’s usually substantial, greater than 3 metres or 2 and a half metres
in height”. However, it is not
limited to green waste (for example, it may
occur amongst oily rags or laundered towels).
- (2) Mr Nystrom
identified a typical minimum pile size as 3 metres. Further, the moisture
content needed to be between 20 and 45% by
weight.
- (3) Dr Green
noted that a prerequisite to the process is for oxygen to continuously diffuse
through a pile. Next, the moisture content
is important for the enzymes or
bacteria to break down the material and that only will heat it up to about 70
degrees Celsius. Finally,
the type of material (or refuse) being compacted is
relevant as you must have a material that then can go on, with sufficient
oxygen,
to actually raise the heat further.
- A
lynchpin to the spontaneous combustion at a tip, based on the natural forces
referred to above, was the temperature generated by
the operation of them, that
is, the heat generation within (as distinct from the temperature of the day
itself). As to the relevance
of the temperature of the day being high, Dr Green
accepted this was relevant to each possible source of ignition. Further, the
prospect
of that ignition may produce a bigger fire is added to by wind and high
ambient temperature (this observation was not limited to
spontaneous
combustion).
- Out
of those largely theoretical constructs came the competing opinions of the
experts as to whether the circumstances operating at
the Tip at the time of the
fire were sufficient to attribute causation to spontaneous combustion.
- Before
coming to the summary of the opinions expressed through the concurrent evidence
it should be mentioned that the Court received
photographic evidence of the
state of the Tip:
- (1) Various
photographs of the Tip taken on October 2009, annexed to the Statement of
Bradley Peach.
- (2) Various
photographs of the Tip taken prior to the fire, taken between 17-24 December
2009 (the source of that evidence was not
identified).
- (3) Various
photographs of the Tip taken after the fire.
- It
should be noted that the Court also had evidence as to the practices to
controlling fire risk such as pushing up dirt on waste
piles, together with
other evidence such as the Tip layout, including, inter alia, Annexure B
and a marked aerial photograph of the Tip identifying various aspects of the
Tip, annexed to the statement of Kevin Mansfield
dated 9 September 2016.
- The
opinion as to spontaneous combustion evolved throughout the course of the
evidence, following the filing of their respective reports
and the concurrent
evidence, save for Dr Green who maintained his position that spontaneous
combustion was not a cause of the fire.
- The
position of both Messrs Nystrom and Crowe were encapsulated in the Joint Report.
After joining in the uniform position that the
“actual and probable cause
of the fire cannot be identified” they were recorded as stating
spontaneous combustion was
a possible cause. However, over the course of
concurrent evidence, they both substantially qualified that opinion.
- Mr
Nystrom initially concluded that spontaneous combustion was “the most
likely” cause of the fire in his report. He opined:
The fire was most probably the result of spontaneous ignition of green waste or
ignition by way of inappropriately dumped rubbish,
for example, broken glass in
dry vegetation, or electrical interaction from a dumped car battery. The nexus
between the prevailing
weather conditions and the outbreak of fire, however,
mitigates against the latter possibility in favour of the other two
possibilities.
- During
the course of concurrent evidence, Mr Nystrom conceded that “spontaneous
combustion” was only identified as “likely”
because it
“appealed to him the most”. However, more significantly, he
ultimately concluded that there was not enough
evidence before the Court to
establish spontaneous combustion as the cause. In particular, he accepted the
photographic evidence
cannot reveal with any kind of certainty the level of
compaction, degree of moisture or internal temperature of a pile of refuse.
- A
similar conclusion was reached by Mr Crowe with respect to residual burn and
spontaneous combustion, noting he stated did not differentiate
between the two.
Mr Crowe confirmed on the evidence he cannot confirm what caused the fire.
- Dr
Green maintained his position and described spontaneous combustion as
“unlikely because... [t]he conditions necessary for
spontaneous combustion
do not appear to have existed”. In particular, he opined that the small
dumps of green waste would have
allowed for the dissipation of heat, and,
accordingly, prevent “a thermal runaway reaction”. As to earlier
rainfall in
the month and its potential to impact the moisture content of the
same piles, following subsequent dumping and potential compaction,
he conceded
“[i]t might do”. However, he maintained “it depends on the
level of compaction” and “the
main driving force [for spontaneous
combustion] is activating the oxidation, not outside influences”.
- The
evidence did not sustain spontaneous combustion as the cause of the
fire.
Residual Burn
- Both
Messrs Crowe and Nystrom identified residual burn as a possible cause of the
fire in the Joint Report. Residual burn is the result
of “already
smouldering material” that may, for example, be contained within a hollow
log or pile (or otherwise compacted).
However, during the course of concurrent
evidence, residual burn was merely theorised as a possibility; it was only
discussed using
hypothetical examples. No evidence in specific relation to the
Tip was proffered to support the theory as a possible or probable
cause.
- Mr
Nystrom acknowledged a difficulty in differentiating between what was residual
burn and what was a result of the fire itself, especially
in the absence of
material nearby which was already burnt. Dr Green acknowledged an absence of
evidence to establish that cause.
Both Messrs Nystrom and Crowe agreed it was
“difficult to pinpoint” on the evidence.
- The
material before the Court cannot sustain the theory of residual burn as a cause
of the fire.
Deliberate Ignition
- Each
expert cited deliberate ignition as a “possible” cause in the Joint
Report, only Dr Green contended it was a “real”
possibility.
However, following early rulings as to the admissibility of evidence, Dr
Green’s theory could not be ultimately
sustained because the evidentiary
foundation was removed by evidentiary ruling excluding reference to the
observations Mr Mark Springall
(a witness that had previously provided a
statement but was not ultimately called or relied upon by either party).
- Following
that ruling, the only evidence to support the theory was an observation by Mr
Grosse that he met a man at the road gate
upon arrival at the fire. However,
this observation was undermined by Mr Grosse’s lack of clarity as to who
was, in fact, present.
It was also recognised by Dr Green that evidence of
deliberate ignition may have been destroyed following the grading efforts of
Mr
Pumpa, along the western boundary and the back burning activities of the Rural
Fire Service.
- The
evidence before the Court cannot sustain deliberate ignition as a
cause.
Glass and Batteries
- The
highest that any acceptance of either theory came to in the Joint Report was by
Messrs Crowe and Nystrom, who identified them
as “possible
causes”.
- By
the time of concurrent evidence, there had been a convergence of views, by all
three experts and the parties, that ignition of
refuse by glass (i.e.
“lens effect”) or arcing on batteries were unlikely causes of the
fire. In particular, both Dr
Green and Mr Nystrom opined that ignition by broken
glass was not only difficult to prove but also difficult to achieve even by
deliberate
means. Turning to the possibility of ignition by batteries, My
Nystrom then observed “there is no evidence that would actively
prove that
this was the cause of the fire”. (However, he noted that such evidence,
“may have easily been overlooked by
investigators at the tip”).
- Due
to this consensus amongst the experts, that the above possible causes were
unlikely within the environment of the Tip, cross-examination
was not
pursued.
- Ignition
of the fire by glass or batteries was not established on the
evidence.
Conclusion: Origin of the Fire
- The
evidence establishes that the fire commenced in the western area of the Tip. No
conclusion as to the precise location of the ignition
of the fire is available
on the evidence. Certainly the evidence does not sustain the contention by the
plaintiff that the fire commenced
at the top of the
bund.
Conclusion: Factual causation – Ignition of the
Fire
- The
plaintiff has failed to establish the cause of the fire. The plaintiff cannot,
therefore, prove that the fire was caused in breach
of any duty owed by the
defendant to her (or the other group members).
- I
find that the plaintiff has failed to prove, on the balance of probabilities,
causation namely, that any negligence of the defendant
caused the harm suffered
by the plaintiff. In the language of s 5D(1)(a), the plaintiff has not proved to
the requisite standard any negligence was a necessary conclusion of the
occurrence of any harm suffered
by the plaintiff.
- Hence,
the plaintiff’s case on this aspect of the claim, vis-à-vis
pleadings concerning the ignition of the fire, must
fail.
- That
does not resolve whether there was a duty on the defendant to prevent the escape
of fire of unknown cause, if so, whether it
was breached and whether there is
proven a causal relationship between any such breach and harm to the plaintiff.
Those issues will
be considered below.
NEGLIGENCE: ESCAPE OF THE
FIRE FROM THE TIP
DUTY OF CARE
Submissions of the Parties
The Plaintiff
- In
summary, the submissions of the plaintiff with respect to duty of care were as
follows:
- (1) This
proceeding is of course governed by the Civil Liability Act. That Act
does not define when a duty exists between parties and thus the common law will
continue to apply in determining the existence
of and scope of any duty.
- (2) Having
regard to the evidence in this case, the plaintiff submitted, an analysis of the
salient features identified by Allsop
P in Caltex Refineries (QLD) Pty Ltd v
Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
(“Stavar”) (at [103]) resolves in imposition of a duty
of care on the defendant.
- (3) The
plaintiff submitted the following features are salient to the determination of
whether the defendant owes a duty of care (as
adapted from
Stavar):
- (a) the
foreseeability of harm;
- (b) the extent
of the defendant’s knowledge (either actual or constructive) that its acts
or omissions may cause harm to the
claimants;
- (c) the nature
of the harm;
- (d) whether a
duty of care is consistent with the terms, scope and purpose of the relevant
statutory regime;
- (e) the degree
and nature of the control which the defendant was able to exercise to avoid the
harm;
- (f) the nature
or the degree of the hazard or danger liable to be caused by the defendant's
conduct or the activity controlled by
the defendant;
- (g) the
proximity or nearness in a physical, temporal or relational sense of the
plaintiff to the defendant;
- (h) the degree
of vulnerability of the plaintiff to harm from the defendant's conduct; and
- (i) any
potential indeterminacy of liability (when considering the existence of duty in
novel cases).
- (4) The
question before the Court is “whether or not the defendant owe[d] a duty
to the plaintiff in respect of the consequences
or to protect against the
development and consequences of the fire escaping from the Tip”.
- (5) It was
submitted that the defendant owed a duty to the plaintiff to “undertake
the necessary precautions or the precautions
of a reasonable person in their
position... to implement various steps” to guard against the occurrence of
that fire igniting
at and/or spreading beyond the Tip.
- (6) Turning
first to foreseeability of risk, the plaintiff submitted, the defendant had
“intimate knowledge” that its
acts or omissions in connection with
the general operation of its landfills may cause harm to members of the public.
Hence, its knowledge
and conduct with respect to other tips under its control
are relevant to the question of duty.
- (7) Further, it
follows that it is “clearly foreseeable” that there is a risk
associated with inappropriate management
of the landfills both generally and
specific to the Tip. In written submission, the plaintiff noted: “There
was no issue in
this case about the foreseeability of a fire risk associated
with inappropriate management of landfills. There is no issue that the
claimed
losses were the types of losses foreseeably arising from a crystallisation of
that fire risk in rural NSW”.
- (8) In support
of the contention that the defendant should have foreseen the consequences of a
fire escaping, the plaintiff turned
to the defendant’s knowledge of the
risk of fire in three distinct respects: generally within rural areas and tips,
specific
to the circumstances at the Tip, and knowledge of previous fires. The
following submissions were advanced:
- (a) Knowledge
of risk may be determined subjectively and objectively. Emphasis was placed upon
the written correspondence before the
Court, namely, the letter of Mr Robert
Crawford to the Culcairn North West Fire Brigade, in relation to fire safety at
waste depots
operated by the CSC, and the Greater Hume Shire Waste Management
Strategy 2007-2010 and the Culcairn Waste Management Strategy 2004,
hereafter
referred to as the “Waste Management Strategy reports”. It was
submitted that such correspondence indicates
the foreseeability of risk
associated with fuel existence and build up at the Tip and knowledge on part of
the defendant.
- (b) In the
light of the Waste Management Strategy reports, the plaintiff also relied upon
the limited measures, accepting adequacy
was a point of contention (to be
addressed below under the heading of breach), the defendant had in place to
address the risk of
fire ignition and spread from the Tip, namely, by slashing a
narrow firebreak, having separate waste disposal areas and burning some
green
waste each year weather permitting, again indicating the foreseeability of the
risk. It was submitted that this was, again,
demonstrative of knowledge of the
risk.
- (c) Further,
the defendant had knowledge of the condition of the Tip, namely, its physical
characteristics that would increase the
risk of ignition and spread of fire.
Accordingly, the condition of the Tip in 2009 leading up to the fire on 17
December 2009 was
identified as “a critical aspect of the case”.
- (d) The
defendant had specific knowledge of the problems that contributed to the risk of
fire ignition and escape if not properly
managed within the Tip and, it follows,
was aware of the risk that may eventuate: fire ignition at the Tip and/or
escape.
- (e) The
defendant had exclusive control over the management of the Tip and failed to
take steps to implement adequate measures in
order to reduce the risk. To that
end, the plaintiff also contended that the defendant had no relevant budgetary
constraints in terms
of their implementation.
- (f) In summary,
the defendant as at December 2009 had knowledge of the
following:
- (i) the risk of
fire at landfills generally and specifically at the tip;
- (ii) actual
fires at its own tips;
- (iii) the very
primitive nature of fire risk management in place, comprising separation of
waste deposit areas and a completely ineffective
firebreak in the event a fire
started in at the Tip on a day of high bushfire risk;
- (iv) the
absence of any slashing, spraying or controlled burn of vegetation to reduce
available fuel inside the tip in the years before
the fire; and complaints as to
the state of the Tip set out in its own Waste Management Strategy reports and
that produced by the
Rural Fire Service in 2009.
- (9) In light of
the knowledge of the previous fires, the plaintiff submitted that the nature of
the harm that may eventuate, if the
defendant failed to exercise reasonable care
in connection with its operation of the Tip, was apparent. It was submitted that
the
defendant would have had “the knowledge of the enormous fires of
2003... and then the Black Saturday fires in 2000”.
Further, the potential
harm was serious and, again, demonstrated by previous fires: death, injury and
widespread destruction of property.
It was submitted in oral submissions,
“[i]nsofar as the existence of the duty, the nature of the harm that flows
from the escape
of fire is demonstrated by what in fact happened on this
occasion which was the nature of fire that could be anticipated, the
consequences
could be anticipated”.
- (10) The
severity of the consequence in the event of a failure to take reasonable care,
it was submitted, together with the foreseeability
of risk and the knowledge of
the same, supports the conclusion that a duty was owed. It was also submitted
that unmanned landfills
present “known risks to fire”. It was
contended such a factor supports the imposition of a duty of care on those who
manage landfills.
- (11) A further
factor relied upon, concerned the nature and degree of the hazard. To that end
the plaintiff referred back to the Waste
Management Strategy reports. Both
reports recognised that there was a risk of fire – which was one of the
bases upon which
the reports were produced.
- (12) At all
relevant times, as earlier mentioned, the defendant had operated and controlled
the Tip and, it follows, the defendant
had power and control over the relevant
risks associated with landfills – including fire risk. An example included
the power
to issue notices to landowners to require fire control measures be
carried out to its satisfaction, this included the land owned
by the Department
of Lands adjacent to the Tip (namely, the golf course).
- (13) Further
factors which were submitted as relevant to the imposition of a duty of care
included the following:
- (a) The
relationship between the plaintiff and the defendant on the basis of geographic
location. It was submitted that it was foreseeable
that a major bushfire ignited
by the defendant’s assets might spread; therefore, the fire path is
particularly relevant, in
that respect, as it created the physical connection
(described as being akin to that of land owner and occupier).
- (b) The
vulnerability of the plaintiff was another indicia towards determining the
existence of duty of care. The plaintiff, it was
submitted, was in a vulnerable
class of people susceptible to harm caused by a bushfire ignited by the
defendant’s assets escaping:
having no power or the ability to exercise
any control over the defendant’s maintenance or operation of its
landfills, including
the management of refuse and vegetation inside landfills.
In oral submissions, the plaintiff also refuted the defendant’s contention
that protection was available via insurance.
- (c) As to the
policy consideration of indeterminacy of liability in novel cases, it was
submitted that the spread of fire between
land owners does not fall into the
category of “novel” (Staver at [102]); damage caused by fire
escape is an established tort. Further, it was submitted that the issue of
indeterminacy does not
arise unless a claim is novel. The plaintiff cited the
example of Electro Optic Systems v State of New South Wales (2014) 10
ACTLR 1; [2014] ACTCA 45 (“Canberra Bushfire case”) as
“a classic novel claim”. Another example was given, namely, a
substantial fire that produces its own weather
pattern so as to create
lightning, “so people who aren't in a contiguous burn of the fire and
suffer damage as a consequence
of that lightning created by that fire also have
an entitlement because that's a part of the weather pattern created by the
fire”.
- (d) In the same
light, it was submitted that a class does not become indeterminate “merely
because of its size”. The plaintiff
acknowledged the element of
indeterminacy in defining the class – as they were not able to be defined
prior to the tort –
but again stressed the claim itself was not novel.
Reliance, in this respect, was placed upon Perre v Apand Pty Ltd (1999)
198 CLR 180; [1999] HCA 36 (“Perre v Apand”) at [107] (per
McHugh J):
[107] Liability is indeterminate only when
it cannot be realistically calculated. If both the likely number of claims and
the nature
of them can be reasonably calculated, it cannot be said that imposing
a duty on the defendant will render that person liable “in
an
indeterminate amount for an indeterminate time to an indeterminate
class”.
(14) The plaintiff declined to define the geographical limit of the class, for
example, within 15 kilometres of the Tip. It relied
upon, as stated above, the
physical connection being created by where the fire went. In this sense, the
class is prospective. However,
in the context of a widespread or potentially
widespread group affected by a tort, it was submitted that “in this
particular
case that policy consideration [with respect to indeterminacy], to
the extent that it should be made, is a policy consideration that
says the duty
in that the nature of the breach that may occur can be so widespread and
catastrophic is established because of it”.
The
Defendant
- In
summary, the defendant’s submissions, with respect to this subject, were
as follows:
- (1) The
defendant contended that the initial task is to identify the relevant risk:
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007]
HCA 42 (“Dederer”). This is necessary because the way in
which the risk is framed must address the precautions said to be necessary to
address
it: Garzo v Liverpool / Campbelltown Christian School [2012]
NSWCA 151 (“Garzo”) at [22] (per Meagher JA), cited with
approval in Fairall v Hobbs (2017) 347 ALR 151; [2017] NSWCA 82
(“Fairall”) at [74] per Payne JA (McColl AP and Leeming JA
agreeing).
- (2) Two risks
were identified as relevant to the Court’s determination of the scope of
duty:
- (a) that a fire
would start at the Tip and spread beyond it causing loss and damage 11
kilometres away (ignition); and
- (b) that a fire
having started in the Tip it would not be extinguished before moving to the golf
course and then causing loss and
damage up to 11 kilometres away
(propagation).
- (3) Each risk
requires separate consideration of the duty question.
- (4) The
following concessions were made:
- (a) there is
always a risk of fire on a landfill tip. To that extent the defendant was not
able to control the risk.
- (b) the Tip
fell within the responsibility of the defendant and that the defendant executed
control over its operations.
- (5) However,
turning to the first matter, it was submitted, relevant to the control of that
risk was the condition of the adjoining
golf course and, it was submitted, the
defendant had no control over that matter. Similarly with each of the properties
between the
Tip and the plaintiff: each had to have fuel on it to permit it to
burn.
- (6) As to the
second, in response to the submission that the Tip was “totally”
under the control of the defendant, the
following submissions were advanced:
first, the defendant’s power over this land derived from the Crown
Lands Act, not from ownership as such and, secondly, the risk of fire on
this land was not totally under the defendant’s control and
that is true
in a number of ways. In relation to the second aspect several factors were
noted:
- (a) the
defendant was obligated to provide a form of waste disposal service to the
residents of Walla Walla;
- (b) whilst
supervisory input was exercised over those who dumped their material at the Tip,
“that could never be a perfect solution;
and
- (c) you could
not eliminate the risk of fire (a point conceded by the plaintiff and recognised
by lay witnesses and, in particular,
the experts).
- (7) The
defendant submitted that the leading statement guiding the assessment of the
existence of a duty of care in novel circumstances
is Stavar. Allsop P
there listed a non-exhaustive array of considerations relevant to determining
the existence or not of a duty of care. His
discussion of duty began at [61] and
“the array” appears at [103].
- (8) Mr Sheldon
was critical of the plaintiff’s “shopping list” reliance upon
the factors listed in Stavar and, in oral submissions, submitted that
subsequent case law cautioned against such an approach.
- (9) There is no
evidence of the plaintiff having relied on the defendant, “general
reliance” being insufficient to found
a duty of care: Pyrenees Shire
Council v Day (1998) 192 CLR 330; [1998] HCA 3.
- (10) The
defendant also referred to the Canberra Bushfire case. Whilst the facts
are not directly applicable to the present case, the defendant identified the
following issue as relevant: “So
where the duty is said to be owed to
people not on adjoining land, we say that is the novelty and one then must look,
as a matter
of practicality, to what is the principle that determines how far
the liability spreads”.
- (11) The
defendant did not assume responsibility: it was required to provide services to
the residents of the municipality and to
“take over” the running of
the tip from its predecessor. It did not have a choice as on formation it took
possession
of the tip.
- (12) As to the
argument of vulnerability, it was contended that the plaintiff could protect
herself from the harm by affecting insurance.
Further, it was contended that the
plaintiff was “no more vulnerable than the general public who might come
into the sector
through which a fire moves, depending on weather”.
- (13) There was
no relevant relationship between the plaintiff and defendant.
- (a) The
relationship was no different to an indeterminate number of relationships the
defendant had with ratepayers, residents and
those merely temporarily connected
to the tip by the coincidence of the occurrence of the fire and their location
at the time of
the fire.. A duty cannot spring up when the risk comes home. That
is, the beneficiary of a duty of care cannot be identified by reference
to the
fact of him or her suffering harm: a duty must be capable of articulation before
the risk arises.
- (b) There was
no physical proximity between the defendant and the plaintiff.
- (c) The case
before the Court is “novel”. This submission was supported by an
analysis of the circumstances of the plaintiff
(exclusive of the class): the
plaintiff’s property was 11 kilometres away, not adjoining the Tip and
separated by at least
one road. Further, there was at least one intervening
landowner (“and probably very many more”) closer to the defendant's
Tip than was the plaintiff.
- (14) In order
to articulate the duty in this case it is necessary to extend it to any person
who could suffer harm by (a) the occurrence
of a fire on a tip, or (b) the
escape of a fire from the tip.
- (15) Since it
cannot be known in advance where or when harm will be suffered no person can be
conclusively eliminated from being owed
a duty if there is the chance of a fire
starting and then spreading sufficiently far in their direction. The direction
cannot be
known prior to the fire starting. This means that there are an
indeterminate number of people potentially affected by the outbreak
of
fire.
- (16) In this
respect, reference was also made to the plaintiff’s hesitancy to confine
the geographical limit of the class but
prefer the classification of
“those who were downwind”. It was submitted such a classification is
problematic owing to
the inconsistency of wind and it is effectively “too
wide”.
- (17) Because
the plaintiff cannot prove how this fire started (or where) this duty must apply
not only to a fire starting by reason
of some natural force but to a
deliberately lit fire or to a fire caused by the carelessness of some other
person who was within
the Tip at the time.
- (18) Further,
the chance of fire at any one of the other landfill sites operated by the
defendant is the same such that the duties
would expand further and would still
be indeterminate.
Legal Principles: Duty of
Care
- The
Civil Liability Act does not define when a duty exists between parties.
Accordingly, the common law applies in determining the existence and scope of
a
duty of care.
- The
question as to whether there exists a duty of care in negligence is a question
of law: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at
[62] (per Gummow J).
- The
proper resolution of the (alternative) action on negligence depends upon the
existence (and scope) of the relevant duty of care:
Dederer at [18].
- Regardless
of the scope of the duty, a duty of care imposes an obligation to exercise
reasonable care. It does not impose a duty to
prevent potentially harmful
conduct (Dederer at [18]).
- Having
rejected the plaintiff’s case as to causation with respect to ignition,
the remainder, to which this part of the judgment
concerns, becomes one in which
the plaintiff claims the defendant was under a duty to the plaintiff to take
reasonable care to avoid
the risk of loss occasioned by the fire spreading
before the Tip. In this respect, the plaintiff’s claim is for loss
sustained
as a result of damaged property.
- Where
a posited and contested duty falls outside the established categories of
relationship which the law has recognised as giving
rise to a duty of care or is
a novel one, as Allsop P (as he then was) stated in Stavar, at [102],
“the proper approach is to undertake a close analysis of the facts bearing
on the relationship between the plaintiff
and the putative tortfeasor by
references to the ’salient features’ or factors affecting the
appropriateness of imputing
a legal duty to take reasonable care to avoid harm
or injury”.
- The
defendant submitted that the posited duty in this matter fell outside the
established categories of relationship which the law
recognises as giving rise
to a duty. The duty of care sought to be found was novel. The defendant
submitted that was so because there
was “no physical proximity”.
There was a road and properties not owned by the plaintiff lying between the Tip
and the
plaintiff. Those properties were closer to the Tip than the plaintiff.
The plaintiff ultimately contested that position, although
nonetheless embarked
upon a discussion of the various salient features referred to in Stavar
(as did the defendant).
- I
do not accept the defendant’s submission as to novelty, in this respect,
so far as it goes to the existence of a duty. It
matters not that the plaintiff
was not an immediate neighbour. The defendant had relevant control of the land
and understood, in
that respect, the operation of a Tip was a dangerous
activity. There was a risk that the escape of the fire would damage her property
and that risk was reasonably foreseeable: Burnie Port Authority v Gerard
Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 530-531 and 556-557.
- Nonetheless,
in deference to the submissions of the parties as to the features of the matter
which bore upon whether the defendant
owed a duty of care to the plaintiff, I
will undertake an examination of the features of the matter which establish a
duty of care
as if, as it were, the duty of care sought to be found was a novel
one.
- Both
parties relied upon the judgment of Allsop P in Stavar which provided a
non-exhaustive list of considerations relevant to the evaluative task of
imputation of a duty. That list is as follows
(Stavar at
[103]):
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to
avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the
defendant’s conduct, including the capacity and reasonable
expectation of
a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the
plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the
defendant and the plaintiff or a person closely connected
with the
plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the
defendant’s conduct or the activity or substance
controlled by the
defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct
will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the
harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals,
including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or
statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the
existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and
coherence in the structure and fabric of the common
law.
- As
was made clear in Stavar, there is no suggestion that it is compulsory in
any given case to make findings about all of these features although the
consideration
of any relevant features requires the close examination of the
relevant facts.
- Allsop
P’s judgment in Stavar makes further observations as to the task of
imputation of a duty which is important. Those passages of the judgment are as
follows
(at [105] and [106]):
[105] The task of imputation has been expressed as one not involving policy, but
a search for principle: see especially Sullivan v Moody (at 579 [49]).
The
assessment of the facts in order to decide whether the law will impute a
duty,
and if so its extent, involves an evaluative judgment which includes
normative
considerations as to the appropriateness of the imputation of legal
responsibility and the extent thereof. Some of the salient features
require an
attendance to legal considerations within the evaluative judgment.
[106] I have described “foreseeability” as a salient feature; it is
perhaps better expressed that the use of salient
features operates as a control
measure on foreseeability employed at the level of abstraction earlier
discussed, for example by Glass
JA in Shirt as the foundation for the
imputation of duty of care. In a novel area, reasonable foreseeability of harm
is inadequate alone to found
a conclusion of duty. Close analysis of the facts
and a consideration of these kinds of factors will assist in a reasoned
evaluative
decision whether to impute a duty. Whilst simple formulae such as
“proximity” or “fairness” do not encapsulate
the task,
they fall within it as part of the evaluative judgment of the appropriateness of
legal imputation of responsibility.
- In
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
(“Moody”) at [50], the High Court (Gleeson CJ, Gaudron,
McHugh, Hayne and Callinan JJ) stated:
[50] Different classes of case give rise to different problems in determining
the existence and nature or scope, of a duty of care.
... The relevant problem
will then become the focus of attention in a judicial evaluation of the factors
which tend for or against
a conclusion, to be arrived at as a matter of
principle...
- Counsel
for the defendant correctly made the submission that caution had been expressed
in “later cases” regarding the
use of Stavar as a shopping
list of factors, although caution as to that approach was expressed by Basten JA
in that very matter.
- Basten
JA stated (at [172]) that the factorial approach should not be treated as a
shopping list, all items of which must have application
in a particular case.
Rather, it provided a list of considerations which should be considered, as
potentially relevant, depending
on the kind of case before the Court.
- The
mechanical application of the “salient features” in Stavar as
a shopping list of criteria to determine the existence and scope of a duty of
care received recent attention in Strategic Formwork Pty Ltd v Hitchen
[2018] NSWCA 54 at [62], when Basten JA (with whom Simpson JA, on this
discussion, and Sackville AJA agreed) made the following
observations:
[62] Although the conclusion conforms to that reached by the trial judge, the
reasoning does not. In a critical passage in the reasoning
of the trial judge,
the “salient features” analysis set out by Allsop P in Caltex
Refineries (Qld) Pty Ltd v Stavar was adopted. However, the risk,
highlighted in Stavar itself, of treating the 17 listed salient features
as a shopping list is illustrated in the present case. The trial judge rather
mechanically
applied them, starting with findings that it was foreseeable that
an untrained casual employee would be injured by collapse of the
beams, through
to findings that there was no indeterminacy of liability, nor conflict with the
structure and fabric of the common
law, if a duty were imposed. Whether or not
Strategic owed a duty of care to the plaintiff depended entirely upon its
relationship
with RTS; most of the salient features were entirely irrelevant to
the relationship between RTS and Strategic. Only two “features”
were
directly material, namely a finding that Strategic had day-to-day control of the
system of work at the yard and that Strategic
assumed responsibility for the
system of work. The Stavar salient features were not directed to
establishing the relationship between two legal entities, neither of which was
the plaintiff
to whom the alleged duty was owed.
[Footnotes omitted].
- McHugh
J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA
54 (“Graham Barclay Oysters”) discussed the questions which
may require resolution in considering whether there exists a duty of care owed
by public authorities
(at [84]). His Honour had earlier discussed those
questions in Crimmins v Stevedoring Industry Finance Committee (1999) 200
CLR 1; [1999] HCA 59 (“Crimmins”) at [93]. Both Graham
Barclay Oysters and Crimmins were discussed in a passage from the
judgment of Basten JA (with whom Beazley P and Sackville AJA agreed) in
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 at
[36]- [39], which also aligned the discussion in those judgments with the notion
of salient features in Stavar. That passage is extracted
below:
[36] The statements of principles to be applied in determining whether a
defendant owes a plaintiff a duty of care have undergone
a degree of linguistic
metamorphosis over the last two decades. It is now common in this country to
require reference to the "salient
features" of the relationship between the
plaintiff and the defendant. In Caltex Refineries (Qld) Pty Ltd v Stavar
[2009] NSWCA 258; 75 NSWLR 649, Allsop P provided a list or catalogue of some 17
salient features, described as "a non-exhaustive universe of considerations of
the kind relevant to the evaluative task of imputation of the duty and the
identification of its scope and content": at [103] and
[104]. However, the value
of such a catalogue is limited. As noted by McHugh J in Crimmins at
[77]:
"Since the demise of any unifying principle for the
determination of the duty of care and the general acknowledgment of the
importance
of frank discussion of policy factors, the resolution of novel cases
has increasingly been made by reference to a 'checklist' of
policy factors. The
result has been the proliferation of 'factors' that may indicate or negative the
existence of a duty, but without
a chain of reasoning linking these factors with
the ultimate conclusion. Left unchecked, this approach becomes nothing more than
the exercise of a discretion ... There will be no predictability or certainty in
decision-making because each novel case will be
decided by a selection of
factors particular to itself. Because each factor is only one among many, few
will be subject to rigorous
scrutiny to determine whether they are in truth
relevant or applicable."
[37] Dealing with a case involving a public authority, McHugh J identified six
questions, the answers to which might determine the
existence or absence of a
duty of care: at [93]; see also Graham Barclay Oysters Pty Ltd v Ryan
[2002] HCA 54; 211 CLR 540 at [84].
"1. Was it reasonably foreseeable that an act or
omission of the defendant, including a failure to exercise its statutory powers,
would result in injury to the plaintiff or his or her interests? If no, then
there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did
the defendant have the power to protect a specific
class including the plaintiff
(rather than the public at large) from a risk of harm? If no, then there is no
duty.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense
that the plaintiff could not reasonably be expected
to adequately safeguard
himself or herself or those interests from harm? If no, then there is no
duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of
harm to the specific class including the plaintiff
if it did not exercise its
powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise
of "core policy-making" or "quasi-legislative" functions?
If yes, then there is
no duty.
6. Are there any other supervening reasons in policy to deny the existence of a
duty of care (e.g., the imposition of a duty is inconsistent
with the statutory
scheme, or the case is concerned with pure economic loss and the application of
principles in that field deny
the existence of a duty)? If yes, then there is no
duty."
[38] Gummow and Hayne JJ in Graham Barclay noted that the existence or
otherwise of a common law duty of care allegedly owed by a statutory authority
"turns on a close examination
of the terms, scope and purpose of the relevant
statutory regime": at [146]. The joint reasons continued at [149]:
"An evaluation of whether a relationship between a
statutory authority and a class of persons imports a common law duty of care is
necessarily a multi-faceted inquiry. Each of the salient features of the
relationship must be considered. The focus of analysis is
the relevant
legislation and the positions occupied by the parties on the facts as found at
trial. It ordinarily will be necessary
to consider the degree and nature of
control exercised by the authority over the risk of harm that eventuated; the
degree of vulnerability
of those who depend on the proper exercise by the
authority of its powers; and the consistency or otherwise of the asserted duty
of care with the terms, scope and purpose of the relevant statute. In particular
categories of cases, some features will be of increased
significance."
[39] The joint reasons also noted that "[t]he factor of control is of
fundamental importance in discerning a common law duty of care
on the part of a
public authority": at [150].
- Before
turning to the features relied upon by the plaintiff in the present case,
attention may be directed to the observations of
Basten J in Stavar as to
the distinction between a duty to care and a breach of that duty. His Honour
considered that some factors that are relevant
to determining the existence of a
duty may also be relevant to questions of breach (at [176]). He stated that the
distinction between
the existence of a duty and its breach is well understood
but will depend in a particular case upon the degree of precision with
which the
duty is identified (at [164]). The distinction drawn by his Honour was as
follows (at [177]):
[177] To the extent that similar factors are relevant in determining both duty
and breach thereof, a critical distinction is the
position from which each is to
be assessed. Duty requires an objective prospective assessment of the risks
foreseeable as possible,
but not farfetched or fanciful, to the reasonable
person in the position of the defendant. In order to give content to the duty,
it would be necessary to consider the steps which might be available to such a
person, and his or her capacity to take such steps
as might mitigate or avoid
the risk. The assessment of breach involves an examination of the actual conduct
of the defendant and
the options available in the circumstances of the case.
This distinction is valid, but the interrelationship is clear. The
defendant’s
conduct will be judged against a standard set by the content
of the duty.
- Discussion
was continued in the following passages of his Honour’s judgment at
[178]-[179]:
[178] It has also been suggested that a determination as to duty is undertaken
at a higher level of abstraction or generalisation
than is the determination of
breach. In a sense, that is to say no more than that one is a prospective
(albeit conducted retrospectively)
assessment of the circumstances as they arose
prior to the conduct in question: Vairy (at 461 [124]) per Hayne J.
Nonetheless, such statements appear to encourage the consideration of duty at a
relatively high level
of abstraction. That approach has been said to have been
appropriate “by and large”: see Neindorf (at 352 [50]) per
Kirby J. The reason for such an approach is to avoid mixing questions of duty
with questions of breach: see, for
example, Brodie v Singleton Shire
Council [2001] HCA 29; (2001) 206 CLR 512 at 627 [309] (Hayne J); Graham Barclay Oysters
Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 585 [106] (McHugh J). This theme was
picked up again in Vairy, where Gummow J, referring to the reasoning of
Hayne J, stated (at 443 [60]–[61]):
“[60] The determination of the existence and
content of a duty is not assisted by looking first to the damage sustained by
the
plaintiff and the alleged want of care in that regard by the defendant.
There is a particular danger in doing so in a case such as
the present. The
focus on consideration of the issue of breach necessarily is upon the fate that
befell the particular plaintiff.
In that sense analysis is retrospective rather
than prospective.
[61] In his reasons in this appeal, Hayne J explains why an examination of the
causes of an accident that has occurred does not assist,
and may confuse, in the
assessment of what the reasonable person ought to have done to discharge the
anterior duty of care. Moreover,
an assessment of what ought to have been done,
but was not done, critical to the breach issue, too easily is transmuted into an
answer
to the question of what if anything had to be done, a duty of care
issue.” (Citation omitted)
[179] On the other hand, the higher the level of abstraction at which the duty
is identified, the less likely it is to provide any
useful role in determining
the outcome of the case: Vairy, per Gummow J (at 447 [73]); see also
Amaca Pty
Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust
Torts Reports 81–910 at 70,196 [137]; [2007] NSWCA 220; (2008) 5 DDCR 543 at 567 [137]. In
other circumstances, the High Court has emphasised the desirability of having
regard to the harm suffered by the plaintiff in
considering the scope of the
relevant duty, if any: see also Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd (“The Wagon Mound”) [1961] UKPC 1; [1961] AC 388 at 425
(Privy Council — Viscount Simonds). As explained by Gummow J and Hayne J,
in
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217
CLR
469 at 492 [81]–[82]:
“[81] In these circumstances it is neither
necessary nor appropriate to decide any question about the existence of a duty
of
care. ... It is not appropriate to do so because any duty identified would
necessarily be articulated in a form divorced from facts
said to enliven it.
And, as the present case demonstrates, the articulation of a duty of care at a
high level of abstraction either
presents more questions than it answers, or is
apt to mislead.
[82] Here, as in so many other areas of the law of negligence, it is necessary
to keep well in mind that the critical question is
whether the negligence of the
defendant was a cause of the plaintiff’s injuries. The duty that must be
found to have been broken
is a duty to take reasonable care to avoid what did
happen, not to avoid ‘damage’ in some abstract and unformed sense
...”
- The
defendant made a submission that, with respect to the determination of duty, the
initial task is to identify the relevant risk,
relying in that respect upon
Dederer.
- It
was further submitted that this was necessary because the way in which the risk
is framed must address the precautions said to
be necessary to address it,
relying in that respect upon the judgment of Meagher JA in Garzo at [22]
and the judgment of Payne JA (with whom McColl AP and Leeming JA agreed) in
Fairall at [74].
- It
should, however, be noted that the authorities concern the question of breach.
For example, the third proposition stated by Gummow
J in Dederer at [18]
was that “the assessment of breach depends on the correct identification
of the relevant risk of injury”. In Garzo, Basten JA (at [22]) was
addressing the operation of s 5B of the Civil Liability Act and the
necessity, in that context, for the plaintiff to formulate a claim in a way
which takes into account the precautions which
it is alleged should have been
taken and the identification of the risk or risks of harm which the plaintiff
alleges eventuated and
to which those precautions should have been
directed.
- As
to the identification of risk in the context of considering the existence of a
duty of care, reference may be made to the discussion
of McHugh J in Graham
Barclay Oysters at [81] where his Honour observed:
[81] Ordinarily, the common law does not impose a duty of care on a person to
protect another from the risk of harm unless that person
has created the risk.
And public authorities are in no different position. A public authority has no
duty to take reasonable care
to protect other persons merely because the
legislature has invested it with a power whose exercise could prevent harm to
those persons.
Thus, in most cases, a public authority will not be in breach of
a common law duty by failing to exercise a discretionary power that
is vested in
it for the benefit of the general public. But if the authority has used its
powers to intervene in a field of activity
and increased the risk of harm to
persons, it will ordinarily come under a duty of care. So also, if it knows or
ought to know that
a member of the public relies on it to exercise its power to
protect his or her interests, the common law may impose a duty of care
on the
authority. If the authority comes under a duty of care, the failure of the
authority to exercise a discretionary statutory
power may give rise to a breach
of the common law duty of care. But subject to these exceptions, ordinarily the
common law will not
impose an affirmative duty of care on an authority which
would have the result that a failure to exercise a statutory power constitutes
a
breach of that duty.
[Footnotes omitted].
- As
the defendant put it, the risk in the present matter was a risk of propagation
and, it was contended, the risk that a fire having
stated in the Tip would not
be extinguished before moving to the golf course and then causing loss and
damage up to 11 kilometres
away.
- In
contrast, the plaintiff stated the risk of harm against which the defendant
failed to take precautions was as follows:
a) At a general level “the risk of fire starting in and escaping from its
waste facility at Walla Walla”
b) Expressed more narrowly “that waste at an unmanned landfill with
overgrown unmanaged vegetation within its tipping area,
without an adequate
firebreak, refuse management, fire management (including suppression) plan,
onsite water or fire suppression
equipment, standing in proximity to land with
high fuel loads, might ignite and spread beyond the tip to become a bushfire
which,
in turn, causes personal injury and/or property loss in the geographic
area impacted by the fire”.
- The
risk of harm in the present case is the risk of harm occasioned by a fire
escaping the Tip.
- Having
regard to the rejection of the plaintiff’s case as to causation with
respect to ignition in the Tip, the plaintiff’s
case, in the remainder,
becomes that the defendant was under a duty to the plaintiff to take reasonable
care to avoid the risk of
loss occasioned by the fire spreading beyond the Tip.
The plaintiff’s claim was for loss suffered as a result of the damage
to
property.
The existence and scope of Duty of Care
- The
plaintiff relied upon nine of the salient features identified in Stavar
(at [103(a), (b), (c), (d), (g), (j), (k), (l) and (p)]) albeit adjusted to
the circumstances of the present matter. These were listed
earlier in the
discussion of the plaintiff’s submissions. That approach, as I have noted,
needs to be undertaken, as a matter
of principle, with considerable caution
having regard to what features are actually relevant in this matter to the
existence or scope
of a duty of care. The first, third and fourth questions
raised by McHugh J in Graham Barclay Oysters are relevant in the present
context together with other factors discussed below.
- The
reasonable foreseeability of the kind of injury that was suffered by the
plaintiff is a necessary but not sufficient condition
for the existence of a
legal duty of care: Tame v New South Wales (2002) 211 CLR 317; [2002] HCA
35 (“Tame”) at [12] and Stavar at [158].
Foreseeability of harm is also relevant to determination of both the scope of
the duty and the question of breach. Thus,
Mason J in Wyong Shire Council v
Shirt (1980) 146 CLR 40; [1980] HCA 12 (“Shirt”) at 47
stated that in “deciding whether there has been a breach of a duty of care
the tribunal of fact must first ask
itself whether a reasonable man in the
defendant’s position would have foreseen that his conduct involved a risk
of injury
to the plaintiff or a class of persons including the plaintiff”
(see also Dederer at [18]).
- For
the purposes of determining the existence or otherwise of a duty of care, a risk
of harm is not far-fetched or fanciful if it
is real and therefore reasonably
foreseeable: see Shirt at 48; Tame at [96] (per McHugh J). The
content of the duty concerns the steps that might be available to the defendant
in its capacity to take
steps.
- On
the evidence in these proceedings, the plaintiff has established that there was
a risk of fires (of whatever cause, known or unknown)
in tips and that there was
an eminently foreseeable consequential risk of such fires escaping and causing
damage unless sufficient
reasonably practicable measures were taken to prevent
such escape.
- Additionally,
on the evidence, the defendant should have foreseen and, in fact, did foresee
there was a risk that fires can and often
do start in landfills and, upon such
ignition, may escape.
- As
I will discuss, the defendant had relevant control and management of the Tip
from 2004. There was a fire at the in Tip in 2003
or 2004 and there was also a
fire at another tip operated by the defendant in 2006. The defendant’s
waste management strategies
over time have recognised the risk of fire by the
creation of a firebreak, separating waste disposal areas and burning green
waste.
The defendant implemented fire management strategies at each of its
landfills.
- The
risk of harm cause by a fire escaping from a tip was not far-fetched or fanciful
but real and substantial. The potential harm
caused by fire escaping from a tip
located in the middle of farm land in the height of summer was real and
substantial. The defendant
knew of the risk of fires starting in its landfill
sites and that, in the result, harm may be caused to members of the public.
- I
accept the submission of the plaintiff that the defendant had a knowledge that
its acts or omissions in connection with the operation
of landfills may cause
harm to members of the public and that this was demonstrated by the
defendant’s general knowledge of
the risk, its knowledge of management of
its own waste facilities including the Tip and the history of fires in tips
within the defendant’s
control. That knowledge goes to both the
aforementioned question of foreseeability of the risk of harm and to other
considerations
arising as to the duty of care. By illustration, the greater the
knowledge of the risk and seriousness of the risk, the greater responsibility
on
the defendant to take steps to deal with that risk: Graham Barclay Oysters
at [82].
- These
findings are supported by those persons responsible for the day to day operation
of the Tip: Messrs Michael Davies, Steven Pinnuck
and Bradley Peach.
- Mr
Davies is the former director of the Environment of the Shire, employed by the
defendant in the period from 2004 to 2010. He was
also employed in various other
council roles in Victoria and rural New South Wales during the period from 1970
to 2004, including
his employment with Holbrook Shire Council before its
amalgamation to form the Greater Hume Shire Council in May 2004.
- As
a qualified civil engineer, he was aware of the risks associated with fire in
rural areas, and in his role including at Holbrook
Shire he had a particular
awareness of fire.
- Part
of his role was to supervise the waste facilities within the Shire, and although
he had no particular training in fire management,
his general experience gave
rise to a concern as to, if a fire started in a tip, whether that fire could be
suppressed, and further
once a fire commenced, a concern as to whether it may
escape from the tip. He agreed that a reasonable concern would be a lot of
dry
grass and build-up of grass which was in no way subject to any fuel reduction in
respect of a fire developing and escaping.
- Mr
Davies was familiar with the risk of spontaneous combustion of cut grass, and
the potential for waste deposited at the tip to spontaneously
combust; and that
pushing green waste piles would spread it out, which would also reduce the risk
of ignition by spontaneous combustion.
He conceded that cover of general refuse
at the tip with soil would reduce the risk of a fire started at the Tip from
spreading.
He understood grasses cure toward the end of spring into the early
summer, and become quite flammable.
- As
the defendant’s engineer, the person responsible for management of its
landfills, he accepted in cross-examination that:
- (1) that a
firebreak is particularly effective if the fire has not developed to the running
stage; and
- (2) the concern
with a high level of fuel is that if a fire starts and is a running fire by the
time it gets to a firebreak, the firebreak
is quite ineffective unless it is
very wide.
- Mr
Davies wrote a strategy for the defendant in relation to the management of its
tips (2007 Waste Management Strategy) based upon
a previous report written for
the Culcairn Shire (2004 Waste Management Strategy).
- The
2004 Waste Management Strategy records “ongoing problems with poor site
supervision in recent years have resulted in the
wind blowing litter mixing of
waste strands and inappropriate disposal of waste”.
- The
Culcairn Shire Waste Management Strategy 2004 was prepared for the
defendant’s predecessor, the CSC, and included the recommendation
to
convert current landfill sites to waste transfer stations, including Walla
Walla, and CSC providing a long term option of waste
disposal.
- The
problems identified at the Tip in 2004 included:
- (1) indiscriminate
dumping by local contractors;
- (2) waste
dumped in inappropriate areas and often mixed loads;
- (3) level of
waste separation and attention to detail was very poor; and
- (4) no
facilities on site.
- The
2004 Waste Management Strategy contained no recommendations in relation to
options. Council amalgamations occurred shortly after
(in May 2004). Little
seems to have been done by the defendant in addressing these issues.
- The
2007 Waste Management Strategy (dated November 2006) which, as earlier
mentioned, was prepared by Mr Davies. The Tip is considered
at page 5, including
a photograph of uncovered waste in proximity to vegetation. Significant
environmental constraints recorded include
low lying nature and current land
filling practices, limited life expectancy and uncovered waste in the pit
previously used to dispose
of collected household garbage.
- It
also recorded the Henty tip fire in 2006 and creation of better defined areas
for green waste incorporating encircling gravel access
to act as a firebreak and
pad for green waste. This was not done at the Tip.
- Mr
Davies was familiar with each tip within the Shire, and conceded that there were
different levels of clearance around tips and
different practices for fire
management from tip to tip. At some tips there was both bare ground around each
of the areas of deposit
with good firebreaks in between those areas and
bordering fences.
- Mr
Davies said the general aim of the Waste Management Strategy reports, was to try
to improve the defendant’s waste system,
and “the Walla Walla land
fill was one of the things that I would have preferred to have
closed”.
- Mr
Pinnuck was the General Manager of the defendant. He acknowledged that
councils from 2000 onwards were aware of the risks posed by tips, including a
particular fire risk. Green waste
is kept separate to minimise the potential of
spontaneous combustion in the putrescible (general) waste.
- Mr
Pinnuck acknowledged the risk of spread of fire was greater in the summer months
than in the middle of the year. Fire risks at
the Tip were known to Mr Pinnuck
by virtue of his role as general manager of the CSC prior to the
amalgamation.
- It
was known to the Shire from 1999 that reducing the frequency of the push of
waste at the Tip caused the waste to build up, and
the tip to become
unmanageable.
- There
were two particular areas of the Tip where there was a prospect of fire
emanating: from green waste and from general waste.
- Mr
Peach has been employed by the defendant as Environmental Health and Building
Surveyor since 2006, and from some time in 2008,
waste management become part of
his responsibility.
- Mr
Peach gave evidence that:
- (1) fires
occurring in tips were a particular concern of local government
authorities;
- (2) there are
special risks with tips regarding fire;
- (3) the
incidence of fires in tips is greater than in open broad acres;
- (4) in the
management of the tip one of the risks the Shire ought to try and control was
fires occurring, and if a fire did occur,
prevention of such a fire spreading;
and
- (5) a major
concern in terms of the management of the tip was fire.
- The
letter written by Mr Robert Crawford, Manager Environmental and Community
Services for the CSC (the role in which Mr Davies succeeded
Mr Crawford) to the
Culcairn North West Fire Brigade on 31 August 2000 in relation to fire safety at
waste depots operated by the
CSC also proved the defendant’s knowledge of
the condition of the Tip in 2009 (“the Crawford letter”). The
Crawford
letter referred to the CSC’s plans for “fire safety”
at their waste deposits and determination to create “a
bare earth
firebreak”. There is also discussion of a “control burn off”.
Similarly there was, in evidence, a letter
from the General Manager of the
Council to two residents, Mr and Mrs Singe, regarding the “potential fire
risk” posed
to the residents’ property by the Henty Waste Depot
dated 13 May 2002 (“the Singe letter”).
- As
to the defendant’s actual knowledge of the previous fires, as earlier
mentioned, Mr Davies gave evidence that in 2006, there
was a fire at the Henty
Tip, which the Shire concluded was the result of the burning of green waste
spreading to the general garbage.
- Mr
Jacob had a contract with the defendant to push the waste of the Tip from March
2001. His company was MD & VC Jacob Pty Ltd
trading as MD & VC Jacob
Earthmoving and Trenching. He gave evidence that there was a previous fire at
the Tip in 2003 or 2004.
He attended the Tip at that time.
- It
follows that the defendant knew, or at the very least ought to have known, of an
existing risk of harm arising from the Tip, namely,
the escape of fires
commencing in the Tip to a class of persons having a relationship with the
defendant sufficient to create a duty
of care. I will return to the question of
relationship after considering whether the defendant was in a position of
control and did
have the power to control the situation that brought about the
harm to the plaintiff.
- The
defendant did not deny that the Tip fell within its responsibility and that it
exercised control over its operations. That control
did not derive from
ownership but from the operation of the Crown Lands Act.
- The
defendant raised some additional considerations relevant to the question of
control. One of these is that the defendant was obligated,
either politically or
legally, to provide some waste disposal services to the residents of Walla
Walla. The defendant also submitted
that it did not assume responsibility: it
was required to provide services to the residents of the municipality and to
“take
over” the running of the Tip from its predecessor. It did not
have a choice as, on formation, as to taking possession of the
Tip. Secondly, it
was submitted that, whilst the defendant exercised a supervisory input over
those who dumped material at the Tip,
that could never be perfectly effected.
Thirdly, it was submitted that the prospect of fire could never entirely be
eliminated.
- These
considerations do not, however, materially impact, in my view, upon a conclusion
that the defendant had effective power and
control over the risks associated
with the Tip including the risk of fire.
- The
plaintiff correctly submitted that, having regard to the evidence of Mr Davies
as to the role of the defendant in relation to
the Tip, that the
defendant:
- (1) had control
over who was permitted to go into the Tip;
- (2) exercised
the right to control, inter alia, by giving out keys;
- (3) had the
right to exclude anyone to go onto the Tip without permission;
- (4) obtained
all revenue from the operation of the Tip – there was no private operator;
and
- (5) occupied
and controlled the Tip (an example was the significant control, power and
discretion operated over the earth moving undertaken
by Mr Jacobs by
contract).
- It
is not to the point that the defendant may, had it exercised an effective
control over the Tip, had not entirely eliminated the
risk. It is sufficient to
establish the existence of a duty that the failure of the defendant to take
adequate measures increased
the risk of harm arising from the escape of the
fire.
- Whether
the defendant was obliged to undertake a waste disposal service, for whatever
reason, is again largely beside the point. The
Tip was established by the
defendant’s predecessors and was carried on by the defendant who then
exercised supervision and
control over the Tip including fire control measures.
The measures available to prevent the risk of propagation of fire by its escape
from the Tip (once it had commenced at that location) were matters falling
within the power of the defendant. The actual cause of
the fire in question, on
the evidence in these proceedings, had few implications for the question as to
whether a duty of care arose
with respect to the risk that a fire having started
would escape the Tip and cause damage (putting aside the question at the moment
of relationship and indeterminacy).
- The
defendant also submitted that relevant to the control of the risk of escape was
the condition of the adjoining golf course, which
the defendant had no control
over. Similarly it was submitted that each of the properties between the Tip and
the plaintiff had fuel
which permitted the fire to burn.
- There
was a substantial amount of grass in the golf course adjacent to the Tip, and if
a fire got into that golf course it would have
a lot of fuel to burn by the
summer of 2009. Mr Jacob also gave evidence about the amount of fuel in the golf
course.
- However,
the defendant was also in a unique position in that it had the power to issue
notices to landowners to address fire risk,
requiring fire control measures to
be carried out to its satisfaction, including on land owned by the Department of
Lands adjacent
to the Tip.
- There
can be little doubt that the plaintiff and the members of the class were
vulnerable to harm caused by a bushfire ignited out
of the defendant’s
reserve. The plaintiff correctly submitted that, on the evidence, the plaintiff
and the group members had
no power or ability to exercise any control over the
defendant’s maintenance or operation of its landfills, including the
management
of refuse and vegetation inside landfills. This plainly included the
Tip.
- The
defendant met the issue of vulnerability by submitting that the plaintiff could
have protected herself from harm by effecting
insurance.
- The
ability of the plaintiff to obtain insurance may be relevant to whether the
defendant owes the plaintiff the duty of care in respect
of pure economic loss:
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27. The
plaintiff correctly submitted that there is no authority to support the
proposition that the availability of insurances is a
relevant factor in
considering whether or not a defendant owes a duty of care with respect of
personal injury or property damage:
Perre v Apand at
[130]:
[130] Whether the plaintiff has purchased, or is able to purchase, insurance is,
however, generally not relevant to the issue of
vulnerability. In Esanda
Finance Corporation Ltd v Peat Marwick Hungerfords, I pointed out that
courts often wrongly assume that insurance is readily obtainable and that the
increased cost of an extension
of liability can be spread among customers by
adding the cost of premiums to the costs of services or goods. In Caltex
Stephen J rejected the contention that the existence of insurance or the more
general concept of ‘‘loss spreading’’
were valid
considerations in determining whether a duty of care existed. I agree with his
Honour. They do not assist but rather impede
the relevant inquiry. Loss
spreading is not synonymous with economic efficiency — which will
sometimes be a relevant factor
in determining duty. Australian courts, however,
have not accepted that loss spreading is the guiding rationale for the law of
negligence
or that it should be.
[Footnotes omitted].
- The
defendant’s contentions as to vulnerability, however, extended into
broader questions as to the relevant relationship between
the plaintiff and the
defendant and questions as to whether the claim concerns an indeterminate number
of people. Thus, it was submitted
that the question of vulnerability in fact
exposes a “mere idiosyncrasy” because “anyone who happened to
be within
the path of the fire would be vulnerable to its consequences”.
It was submitted that the plaintiff is no more vulnerable than
the general
public who might come into the sector through which the fire moves depending
upon the weather.
- The
defendant also submitted that there was no relevant relationship between the
plaintiff and the defendant as the relationship was
no different to an
indeterminate number of relationships the defendant had with rate payers,
residents and those merely temporarily
connected to the Tip by the coincidence
of the occurrence of the fire and their location at the time of the fire. A duty
cannot spring
up when a risk comes home – the beneficiary of a duty of
care cannot be identified by reference to the fact of him or her suffering
harm:
the duty must be capable of articulation before the risk arises. It cannot be
known in advance where and when harm will be
suffered and thus no person can be
conclusively eliminated from being owed a duty if there is a chance of a fire
spreading sufficiently
far in their direction.
- The
defendant submitted that the question of proximity must be viewed through the
prism of the novelty of the case having regard to
the distance between the
defendant’s Tip and the plaintiff, the number of properties laying in
between the two including the
division of the two areas by the Walla
Walla-Jindera Road.
- The
plaintiff made a number of submissions in reply in relation to the question of
relationship and indeterminacy as follows:
- (1) This
indicia is a policy consideration when the duty is to be considered as a novel
duty. The spread of fire between landowners
does not fall into that category.
The claim falls within an accepted range of claims that existed within the
common law with respect
to suits between landowners arising from the escape of
fire. The classic case of a novel fire is the bush fires in Canberra where,
when
the fire was commenced to be controlled, the relevant authorities did not know
who would be affected and the actions resulted
in the willingness to allow some
properties to burn because that was how the fire was controlled.
- (2) The
plaintiff contended that there was no indeterminacy as the matter concerned
those persons who may be or were affected by the
fire. In the main, it was
submitted, the duty is owed to persons who are down wind of fire, “but it
may not be down wind when
it finishes”.
- (3) The class
does not become indeterminate merely because of its size. As McHugh J said in
Perre v Apand at [107]:
Liability is indeterminate only when it cannot be
realistically calculated. If both the likely number of claims and the nature of
them can be reasonably calculated, it cannot be said that imposing a duty on the
defendant will render that person liable ‘‘in
an indeterminate
amount for an indeterminate time to an indeterminate
class’’.
- I
agree with the plaintiff that this feature or factor is not relevant in the
current context as the duty claimed, as earlier found,
may not be described as
novel.
- In
any event, the liability is not indeterminate and can be realistically
calculated by reference to the course of the fire (see the
extract from the
judgment of McHugh J in Perre v Apand above).
Conclusion
regarding Duty of Care
- In
my view, the plaintiff has established that the defendant owed a duty to the
plaintiff (and the group members) to take reasonable
care to avoid risk of
personal injury or property loss caused by the escape of fire from the Tip.
- The
defendant had a substantial degree of control over the relevant risks and had an
intimate knowledge that its act or omissions
in connection with the operation of
its landfills may create or increase a risk of harm to members of the public.
The plaintiff established
that there was a risk of fires, of whatever cause,
known or unknown, in the Tip and that there was an eminently foreseeable
consequential
risk of such fires escaping (and causing damage) unless sufficient
reasonable practicable measures were taken to prevent such an
escape. (There is
a finding also available in this matter that the risk of fires escaping was
actually foreseen by the defendant).
BREACH OF DUTY
Submissions of the Parties
The Plaintiff
- Turning
first to a summary of the plaintiff’s submissions with respect to breach
of duty:
- (1) It was
submitted that the defendant breached the duty of care owed to the plaintiff,
namely, to take reasonable care in respect
of the escape of the fire; the risk
of harm that eventuated was due to the defendant’s failure to take
precautions. To that
end, it was submitted, that the cause of the fire is not
relevant, save for it being a fire that is caused by tip operations. The
defendant was running a tip, which entails a duty to guard against the risks
which are associated with the operation of the Tip.
- (2) The risk of
harm was identified as follows:
- (a) At a
general level “the risk of fire starting in and escaping from its waste
facility at Walla Walla”; and
- (b) Expressed
more narrowly “that waste at an unmanned landfill with overgrown unmanaged
vegetation within its tipping area,
without an adequate firebreak, refuse
management, fire management (including suppression) plan, onsite water or fire
suppression
equipment, standing in proximity to land with high fuel loads, might
ignite and spread beyond the tip to become a bushfire which,
in turn, causes
personal injury and/or property loss in the geographic area impacted by the
fire”.
- (3) It was
submitted that consideration of the factors in s 5B(2) favoured a conclusion
that a reasonable person in the defendant’s
position would have taken the
precautions pleaded in para 17 of the further amended statement of claim (see
extracted above at [65]).
- (4) In light of
the prevailing conditions of the day, namely, strong north-westerly winds, high
temperatures, low humidity and the
presence of dry fuel, “it becomes more
likely that waste in a poorly managed landfill [would] permit a fire to start;
and more
likely that any fire so started [would] develop into a bushfire. It is
those conditions that must inform the reasonable response
to the risk of
harm”. In that respect, reliance was placed upon the speed at which the
fire spread from the Tip. It was contended,
had appropriate steps been taking,
in relation to precautions, the fire would have spread slower.
- (5) As to the
issue of spotting, the plaintiff conceded that “[t]he fuel that existed on
the day had the capacity to spot”.
However, it was contended, had
appropriate care been taken, the fuel should not have had the capacity to spot.
In this respect, reliance
was placed on the evidence of “low
intensity” burn, which, in the absence of seed pods and a particular level
of grass
would not provide an intense burn; spotting capacities would have been
further ameliorated with a firebreak outside the perimeter
fence.
- (6) The
plaintiff alleged the defendant failed to undertake or to properly undertake any
of the following precautions (as extrapolated
from the pleadings, which are
extracted in full at [65] of this judgment):
- (a) prepare and
implement a fire management plan;
- (b) create and
maintain an effective firebreak;
- (c) consolidate
deposited waste into appropriate areas;
- (d) remove fuel
to prevent dangerous build ups;
- (e) install and
maintain fire fighting equipment;
- (f) undertake
inspection and monitoring of the facility during periods of extreme bush fire
risk;
- (g) ensure
different kinds of waste are not mixed together;
- (h) cover waste
with cover material on regular basis;
- (i) manage
green waste piles; and
- (j) manage
combustible material to minimise risk of combustion.
- (7) It was
submitted that the evidence supports a conclusion that the defendant had
acknowledged the need for such precautions but
it either did not implement such
precautions or did not implement them properly.
- (8) The burden
on the defendant to implement any of the above listed precautions, it was
contended, was insignificant when the risk
and seriousness of the harm,
described as “catastrophic”, was considered in light of the
defendant’s resources.
This was supported with reference to the evidence
of known measures and measures taken provided by Messrs Davies, Peach and
Pinnuck
(as well as the Crawford and Singe letters).
- (9) It was also
submitted that the social utility of the existence of a tip is not in any way
inhibited by the taking out of those
precautions.
- (10) The spread
of the fire would have been significantly slowed had the defendant taken such
precautions. Further, there was ample
fire fighting resources available to
contain the fire within the Tip.
- (11) As to
specific failures the following submissions were made:
- (a) Mr Peach
had limited training with respect to waste management whilst employed by the
defendant. He received no training in relation
to analysis of fire risk, fire
courses, ignition and spread in relation to landfills. Notwithstanding this, he
was responsible for
waste management services in 2008.
- (b) The
schedule for pushing waste at the Tip was reduced from once a week to once a
fortnight without conducting risk analysis or
consideration of the consequences
of the change (save for a discussion by Mr Jacob with his supervisor Mr
Davies).
- (c) The
firebreak was inadequate having not been graded in the years preceding the
fire.
- (d) Despite
identification of the “mixing of waste streams and inappropriate disposal
of waste” in the 2004 Waste Management
Strategy report, minimal action.
The problem existed at the time of the fire.
- (e) The
defendant did not carry out any fuel reduction at the Tip in the years prior to
the fire.
- (f) The
defendant made the followings admissions:
- (i) No
fire-fighting equipment was kept at the Tip; and
- (ii) No
inspection or monitoring of the Tip was undertaken during period of extreme bush
fire risk.
- (g) The
defendant did not undertake to spray an extensive perimeter around the Tip,
spraying vegetation and all noxious weeds within
the Tip, maintaining a bare
earth firebreak, and conducting a controlled burn off.
- (12) Each of
the experts agreed that the proper management of the Tip required the management
of fuel of any nature at the Tip.
- (13) The Court
should find, it was submitted, had the defendant taken the precautions which a
reasonable person in the circumstances
would have taken, the fire would not have
escaped the Tip and would have been stopped in
time.
The Defendant
- The
defendant relied on the following submissions in relation to the alleged breach
of duty:
- (1) Turning
first to the risk of the fire escaping the Tip, it was submitted there was a
“low level of probability” and,
if it occurred, “it was not
likely to cause damage”. The defendant’s primary contention was that
the prescribed
responses, namely, the aforementioned precautions, would not have
led to a different result. In this respect, reliance was placed
upon the experts
opinion in the Joint Report as “[n]one of the experts [were] prepared to
stake their reputations on whether
if any of the precautions taken had been
taken the fire would not have spread”.
- (2) As to the
alleged failure to take precautions, the following submissions were advanced in
reply:
- (a) The
probability that harm would occur if care was not taken was low: fires were rare
and when they occurred they caused no harm
since they had previously been
contained within the tips. Further, the evidence as to the comparative
difficulty of fire starting
by any one of the postulated methods of ignition
made it distinctly improbable that a fire would start so that the overall
probability
of harm occurring was necessarily reduced by the infrequency of such
fires and their comparative difficulty in starting.
- (b) Additionally,
since fire was a possibility anywhere at any time the relative probability of
harm being suffered by a fire starting
in the Tip was slight: the adjoining golf
course had a fuel load at least equal to the Tip and the properties seen by Mr
Walker on
his way to the Tip after the first had significant fuel loads on
them.
- (c) The likely
seriousness of the harm was low since the likelihood was that a fire starting in
the Tip – which was in typical
condition – would be confined to the
Tip.
- (d) The burden
of taking the precaution is to be assessed by reference to the other tips for
which the defendant is responsible and
other places where similar risks exist.
It was contended that no effort has been made by the plaintiff to demonstrate
what the cost
of the suggested responses was (Harris v Woolworths Ltd
[2010] NSWCA 312 at [33]) and since none of the experts were an expert in the
field of tip management any prescription they advance cannot be taken to be
self-evidently “reasonable in all the circumstances”.
- (e) The
evidence does not establish, noting the prevailing conditions, that had the
precautions been taken that it would have slowed
down the fire or prevented the
spread beyond the Tip.
- (3) Reliance
was also placed upon the defence under s 5C of the Civil Liability Act
and Cekan v Haines (1990) 21 NSWLR 296 (T562). The defendant
submitted:
[Section] 5C of the Civil Liability Act requires
the Court to take into account all of the other occasions on which the defendant
would be required to act in a similar way
and the burden of doing so if that
were the case. That is, we say, the principle basis, apart from logical
impracticality, why we
can't have a man at the - a man or a woman at the tip -
so when the experts propound fire fighting equipment permanently available
at
the tip, we say, "Well, unless there's somebody there, you're going to have the
problem that Mr Grosse doesn't turn up for 15
minutes and by that stage, it's
too late."
(4) As to the plaintiff’s submission that the defendant could have invoked
one or more of seven responses, the defendant contended
that each submission was
put forward with the benefit of hindsight. Further submissions, as to specific
precautions, included reference
to the following:
- (a) Separating
of waste;
- (b) Creating
and maintaining fuel free zones;
- (c) Covering
waste with dirt or inert material;
- (d) Removal of
grasses;
- (e) Having fire
fighting equipment present at the site (not contested);
- (f) Inspection
at times of high fire danger; and
- (g) Discouraging
intruders.
(5) As to the plaintiff’s submissions with respect to resources available
to the defendant, it was submitted the relevant principles
(discussed above)
require that the Court recognise the defendant had responsibility for 10 tips
– each with their own issues.
Accordingly, in assessing any submission
involving the expenditure of money or the application of other resources it
would be necessary
to approach the reasonableness of the suggested action on the
basis of it being repeated across all of the tips.
(6) Any step suggested by the plaintiff as being reasonable cannot be evaluated
solely by reference to its implementation at the
Tip: its implementation at each
other tips must also be considered.
(7) As the evidence disclosed there are ratios and requirements under the
auditing standards to establish all councils on a sound
financial footing. The
challenge in cross examination to the effect that depreciation is a non-cash
item seemed to be driving at
a submission that if you ignored depreciation
because it was a non-cash item there would suddenly be a lot more money to
spend. That
approach entirely ignores two things:
- (a) an
accounting policy decision to depreciate an asset within the accounts of a
council cannot be matter which is open to review
in an action for negligence in
the present context; and
- (b) the
depreciation is intended to reserve funds for the replacement of the asset when
it requires replacement: not to make that
provision would soon find the council
without the reserves necessary to replacing assets as they reached the end of
their working
life. It is not suggested that the accounting standards under
which the council report in some way do other than take this
approach.
(8) The plaintiff also sought to circumvent the requirement for budget changes
to be approved by elected councillors: a matter requiring
council approval is
not justiciable, whatever the voting patterns or history of the councillors
concerned. Further, such a determination
must be the epitome of an issue
concerning the general allocation of resources.
Relevant
Legislation on Breach
- The
question of breach is governed by s 5B of the Civil Liability Act. The
relevant sections of that Act are set out in Div 2 and extracted
below:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
(a) the risk was foreseeable (that is, it is a risk of
which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the
following (amongst other
relevant things):
(a) the probability that the harm would occur if care
were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of
harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of
harm includes the burden of taking precautions to avoid similar risks of harm
for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a
different way does not of itself give rise to or
affect liability for the way in
which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken
earlier) have avoided a risk of harm does not of itself
give rise to or affect
liability in respect of the risk and does not of itself constitute an admission
of liability in connection
with the risk.
The Application of ss 5B and 5C
- Section
5B of the Civil Liability Act governs the assessment of breach.
- As
earlier discussed, the first step required by s 5B is to identify the risk of
harm with respect to which there was a failure to take precautions. The
plaintiff’s statement of
the risk of harm was that set out earlier in the
summary of the plaintiff’s submissions. The question of risk was
identified
by the defendant in relation to the question of duty. It may be
repeated here. The defendant identifies two risks: the first arises
from the
risk of ignition and the second from the risk of propagation. The first may be
put aside having regard to the determination
of causation in that respect. The
second risk is described as “the risk that a fire having started in the
tip it would not
be extinguished before moving to the golf course and then
causing loss and damage up to 11 kilometres away”.
- As
earlier mentioned, in my view, the relevant risk is a risk of fire escaping the
Tip, when a fire had ignited in the Tip. The risk
may also be identified as the
risk that a fire would not be extinguished before moving to the golf course
after ignition in the Tip.
- Section
5B prescribes that a person is not negligent in failing to take precautions
against a risk of harm unless the three conditions in subs
(1) are satisfied. I
have earlier dealt with the question of foreseeability.
- The
second condition is that “the risk was not insignificant”. This is a
more demanding test than the test for reasonable
foreseeability, namely, that
the risk not be far-fetched and fanciful, but “not by very much”:
Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA (with whom Beazley JA, as
she was then, and Tobias JA agreed) at [44].
- In
Benic v New South Wales [2010] NSWSC 1039, Garling J summarised the
appropriate approach to interpreting the phrase “not insignificant”
(at [101]):
(a) The assessment of the risk of harm is one made in prospect and not
retrospect. Hindsight has no part to play;
(b) The phrase is of a higher order than the common law test, and this was
intended to limit liability being imposed too easily;
(c) The phrase “not insignificant” is intended to refer to the
probability of the occurrence of the risk;
(d) In the realm of tort law, the probability of an occurrence is both a
quantitative measurement, which may, but does not necessarily
reflect a
statistical and numerical assessment, and also an evaluative measurement. The
statutory phrase is a protean one which depends
upon the context of facts,
matters and circumstances for its meaning;
(e) Whether a risk is “not insignificant” must be judged from the
defendant’s perspective and must be judged on
a broader base than a mere
reductionist mathematical formula.
- The
plaintiff correctly submitted that the test required by s 5B(1)(b) requires the
consideration of the combination of the probability and consequences of the
risk: see South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA
8 at [89]. Thus, in circumstances where the consequence of the failure to
take precautions against risk are serious and substantial but the
obviousness or
probability of the risk emerging in such an event is low, the risk is
nonetheless “not insignificant”
for the purposes of s 5B(1)(b).
- I
will not repeat the earlier analysis of the issue of reasonable foreseeability
and the knowledge held by the defendant. It is sufficient
to note that the
defendant knew that the failure to take precautions against the risk of a fire
escaping from the Tip had significant
consequences for person and property. The
fact that, as contended by the defendant that previous fires in tips had not
caused harm
beyond their boundary, thereby indicating a reduced likelihood of
occurrence would not properly result in a conclusion that the risk
of harm from
the failing to take precautions was not insignificant.
- The
third criteria in s 5B(1) is found in subs (c), namely, the plaintiff must show
that a reasonable person in the position of the defendant would have taken
“those precautions”. The test for satisfaction of that requirement
is identified in subs (2).
- The
plaintiff must show that a reasonable person in a position of the defendant
would have taken “those” precautions:
s 5B(1)(c). The reference to
“those” precautions is a reference to the opening words of s 5B(1),
namely “failing to take precautions against a risk of harm”.
- The
plaintiff refers to 10 precautions which she submitted the defendant failed to
take against that risk of harm. Those precautions
are discussed in significantly
greater detail below but it is important to recognise, at this juncture, that
the plaintiff correctly
submitted that, save for two of the nominated
precautions, the defendant had said itself that such precautions were required
to manage
the risk of fire igniting at or escaping from the Tip. In any event,
as I will discuss here and in the following section entitled
“Precautions”, the evidence reveals that a reasonable person in the
defendant’s position would have taken those
precautions.
- The
10 precautions the plaintiff alleged the defendant should have taken, as
previously mentioned, in summary, were to:
- (a) prepare and
implement a fire management plan;
- (b) create and
maintain an effective firebreak;
- (c) consolidate
deposited waste into appropriate areas;
- (d) remove fuel
to prevent dangerous build ups;
- (e) install and
maintain fire fighting equipment;
- (f) undertake
inspection and monitoring of the facility during periods of extreme bush fire
risk;
- (g) ensure
different kinds of waste are not mixed together;
- (h) cover waste
with cover material on regular basis;
- (i) manage
green waste piles; and
- (j) manage
combustible material to minimise risk of combustion.
- The
plaintiff also accepted that the defendant did not identify the need to
undertake the precautions identified in (e) and (f) above.
On the evidence, the
remainder of the precautions are steps which the defendant did recognise as
being appropriate steps to take
to against the risk of harm by fire. I will also
find that those steps are reasonable to be taken by a person in the position of
the defendant against the risk of harm from, inter alia, the escape of a
fire from a tip. (I also consider (f) to be a reasonable precaution but will
find no breach of duty demonstrated).
- It
should be noted that the plaintiff’s pleadings regarding the standard of
care required vis-à-vis precautions against risk of harm arising
from the spread of fire was restricted to (a), (b), (c), (d), (e) and (f). I
will nonetheless
touch on the remainder.
- The
reasons for that conclusion will be set out in the discussion of the respective
precautions below. The plaintiff’s case
is that the defendant, having
identified the need to take certain precautions, either failed to do so or did
so in a manner which
was insufficient per se or by a decreasing
commitment to the taking of the precaution over time. Again, for reasons I will
discuss, there is merit in these
submissions.
- The
tests for satisfaction of the requirements of s 5B(1)(c) are set out in s 5B(2)
of the Civil Liability Act. The non-exhaustive list of considerations
is:
- (1) the
probability that the harm would occur if care were not taken;
- (2) the likely
seriousness of the harm;
- (3) the burden
of taking precautions to avoid the risk of harm; and
- (4) the social
utility of the activity that creates the risk of harm.
- I
shall address each such consideration seriatim although, in adopting that
approach, it is important to bear in mind that the conclusion reached must
represent a synthesis of the
factors identified in s 5B(2) together with any
other relevant considerations.
- The
defendant submitted that the probability that harm would occur if care was not
taken was low because:
- (1) Fires were
rare and when they occurred they caused no harm because historically they had
been contained within tips.
- (2) The
evidence showed there was a comparative difficulty of fires starting by any one
of the postulated methods of ignition.
- (3) It was
further submitted that since fire was a possibility anywhere at any time, the
relative probability of harm being suffered
by a fire starting in the Tip was
slight. The golf course had a fuel load at least equal to the Tip as did the
properties observed
by Mr Walker on his way to the Tip after the fire.
- (4) The
defendant further submitted that the likely seriousness of harm was low since
the likelihood was that a fire starting in the
Tip would be confined to the
Tip.
- It
is not correct to submit that the probability of harm that would occur if care
was not taken was low because fires were rare. The
evidence of a previous fire
at the Tip would indicate that the probability of occurrence was, historically
speaking, that a fire
would occur within a five year period. There was also the
evidence of a more recent fire at the Henty Tip.
- Further,
whilst it has been found that the cause of the ignition of the fire could not be
established on the balance of probabilities
on the evidence, it does not follow
that there is evidence as to the comparative difficulty of a fire starting by
any one of the
postulated methods of ignition.
- There
was no history of the escape of fire, once a fire ignited. On that basis, the
probability of fire escaping, once a fire had
commenced in a tip, was, on the
evidence, low. However, I accept the submission of the plaintiff that the
evidence establishes that,
without the exercise of care across landfills and
over time, the probability increases. This is consistent with the expert
evidence
which will be discussed later in this judgment. There are further
factors which affect probability which operated on the occurrence
of the fire.
Those factors include: weather conditions, temperatures, humidity and the
existence of dry fuel.
- The
defendant submitted that given the fire was a possibility at any time the
relative probability of harm by a fire starting in the
Tip was slight. Reference
was made, in this respect, to the equivalent fuel load in the adjoining golf
course to that at the Tip.
However, the relevant question is whether a
reasonable person would have taken precautions against the risk of harm from the
escape
of fire, having regard to the probability that that harm would occur if
care was not taken.
- In
this sense, the existence of a build-up of fuel overtime which had the potential
to ignite increased the probability of harm of
ignition and that, if ignited,
the fire would escape outside the borders of the Tip. It is those considerations
that must inform
the reasonable response to the risk of harm. In my view, they
would have caused a reasonable person, on the assessment of probability
of harm
arising at the Tip, to have taken precautions. It is beside the point that the
probability of harm that existed in the golf
course was the same.
- It
may also be noted that the defendant’s contention proceeds on an
assumption that the relative conditions posing this risk
of harm (by ignition)
were the same in the golf course and the Tip. There was no evidence of the state
of the golf course other than
the amount of fuel from grass. It is obvious that
a tip would manifest different features and therefore a different risk profile
than a golf course.
- It
should also be borne in mind, in this respect, that the senior officers of the
defendant who were called to give evidence agreed
that the defendant exercised
the power conferred under s 124 of the LG Act to give notices to land owners to
clear properties of
fire risks. This knowledge meant that the defendant
regularly considered the risk in consequence of fire in poorly maintained
properties.
- Whether
the precautions, in this case if taken, would have adverted the spread of the
fire is a different matter. That will involve
a consideration of the question of
causation with respect to the escape of fire to which I shall return.
- I
do not accept the submissions of the defendant as to the likely seriousness of
the harm to be low. In the event that the risk of
escape materialises because of
the absence of appropriate precautions, the potential harm is very substantial
if not catastrophic.
- The
third consideration arising under s 5B(2) is the burden of taking
precaution.
- The
provisions of s 42 of the Civil Liability Act is, as the defendant
submitted, a freestanding constraint on the liability of public authorities as
addressed separately below. However,
s 5B(2)(c) requires the
“burden” of taking a precaution to be evaluated in framing the
reasonable response.
- The
provisions of s 5C(a), consistently with common law authority such as Cekan v
Haines and Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty
Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 (“Refrigerated
Roadways”) (at [395]), requires wider consideration of the state of
affairs of tips in the defendant’s control.
- Section
5C(a) requires consideration of the burden of taking precautions addressing
similar risks for which the defendant may be responsible.
- The
defendant submitted that no effort had been made by the plaintiff to demonstrate
what the cost of suggested responses may be:
Harris v Woolworths Ltd
[2010] NSWCA 312 at [33]. Further it was submitted that none of the experts
called was an expert in the field of tip management so that any prescription
they
advanced could not be taken as self-evidently “reasonable in all the
circumstances”.
- It
is correct that there is a relative paucity of the evidence on the cost of
taking precautions although Mr Davies gave evidence
that a relatively small
investment would need to be undertaken to affect the precautions.
- However,
there is some substance in the plaintiff’s submissions that none of the
witnesses called in the proceedings who were
officers of the defendant indicated
that the precautions were outside the capacity of the defendant, whether that
required financial
planning or the shifting of resources or otherwise.
- The
plaintiff submitted that the evidence given by the defendant’s employees
established that the burden of implementing precautions
was insignificant when
the risk and seriousness of the harm was considered in the light of the
defendant’s resources. The defendant
referred to no burden being expressed
in relation to undertaking the push-up weekly. When Mr Davies was shown evidence
of the fire
prevention measures the former Council had committed to implement,
he confirmed there was nothing to prevent those types of measures
being carried
out at the Tip. Mr Davies also gave evidence that it would not be a substantial
cost to put a bulldozer in the area
south of the bund to flatten it out to
provide a larger flat area.
- Mr
Pinnuck admitted that improvement works of around $10,000 at the Tip, which
might have been carried out, could have been dealt
with in the existing budget
allocation. There was also evidence that the Rural Fire Service would have been
likely to assist in controlled
burns of the fuel in the southern and eastern end
of the tip.
- The
defendant submitted that, by reason of the broad range of its responsibilities
and the number of tips controlled by the defendant,
any suggested response to
the risk needed to be evaluated by reference to the number of tips run by the
defendant.
- It
was submitted that any additional cost for one tip must be allocated to each tip
and there was no reason, for example, why the
presence of a person to manage the
tips could be restricted to daylight hours as fires may start in the night. It
was contended fires
do not occur only on days of elevated danger. The Tip was
not the only public land managed by the defendant.
- The
defendant also submitted that the finding of a duty, let alone its content,
would establish a precedent whereby all councils will
owe a duty, which is at
large, having an absorbent demand on resources to guard against a risk which
infrequently comes home and
does not eliminate the risk.
- Pitched
at that level of generality, I do not consider the submissions of the defendant
may be accepted. I do not consider the general
activities of the defendant
across the breadth of its services and functions are applicable to the present
consideration vis-à-vis a burden of the precautions. The words
“similar risks of harm” in s 5C(a) direct attention to the risks
associated with various activities or functions of the defendant and not simply
those activities having
similar geographical or physical characteristics; except
to the extent those characteristics inform the question of risks. There
is no
evidence here to suggest, for example, parks represent a similar risk to tips
and evidence may suggest the contrary is the
case. The 10 tips operated by the
defendant are, however, relevant as by their nature they have similar, although
not identical,
risks.
- Overall,
the evidence would suggest that, by taking into account the 10 tips, the burden
would increase. The evidence does not suggest,
however, that when that factor is
taken into account, that the precautions pleaded by the plaintiff created a
burden that was unusual
or unduly onerous (in terms of the defendant’s
budget as accepted by Messrs Davies and Pinnuck). There is a significant
exception.
- In
the Joint Report, the experts posited that the engagement of a person at the Tip
to use fire fighting equipment if a fire broke
out would have prevented the
spread of the fire. As the defendant pointed out, the fact that a fire may break
out at any time, the
person or persons would need to be engaged 24 hours per
day, 7 days per week. That approach would need to be replicated across 10
tips.
In my view, it could not be concluded that such a measure would be a step that a
reasonable person in the defendant’s
position would have taken, either
having regard to cost or practicality.
- A
similar conclusion may be reached with respect to the fire fighting equipment.
The evidence does not sustain that the provision
of such equipment in each tip
operated by the defendant was a step a reasonable person in the
defendant’s position would have
taken. There was no evidence as to cost.
It may not be presumed that the cost of such equipment is inexpensive. If it is
not reasonable
to have a person stationed at each tip then it cannot be
reasonable to install fire fighting equipment intended to be used by that
person. It may also be noted that all persons attending upon the fire did so
equipped with fire fighting equipment which they either
supplied themselves or
otherwise had been supplied to them.
- There
are two further broad considerations in this respect which lead to a discussion
of social utility. As I will discuss, whatever
the social utility of rubbish
tips, they constitute, on the evidence, an unnatural and dangerous use of land
and it is thereby incumbent
on the operators to take the necessary precautions
in relation to each of them.
- Putting
aside momentarily the particular defence arising under s 42 of the Civil
Liability Act (to which I will return after considering social utility),
insufficient resources can rarely in these circumstances constitute a defence
to
breach of duty. As Lord Macmillan said in Glasgow Corporation v Muir
[1943] UKHL 2; [1943] AC 448, “[t]hose who engage in operations inherently dangerous
must take precautions which are not required of person engaged in the
ordinary
routine of daily life” (at 456). Here the defendant was responsible for a
finite number of tips for which there were
generally known and dangerous risks.
The precautions required were known.
- Further,
the plaintiff submitted, in this respect, that the cost, such as it may be, is
to be weighed against the probability of the
risk of harm occurring and the
seriousness of the harm in the event that it occurs. I agree.
- Finally
there is the question of social utility.
- At
the time of the fire, the defendant operated 10 waste facilities. There was
plainly a significant social utility in maintaining
those waste facilities.
However, none of the precautions proposed by the plaintiff adversely affected
the operation of the Tip such
that it removed its social utility: see Price v
State of New South Wales [2011] NSWCA 341 at [45].
- A
further consideration is that the social utility of the Tip needs to be weighed
against the risks associated with its operation
such that the increased risks of
fire would commensurately reduce the social utility of the Tip. I agree with the
submission of the
plaintiff that there is no social utility in providing a
service such as a tip which increased the risk of fire to those same residents
who used the Tip because it was not properly maintained.
- The
defendant submitted that the case concerned the operating conditions of the
landfill tip in 2009 that had been used in that way
since 1913 under the
auspices of local government authorities to service the needs of a small local
population which lacked roadside
garbage collection. The condition of the Tip
had come about over many decades. It was submitted that it was not possible to
undo
decisions of the past or to wish away the limitations in the site. The Tip
was a “necessary evil” and, it was submitted,
“the idea, which
[was] implicit in the plaintiff’s approach, that it was open to the
[defendant] to undo a century’s
worth of dumping is in and of itself
unreasonable, if not ludicrous”.
- With
respect to the contention, it must be described as specious. The effect of the
contention, when properly understood, is that
the defendant could not take
adequate measures because its Tip had been in an increasingly dangerous
condition since 1913. If that
was the fact, then it could only serve to prove
the plaintiff’s case that the fire was foreseeable as to the escape of the
fire and that no sufficient precautions had been taken.
Statutory
Defence: s 42
- The
defendant raised a defence under s 42 of the Civil Liability Act.
- The
effect of s 42(a) in the present case is that what the defendant can be required
by the law of negligence to do is limited by the financial and other
resources
that are reasonably available to the defendant for carrying out the care,
control and management of tips that are under
its care, control and management:
Refrigerated Roadways at [395].
- Section
42(b) prohibits a challenge to the general allocation by the defendant to the
care, control and management of tips: Refrigerated Roadways at [396]. As
Campbell JA pointed out in Refrigerated Roadways, s 42(a) is concerned
with the resources reasonably available to the defendant, while s 42(b) is
concerned with the allocation of resources by the defendant. Section 42(b)
“starts with the position that certain resources are reasonably available
to the authority, and considers the allocation that
is made by the authority to
those resources” (at [397]).
- Thus,
although the general allocation of resources by the defendant is not open to
challenge, the plaintiff is able to address the
specific allocation of resources
available to the defendant: Holroyd City Council v Zaiter (2014) 119
LGERA 319; [2014] NSWCA 109 at [97]- [100] (per Hoeben JA, with whom Emmett and
Gleeson JJA agreed). (It should be observed, however, that if a particular
allocation is not
excluded by s 42(b) it would still have to be tested by
application of the common law principles plus the Civil Liability Act
other than s 42(b)).
- I
agree with the submission by the defendant that, from these principles, the
mandated approach is to recognise that the defendant
had responsibility for 10
tips. Each of them had issues. It is necessary to approach the reasonableness of
a suggested action or
precaution on the basis of it being repeated across all of
the tips.
- For
reasons which will follow, I do not consider that s 42 affects a conclusion
about breach arrived at by common law principles or principles by reference to
the Civil Liability Act, other than s 42(b) above. In short, I do not
consider the defence is made out.
- There
was a specific resource allocation by the defendant for waste management. The
defendant’s waste management service was
part of its general operations
and funding which fell within the “General Fund”, specifically the
function of “Housing
and Community Amenities”. All functions within
the General Fund ran at a loss, other than Economic Affairs which included
income
from tourism and caravan parks. However, when rates, annual charges and
grants and contributions for operating purposes were taken
into account, the
General Fund had a net operating result for the year ending 30 June 2009 of
$1.324 million.
- There
was a waste management reserve of $69,000 available as at 1 July 2008. The
defendant approved expenditure of $25,000 from that
reserve in that financial
year. However only $18,000 was expended in that year leaving a reserved of
$51,000. That $51,000 was expended
in the year ending 30 June 2010. Mr Pinnuck
gave evidence that the 2010 financial statement indicated the expenditure of the
aforementioned
sum was allocated to some projects but he did not identify which
project, capital or otherwise, the monies were used for in that
respect. The
budgets for the year ending 30 June 2010 were not in evidence before the Court.
Nor was there evidence that the monies
were used to meet the cost associated
with the fire.
- Whilst
Mr Davies identified the tips other than the Tip were in greater need of
resources, funding for waste management in the yearly
budgets was not allocated
to particular landfills. That was a matter for the manager of that function to
determine each year. In
the year 30 June 2008, the defendant spent $23,800 on
the Culcairn Waste Facility. As earlier mentioned, Mr Pinnuck accepted that
improvement works of around $10,000 might have been carried out at the Tip, as a
result of the Rural Fire Service letter of 30 October
2009, and could have been
dealt with in the existing budget allocation.
- Thus,
the case does not concern that identified in Refrigerated Roadways as to
whether the defendant should have spent money on some other piece of
infrastructure because it is perceived as being of more
need but whether the
defendant had funds sufficient to meet precautions within its waste budget. I do
not accept the submission of
the defendant that it had proved that an amount was
allocated to waste and it was exhausted in the year of the fire for the reasons
given above.
- The
defendant contended that the Court should, consistently with Refrigerated
Roadways (at [40]), come to the view that there can be no issue as to
whether the allocation of the funds was of a “principled and
careful”
prioritisation process. This must be a reference to the taking of
measures to reduce the risk of harm by precautions. However, as
the plaintiff
submitted each year money was allocated to slashing the driveway of the Tip for
aesthetic reasons which could have
been allocated to spraying or grading. The
defendant had earthmoving equipment that could have permitted it to carry out
grading.
- Nor
do I consider the submissions of the plaintiff sought to circumvent the
requirement for budget changes to be approved by elected
councillors given its
submissions were not directed to the general allocation but to the specific
allocation for waste management
(although I would note in this respect the
plaintiff’s submission that the defendant was in a strong financial
position having
regard to its ratio of current assets to current liabilities
when compared with the average ratio of NSW Councils would seem to be
beside the
point).
Preliminary observations regarding the operation of s
5B
- The
synthesis of these considerations in the present case, without detracting from
the foregoing analysis, is that the occurrence
of fires in tips if precautions
are not taken are, on the evidence, by no means rare. The possibility of fires
escaping if precautions
are not taken increases over time and is affected by
prevailing conditions such as in the present case, a strong north westerly wind,
high temperatures, low humidity and dry fuel. Such is the magnitude of the loss
likely if fire escapes in the dry terrain in which
the Tip was located at the
relevant time must mean that the taking of relevant precautions is reasonable.
The precautions proposed
are not unduly onerous or unusual.
- I
accept the submission of the plaintiff that the aforementioned consideration of
the factors under s 5B(2) favours a conclusion that a reasonable person in the
defendant’s position would have taken most of the 10 precautions listed
by
the plaintiff. That conclusion is buttressed and refined by the conclusions
below under the following heading.
Precautions
- It
is necessary then to consider the questions of whether, in addition to the above
considerations, a reasonable person would have
taken the precautions pleaded by
the plaintiff and whether any sufficient reasonably practicable steps of the
kind were taken by
the defendant where reasonably
required.
Further considerations regarding s 5B: Expert opinion
as to whether the precautions were reasonable fire precaution measures
- The
experts were asked to consider what reasonable fire precaution measures
could have been employed and what should have been employed at a
solid waste landfill comparable to the Tip at questions 6 and 7 of the Joint
Report. Those questions and their
answers are extracted in full
below:
Q6. Do you agree on what reasonable fire precaution measures could have been
employed at a solid waste landfill in New South Wales
of a size and location
comparable to the Tip at the relevant time? If you do not agree what is the
basis for your disagreement?
A6.
Ms O’Toole, Mr Crowe and Mr Nystrom agreed that reasonable fire
precautions that could have been taken were:
a. Separating and isolating deposits of different types
of rubbish that constituted fuel loads within the tip.
b. Creating and maintaining fuel free zones or areas including access roads
between such deposits.
c. Covering waste with dirt or inert material.
d. Removal of grass, foliage and trees within the tip.
e. Having fire fighting equipment permanently available at the tip.
f. Instituting a system for inspection of the tip at times of high fire
danger.
g. Erecting a perimeter fence of some sort to act as a discouragement to
intruders
Dr Green disagree only with d. In his opinion the grass etc. need only be kept
at a manageable minimum condition.
The experts acknowledged that whether the tip was adequately managed or managed
reasonably at the relevant time is a matter for evidence
and judicial decision.
Their above opinion as to reasonable precautions is based on their expert
knowledge and experience and does
not imply any legal opinion.
Q7. Do you agree on what reasonable fire precaution measures should have been
employed at a solid waste landfill in New South Wales
of a size and location
comparable to the Tip at the relevant time? If you do not agree as to which of
the measures should have been
employed:
a) On which measures do you disagree?
b) Why?
A7.
All four experts do not think it is within their expertise or role to say what
should have been done as distinct from what might
have been done. They regard
what should have been done as a matter for judicial decision and have dealt with
the possible measures
in answer to question 6 to which they
refer.
- Thus,
at the time of the Joint Report the experts gave the opinion (save for Dr Green)
that the following precautions or steps, with
respect to the duty of care and
breach, represented reasonable fire precautions (save for Dr Green in one
instance):
- (1) Separating
and isolating deposits of different types of rubbish that constituted fuel loads
within the tip.
- (2) Creating
and maintaining fuel free zones or areas including access roads between such
deposits.
- (3) Covering
waste with dirt or inert material.
- (4) Having fire
fighting equipment permanently available at the tip.
- (5) Instituting
a system for inspection of the tip at times of high fire danger.
- (6) Erecting a
perimeter fence of some sort to act as a discouragement to
intruders
- In
doing so, they expressly eschewed giving any opinion as to:
- (1) whether the
Tip was adequately or reasonably managed at the relevant time; and
- (2) what
“should” have been done as opposed to what “might” have
been done.
- During
the course of concurrent evidence, the experts expanded upon the opinions
conveyed within the Joint Report, in summary form,
as follows:
- (1) Dr Green
opined: “Flame length and fuel load is going to be important under the
conditions for fire spread between different
areas and in a tip like that then
they do vary and you do want to keep the loads down as much as possible and have
good separation”.
He also agreed that grass is a fuel and that it can have
greater fuel value if it is not cut.
- (2) Mr Nystrom
identified grass and dry vegetation as a problem as it created “fuel
within the tip” which can be uplifted
and cause their own fire. He opined
that a fuel free distance of “a couple hundred metres” might have
prevented a fire
within the general waste area spreading outside the Tip. He
described this measure of removing combustible matters as “buying
time, so
that when people are aware from the smoke column that there is a fire, there is
time, then, for the emergency service to
arrive and try to put out the
fire”.
- (3) Mr Crowe
described the fuel at the tip as “ideal” for the propagation and
spread of fire. He opined: “It's fully
cured, if there's been accumulation
of thatch from previous year's growth over that period then the quantity of fuel
is a lot more
than is originally perceived because there's a lot at ground level
that is dead fuel and therefore available to burn and, and very
volatile,
readily ignite with the smallest of ignition”.
- (4) Dr Green
accepted “with the reduction of fuel, grass fuel, whether it be by a way
of slashing, controlled burning or chemical
reduction, the rate and intensity of
spread will lessen”. He also accepted that there would be little prospect
of spotting
if the grass was slashed, with no heads and was 6 inches long.
- (5) Mr Nystrom
opined, in light of having seen the Tip itself, that “the thing that is
described as being a firebreak is in
my opinion not a firebreak, it’s
really just a track and the reason I say it’s just a track is because it
doesn’t
provide a separation between areas that can burn”. He also
referred to the trees around the firebreak, which would result in
leaves and
sticks on the land, “they’ll add to the risk of a fire passing
straight through it regardless of the size
of the fire”.
- (6) Dr Green
accepted that, in principle, a fire that is running in short grass is a fire
that a firebreak is more effective (albeit
it may not be totally effective)
against than in long grass. Mr Nystrom expressed a similar opinion, noting that
“short grass
is going to burn substantially more slowly than is tall
grass”.
- (7) Ms
O’Toole opined that the Tip was not adequately managed and that that led
to a risk of fire. In this respect she pointed
to the long grass and lack of
access. She identified a need for landscaping and commented that the
inaccessible parts surrounding
the green waste area would contribute to
difficulties of access in the event a fire occurred.
- (8) Ms
O’Toole accepted the defendant made an effort to separate the waste.
However, in light of the photographs of the Tip,
which reveal an open face,
evidence of waste not being compacted “and more importantly it’s not
covered” –
she opined that by not covering that waste on a daily
basis that it led to a risk of fire.
- (9) Ms
O’Toole also opined, with respect to the need to cover waste, that a
“progressive fix” was required. She
also opined that the Tip was
“too large” and that the defendant should have “been operating
a smaller face”.
She suggested that the defendant “had time over the
past couple of years to gradually rehabilitate and, and make the face smaller
and more manageable so that the amount of dirt you need to come in to cover
wouldn't be so excessive”. (It should be noted
that Ms O’Toole did
not have experience in managing a tip; her background is primarily based in
design and addressing risks
of fire at tips).
- (10) Dr Green
identified that a function of pushing up putrescible waste was “a fire
control” because it is a means of
preventing the conditions required for
spontaneous combustion arising (as discussed earlier).
- (11) His
overall view was as follows:
The reason I disagree in part is not necessarily from
what the other experts have said, it’s actually to do with the actual
management and what processes were going on to actually ensure that the tip or
the risk of fire was being reduced. You’ve got
to couple that with the
actual fire loads that were there and the mechanisms by which you could actually
get fire starting and progressing.
Now, it’s difficult to see, we’ve
discussed in great detail I think most of the views on, on how ignition actually
occurs.
It’s difficult to see given that there was continual processing of
the general waste, the separation of different types of
waste, and the
interspersion of non-combustible waste between some of those areas. It means
that they were attempting to actually
manage that and reduce the risk of fire
and that’s basically the, the basis for my view.
- Having
regard to my earlier discussion of factors requiring consideration under s
5B(1), the discussion of the evidence under this heading and some supplementary
observations below, I find that a reasonable person in
the position of the
defendant would have taken the precautions (a), (b), (c) and (d) to avoid the
spread of fire, in the event a
fire ignited at the Tip.
Did the
defendant take the precautions against the risk of harm?
- I
now turn to the evidence with respect to each of the precautions pleaded and as
considered within the parties’ respective
submissions.
Precautions: Spread of Fire
Prepare and implement a fire management plan
- There
was no evidence of a formal fire management plan prepared by the defendant.
However, as I have found, the defendant knew of
the dangers of fire ignition and
spread at the Tip. The defendant recognised measures to be taken in respect of
the defendant’s
“plans for fire safety at Council Waster
Depots” in the Crawford letter. Further, additional available measures,
albeit
with respect to the Henty tip, were also identified in the Singe letter.
The defendant was aware that fire safety required the implementation
of certain
measures.
- Returning
to the Crawford letter, Mr Davies conceded that the defendant failed to carry
out any of the measures identified, namely:
- (a) spraying an
extensive perimeter around the Tip;
- (b) spraying
vegetation and all noxious weeds within the Tip;
- (c) maintaining
a bare earth firebreak; and
- (d) conducting
a controlled burn off.
- Mr
Peach also confirmed none of these measures were carried out by the defendant at
the Tip, notwithstanding the letter acknowledged
“plans” had been
made to undertake such measures at the time of the letter.
- Mr
Davies confirmed that he relied on Rural Fire Service to tell him what was
needed.
- Further,
the defendant did not have any person in its employment with fire expertise
sufficient to prepare and implement such a fire
management plan. Messrs Davies
and Peach, whom had managerial responsibilities, did not have sufficient
expertise to identify and
manage the risks of fire within the Tip. The defendant
did not provide training to those employees that would provide them with the
skills necessary to implement a fire management plan.
- Messrs
Davies, Peach and Mansfield (hereinafter shall be collectively referred to as
“the defendant’s employees”)
carried out their respective
roles with the knowledge they had at the time; those employees did not have the
skills or the resources
to understand and implement the most basic fire
prevention and suppression measures.
- The
plaintiff contended that, other than the change to Mr Jacob’s contract,
there was no change in the method of fire protection
or no improvement in the 3
to 4 years before the 2009 fire. Further, the plaintiff also contended that the
change was effected “without
analysing the consequences of the change or
preparing a written risk analysis”. This was consistent with the evidence
of Messrs
Davies and Peach.
- It
should be noted that the defendant raised contentions against the
plaintiff’s reliance upon the Singe letter. First, the
letter was drafted
in specific response to a complaint concerning the Henty tip (albeit under the
management of the defendant at
the time of the fire, it did not make reference
to the Tip). Second, the letter predated the amalgamation. Finally, the
defendant
also noted that there was a fire at Henty in 2006 –
notwithstanding the measures attended to in the letter; submitting the
measures
did not necessarily eradicate the possibility of the fire. It should be noted in
this respect that the failure to create
an adequate fire management plan was, in
fact, the source of many of the failures to take or to adequately take
precautions.
- Finally,
as to the absence of training, relied upon by the plaintiff, the defendant
contended the submission “fails for want
of evidence as to what [the
defendant’s employees] would have learnt by training and therefore, what
they would have done differently
had they been trained”.
- In
all, the evidence reveals, in this respect, that some fire management measures
were attempted and/or implemented and others were
not. A plan was not prepared
but the need for fire safety measures was recognised by the defendant. In light
of the evidence and
the findings I will make with respect to precautions, I find
the defendant, despite evidence of hazard reduction measures being implemented
and/or maintained to varying degrees of effectiveness (discussed below), had no
or no adequate fire management plan to prevent the
ignition or spread of fire.
Create and maintain an effective firebreak
- The
defendant recognised the need for a firebreak as a means of fire hazard
reduction. This is illustrated in both the Crawford and
Singe letters and also
supported by, inter alia, the defendant hiring a contractor, Jindera
Bobcat, to maintain the firebreak. Further, Mr Peach described the firebreak as
adequate
for the purposes of fire prevention.
- The
firebreak was outside the netting fence and inside the boundary fence to the
south of the Tip. By December 2009 it was cured and
dry, and totally
inaccessible to vehicles. As to its maintenance and effectiveness the following
evidence is relevant:
- (1) Both Messrs
Seidel and Hunter described the firebreak as narrow with trees next to part of
the firebreak. Mr Seidel specifically
recalled long grass growing around the
trees.
- (2) The
defendant’s employees could not recall the firebreak being graded in the
years prior to the fire. Mr Mansfield gave
evidence that none had occurred in
the 2 to 3 years prior. Similarly, Mr Peach confirmed a record would have been
made if grading
occurred and no such document was produced.
- (3) Mr Peach
gave evidence, in lieu of grading, that the firebreak was maintained by Jindera
Bobcat. An invoice was tendered to establish
that Jindera Bobcat was paid for
slashing of the laneway leading to the tip and clearing the firebreak around the
tip in October
2009.
- (4) Mr Jacob
recalled the defendant “used to use a grader to go around it and grade
around it and that'd make a firebreak, and
I think in the last years, it was
just slashed”. He observed that “slash[ing] doesn't make a
firebreak” and a mowed
but not graded area does not make a firebreak.
- (5) Mr Hunter
gave evidence that the firebreak was less than 2 grader blades wide prior to the
fire, outside the netting fence, and
generally along the southern perimeter
fence of the tip reserve. It had a width of 2 to 3 metres, a width the expert
evidence described
as inadequate. He contended there was never any clearing done
either side of the firebreak and it was not very well maintained. He
had also
observed “lots of rubbish fallen, small branches and sometimes even large
branches and leaves and grass and stuff
scattered across it”.
- (6) Both Messrs
Davies and Peach gave evidence of the difficult terrain and fuel present in the
southern area of the Tip. Mr Davies
said he was unable to identify anything
within that southern area that would inhibit the progress of the fire to running
fire before
it hit the firebreak and perimeter fence. Mr Peach agreed that once
a fire started to go outside the south side of the bund, it would
run for 40 or
50 metres before it hits the netting fence and that there was no fuel reduction
of any sort in that area. Mr Mansfield
also gave evidence that if a fire started
anywhere along the southern side of the tip it would have nothing stopping it
developing
and running until it got to the 2 to 3 metre firebreak at the
boundary fence.
- (7) Mr Davies
gave evidence, by comparison, of the conditions at the Henty tip: there was a
large area cleared between the fence and
the tipping area at the Henty tip. The
clearance was up to 40 metres and it was more accessible. There were areas where
there was
total vegetation clearance, and fuel reduction historically included
sheep grazing.
- (8) Photographs
taken after the fire show a representation of the terrain underneath the long
grass and vegetation before the fire,
and illustrate the work required of a
bulldozer if employed prior to the fire to flatten the ground on the southern
side.
- All
four experts agreed that there was a firebreak around the perimeter of the Tip.
Mr Nystrom did not consider the cleared area was
properly described as a
firebreak – it was really a track. He considered the track did not provide
sufficient separation of
areas “that can burn”. It was not wide
enough and covered with trees and in consequence sticks and leaves.
- The
expert summary under the next heading “Causation”, with respect to
question 8 of the Joint Report, is also confirmatory
of the need to reduce fuel
to retard the spread of fire and to permit the most effective operation of any
firebreak.
- The
plaintiff submitted that the firebreak “was totally inadequate” and,
in light of the evidence that the firebreak was
not cleared, that the Court
should be satisfied that the firebreak at the Tip was not a firebreak.
- The
defendant contended that to extent possible a firebreak was maintained.
- Whilst
the defendant created and maintained a firebreak, the adopted means of
maintenance was unsatisfactory for the purposes of hazard
reduction. A firebreak
must be bare earth, wide and graded. Further, it would appear that the firebreak
should be wider, although
the defendant submitted this step was limited by
physical dimensions of the reserve on which the Tip was located. In light of the
evidence above, I accept the plaintiff’s submission that the maintenance
was deficient for the purpose of maintaining an effective
firebreak at the Tip
and that insufficient precautions were taken in that
respect.
Consolidate deposited waste into appropriate
areas
- The
evidence before the Court, in this respect, was that the defendant had knowledge
the mixing of waste and inappropriate dumping
and did not take action. The
defendant’s employees and Mr Jacob each gave evidence of an awareness of
waste being mixed together
as a problem at the Tip. This problem was identified
in the photographs of October 2009, which show a mixing of wastes, and confirmed
in the Waste Management Strategy reports. The defendant’s recognition of
the need for separation of waste may also be implied
by the general layout of
the designated waste areas, within the dumping area, which are indicated on
Annexure B.
- In
the 2004 Waste Management Strategy report, a problem at the Tip was identified
about site supervision resulting in mixing of waste
streams and inappropriate
disposal of waste. Those problems existed as at the date of the fire as can be
seen from the photographs
of 1 October 2009 and from the evidence of Messrs
Jacob and Mansfield as to the state of the Tip.
- Mr
Davies agreed that there had been no real change in relation to those problems
between 2004 to 2007 or in the period from 2010
to 2011.
- As
previously mentioned, identification of each area was determined by appearance
and was generally separated by approximately 10
metres.
- Mr
Jacob recalled the following estimates as to separation of
waste:
- (1) 10 to 15
metres separation between the green waste and the metal material;
- (2) 10 metres
between the green waste and the concrete waste;
- (3) some
separation between metal waste and the tyres; and
- (4) approximately
60 to 70 metres between the green waste and the household waste, with the
concrete area in between, tall, dry grass
linked each of the designated areas
for waste at the Tip in December 2009.
- Part
of Mr Jacob’s job was to move waste deposited in the wrong place. He said
he left it in the best condition he could, putting
waste in the appropriate area
and maintaining separation. However, he was limited to the hours he was
contracted to work. Mr Davies
also gave evidence that the push of waste did not
make a difference in terms of contamination because his expectation was that
“nobody
would go and ... retrieve anything out of the general waste to ...
put it in the correct place so it [the push] wouldn’t make
any difference
with, you know contamination”.
- As
to specific contamination, Mr Davies said he was aware there was regular
contamination of the green waste with the aerosol cans
and a range of other
materials mixed in with it. Similarly, Mr Mansfield noted that contamination
included green waste and scrap
metal within the general refuse area. There were
also grass clippings in the wrong area and other waste which he would not
relocate.
- Turning
to the supervision of dumping, Mr Mansfield said he could not see people dumping
rubbish at the western end of the bund from
the hut. However, he also gave
evidence that he would periodically inspect the site to ensure there were no
issues. This included
following some customers to see where they dumped their
rubbish.
- It
is also relevant to note the evidence of Mr Peach. He confirmed a car could not
be driven around the discrete piles of rubbish
at the Tip and that long dry
grass existed between each pile of rubbish.
- During
the course of the proceedings the plaintiff drew attention to photographs at the
Tip in October 2009 which showed a mixing
of wastes. It was submitted that that
evidence was also confirmed in the Waste Management Strategy reports and the
evidence of Messrs
Jacob, Peach and Mansfield.
- The
experts agreed “that the evidence appears to show that some effort was
made to separate different types of rubbish into
separate areas within the
Tip”. However, again, no comment was made as its effectiveness.
- As
to the separation of waste, the defendant contended that the evidence of Messrs
Jacob, Peach and Mansfield disclosed that to the
extent possible, having regard
to the long history of the Tip, the waste was separated.
- The
only expert that made any significant contribution to the question, as to which
there was a short fall in this respect, was Ms
O’Toole (Mr Nystrom spoke
of the desirability of separation and the adverse implication of not doing so
but did not venture
an opinion as to the state of the Tip). There was plainly
difficulties, in this respect, exacerbated by the reduction in Mr Jacob’s
work time. There was contamination of waste. This was not an area entirely
neglected by the defendant but clearly there management
of this issue was
deficient. The defendant was, to that extent, in breach of its duty of
care.
Remove fuel to prevent dangerous build ups
- The
defendant did not carry out any fuel reduction at the Tip in the years prior to
the fire, save for the annual burn of green waste
(see below, “Manage
green waste piles”). Particular emphasis, in this respect, was placed upon
evidence of the condition
of the southern area within the dumping area
immediately prior to the fire, noting the fire escaped via the south eastern
corner,
as well as the presence and condition of grass throughout the Tip.
- Mr
Davies confirmed there had been no fuel reduction done to the south and the
south east of the bund at the Tip at any time after
he was the Director of
Environment and Planning other than the firebreak and an annual burn of some or
all of the green waste, which
was conducted prior to the fire season. This
evidence is consistent with the evidence of Mr Peach.
- Mr
Jacob gave evidence as to the condition of the Tip in the south-east corner:
there was vegetation, phalaris and rye grass and “all
sorts of stuff up to
waist high” which was dry or cured, the vegetation was heavy, with
exceptional growth in 2009. Photographic
evidence of the grass alongside 44
gallon drums was also relied upon as an indicator of height.
- Mr
Peach was also shown a number of photographs he took of the Tip and its
environment. He agreed that that grasses in the Tip were
totally dry by
mid-December 2009. He gave evidence that the photographs showed the level of
vegetation in the tip at various times.
His evidence included
that:
- (1) material to
the south and the east of the bund was mainly long grass in October to December
2009;
- (2) there was
nothing to stop a fire going south from the bund towards the south-eastern area
of the reserve, within the netting fence
before the firebreak; and
- (3) “it
was known that this – and in a couple of other tips were problems and
would have to do some work on them”
in relation to the fire
risk.
- Mr
Peach also recalled that the grass was very dry on 17 December 2009 (when he
went and saw the fire).
- As
to the presence of fuel, generally, within the Tip the following evidence was
provided by Mr Davies:
- (1) He
confirmed there was nothing done by way of fuel reduction of the grass in any
area of the Tip other than the burn of green
waste, of any of the vegetation
depicted in the photographs shown to the witness.
- (2) There was
no difference in the grass in the eastern end of the tip, and the golf course,
in addition there was phalaris in the
tip which when it is dry burns.
- (3) He conceded
concern with a high level of fuel at the Tip that, if a fire starts and is a
running fire by the time it gets to a
firebreak, the firebreak is quite
ineffective unless it is very wide.
- (4) He recalled
it was very difficult to slash close to the waste in the land fill area of the
Tip without conducting landscaping
works.
- (5) He
confirmed the area to the south of the bund to the golf course had long grass
within it in most spring seasons.
- Further
observations were noted by both employees and residents who used the Tip on a
regular basis:
- (1) Mr Jacob
gave evidence that there was nothing done to reduce the grass prior to the fire
in the 8 years he worked at the Tip,
save for the burning of green waste, and
specifically referred to the area south of a line between the designated dumping
areas for
concrete and the tyres (reference was made to photographs).
- (2) Mr
Mansfield gave evidence there was heavy vegetation south of the western end of
the bund, and from the concrete to the green
waste areas to the netting fence.
Further, the grass shown in a photograph looking east on 1 October 2009, was
similar to the types
of grasses inside the netting fence, including phalaris..
Each of the grasses as he saw them there with the summer coming on grew
tall up
until the end of spring and then they turned into a dry grass, which was easy to
burn. Within the netting fence there was
a lot of grass in late Spring that grew
in that area because there was nothing stopping it growing and it grew quite
tall.
- (3) Mr Pumpa
gave evidence that the Tip had in each year a large amount of grass growing upon
it which by mid-December was fully cured.
He observed no slashing being
undertaken in the tip area for fire suppression.
- (4) Mr Seidel
recalled the Tip was in an appalling state prior to the fire, with often tall
grass within the Tip and around the perimeter
of the Tip.
- (5) Mr Hunter
recalled on the east side of the Tip there was a swampy area which always had a
lot of grass, fallen timber and wind-blown
rubbish.
- It
was also noted that the only area where there was no grass was where vehicular
access was required for users at the Tip. Nearly
all of the other areas around
the tipping areas were inaccessible to vehicles, and certainly inaccessible in
terms of slashing the
vegetation. Mr Peach gave evidence that a clean-up was
required before slashing could occur (as had been done at other tips).
- The
plaintiff primarily relied upon the evidence of Messrs Davies and Peach,
together with photographs of the Tip shown to witnesses
throughout the
proceedings, to support the submission that the defendant failed to remove fuel
and prevent dangerous build-ups in
the years prior to the fire.
- The
defendant contended that, to the extent possible, fuel free zones were created
and maintained: there is ample evidence, it was
submitted, that it was not
practical to slash between the waste by virtue of debris and topographical
impediments; in any event slashing
would only have left the fuel load on the
ground for it to burn when the fire started. Further, to the extent possible the
roads
were free of fuel and a firebreak was maintained.
- The
defendant also made reference to the height of the material on the land between
Walla Walla and Gerogery and the speed at which
the fire moved across properties
that were not in the Tip. It was submitted, “that provides a little bit of
information...
about the general state of the area” and support to the
proposition that “the Tip was no worse than any of the other
land”.
- In
summary, the expert evidence was that fuel load will be an important factor in
the spread of fire. (I also, in this respect, again
refer to evidence of experts
in the Joint Report at question 8, discussed below under
“Causation”). The removal of combustible
material including the
cured grass will retard the expansion of fire and permit a greater opportunity
for intervention of fire crews.
There was evidence as to the difficulties of
slashing in the Tip due to the state of the land but there was no evidence to
the effect
that slashing was not possible or attempts to slash was ineffective.
The evidence was that the defendant made no real attempt to
reduce fuel as the
Tip including by chemical means. There was a significant failure to take a
reasonable fire precaution, in this
respect, in accordance with the
defendant’s duty of care.
Install and maintain fire
fighting equipment
- The
defendant admitted there was no fire-fighting equipment at the Tip. However, two
submissions were advanced by the defendant in
respect to this admission: first,
such a measure could only be relevant if there was someone available to use it
and secondly, the
time which it took the people most likely to respond to get
into a position to fight the fire rendered such a measure essentially
useless.
It may be added that those who did attend upon the fire did so with fire
fighting equipment.
- No
further submission was advanced by the plaintiff in this respect.
- I
have earlier found the precaution was not reasonable. In any event, I agree with
the defendant’s submissions in this respect,
both in terms of the
personnel required and, as I will find under causation, the time taken to
respond.
Undertake inspection and monitoring of the facility
during periods of extreme bush fire risk
- The
defendant admitted that it did not undertake inspection and monitoring of the
Tip during periods of extreme bushfire risk. However,
in doing so a submission
was advanced emphasising the impractical nature of the measure by asking:
“By whom and when?”.
It was contended that the submission by the
plaintiff, in this respect, lacks a causal basis as the inspector would have to
be present,
by coincidence, at the time of the outbreak of fire to make any
difference. I agree.
Other Precautions
- The
following precautions essentially concern the issue of ignition but given that
the evidence may partially overlap with the above
discussion of precautions I
shall briefly deal with each matter.
Ensure different kinds of
waste are not mixed together
- This
precaution, as pleaded, goes to ignition but the evidence overlaps with the
above discussion at “Consolidate deposited
waste into appropriate
areas”.
Cover waste with cover material on regular
basis
- The
evidence establishes that there was rarely soil available to cover the household
waste. Messrs Davies, Peach and Jacob were aware
of the shortage of soil.
- Mr
Mansfield explained that the use of soil on top of rubbish was to stop the
chances of fire coming out of it, in other words, to
limit that chance. He
explained that the cover and compaction of waste is done to improve fire
protection. He recalled there was
a lot of rubbish that was not properly pushed
up in the months before the fire and without soil cover. Further, there was no
soil
cover in the second half of 2009 to cover waste in the general refuse
area.
- Mr
Davies recognised there was an ongoing problem due to the uncovered tipping face
at the Tip from 2004 until the close of the Tip
in 2009. The western end of the
bund did not have any cover on it and it was just a build-up of refuse. He also
gave evidence of
problems obtaining soil for cover at the Tip. He said that in
order to cover the parts of the Tip which could benefit from soil cover
you
would need several thousand cubic metres of soil.
- Mr
Jacob acknowledged the opportunistic nature of the availability of soil. His
evidence also established that the process of covering
with soil required new
soil regularly. Mr Jacob also said there was no soil available once they had
moved the general waste area
from the trenches to the east of the netting fence,
where soil from the trenches was available to cover the general waste, to the
western area of the tip.
- Mr
Jacob was asked what Mr Peach’s response to an apparent offer of soil was
and said “that they can’t afford to
do anything”. His later
evidence sought to demonstrate that there was actually no cost, other than some
transportation, associated
with the offer. The sequence, it was contended by the
defendant, was unconvincing but substantially irrelevant by virtue of Mr Davies
estimate of the amount of soil required as noted above. The plaintiff
maintained, although many hundreds of cubic metres of dirt
would be required to
cover the exposed general waste at the time of the fire, only smaller amounts
were required on a weekly basis.
This was never supplied.
- The
defendant also submitted there was a shortage of dirt. Further, it was contended
that Mr Jacob’s offer was implausible but,
in any event, his offer would
have only provided soil for a very limited time and, given the lack of knowledge
as to how the fire
started it cannot be shown that dirt would have prevented it
from doing so.
- Ms
O’Toole opined that the real problem lay in the size of the face of the
Tip, which required reduction so that it could be
properly
covered.
Manage green waste piles
- An
annual burn of green waste was identified as fire hazard reduction work
undertaken by the Rural Fire Service at the Tip each year.
Mr Jacob confirmed
that this annual burn took place prior to fire season in 2009.
- During
the course of evidence it was revealed that “green waste” did not
include grass clippings, which were permitted
to be dumped within the household
waste. Further, photographs established piles of green waste mixed within other
waste.
- Attention
was again drawn to correspondence provided by the Rural Fire Service, namely,
the letter received by Mr Peach on 8 October
2009 (“the Rural Fire Service
letter”). The letter concerned the difficulty in the area of the green
waste at the Tip
due to the unevenness of the ground and inability to drive
around the pile of green waste. The letter requested that the defendant
arrange
for the area on the site of the green waste to be levelled, and a good perimeter
boundary be established to ensure the pile,
once alight is easily monitored. The
letter went on to say that, “[a]t present the unlevel ground is also
proving to be a trip
hazard and the pile cannot be circumnavigated properly at
present to prevent a fire escape”. Messrs Peach and Davies confirmed
no
action was taken in relation to this letter. Mr Davies gave evidence that there
were inaccessible areas to the south of the green
waste area and that the area
referred to by the Rural Fire Service was a non-trafficable area. Mr Peach also
agreed that the green
waste area could not be circumnavigated with
vehicles.
- During
cross-examination, Mr Pinnuck gave evidence that the Rural Fire Service would
raise any issues it had with the fire risk posed
by particular property. The
Rural Fire Service’s only complaint concerned their ability to access all
sides of the green waste
they were periodically requested to burn off. Further,
in relation to being able to “drive around” the green waste, Mr
Davies’ position was that the Rural Fire Service would need to be
comfortable with the access they had to the green waste.
Mr Davies said, and no
issue was taken with it, that after the green waste was burnt there would no
longer be green waste, as such.
- The
defendant suggested that it may be inferred that the Rural Fire Service letter
was prompted by difficulties they experienced with
the annual burn in 2009 and
was not directed to some more general concern with the condition of the Tip.
Such an inference would
support Mr Peach’s view that the letter was
indicating a need for some attention to the issue prior to the next burning of
green waste. The defendant also contended that the letter should not be
understood as an assessment of the state of the entire Tip.
Rather, the subject
of the letter is limited to “the burning of green waste”.
- Mr
Davies also stated there was nothing done to make it safer to burn the green
waste. He also conceded that the green waste location
was “not a fantastic
situation”.
- In
my view, the defendant recognised and, to the extent possible, dealt with green
waste by an annual burn off. The issues raised
by the Rural Fire Service did not
affect the burn off of green waste in 2009. Attention was directed to the need
to take remedial
steps in the following year. I do not consider the plaintiff
has demonstrated a failure of the defendant to take or adequately take
a
reasonable precaution in this respect.
Manage combustible
material to minimise risk of combustion
- Mr
Mansfield acknowledged that the covering and compaction of waste compaction of
waste was done to improve fire protection. Mr Jacob
was engaged by the defendant
as a contractor to push the rubbish, this included separating and compacting
waste (as discussed above,
Mr Jacob’s ability to cover the waste was
restricted due to limited supply and availability).
- As
previously mentioned, Mr Jacob’s work was reduced to a fortnightly basis,
for approximately 2 hours each fortnight. He asked
Mr Peach what to do if he
could not complete his task within the hours Mr Peach wanted him to do, and he
was told by Peach to “just
leave it [the rubbish] there”.
- Whilst
it may be inferred the defendant recognised the need for this measure of fire
protection, Mr Davies said that pushing up of
the waste had several purposes,
including keeping the dumping area tidy, and was not prepared to accept its
relevance to fire risk
reduction in isolation.
- Mr
Davies said that tip supervisors were given instructions about large heaps of
grass clippings being undesirable and identified
the practical reality, based on
his experience, that grass clippings are spread by the various things done at a
tip. Pushing up the
grass clippings at the tip face would spread them out.
- Mr
Peach acknowledged that the there was little cover around for the general waste
at the Walla Walla land fill which resulted in
the rubbish being pushed up but
not covered. There was an endeavour to compact it.
- Mr
Peach said the two areas of the tip that he was concerned the fire could break
out of were the general refuse area and the green
waste area, because of the
nature of the material deposited. The photographs taken by Mr Peach are on 17
December 2009 of the rear
of the bund on the western end of the tip bund show
the extent of general waste pushed at the site, which was left exposed and
generally
uncompacted.
- The
plaintiff submitted that the change which Mr Davies authorised in August 2009
from a weekly to fortnightly push of waste at the
Tip by Mr Jacob changed the
fire risk, because there was no attention to the amount of material deposited
over a two week period
until it was pushed. This change increased the
risks.
- In
this respect the plaintiff also relied upon the above stated concession of Mr
Davies with respect to the Crawford and Singe letters.
- Further,
it was contended by the plaintiff that “[p]hotographs taken after the fire
show a representation of the terrain underneath
the long grass and vegetation
before the fire, and illustrate the work required of a bulldozer if employed
prior to the fire to flatten
the ground on the southern side”.
- As
previously stated, the defendant relied upon the evidence of the
defendant’s employees as discussed under this and the preceding
headings.
- I
consider the defendant knew that the pushing up and compaction of waste was
relevant to the matter of fire risk at the time and
that by reducing Mr
Jacob’s hours had the effect on increasing the risk of fire outbreak.
There was a precaution taken but
it was inadequate.
Discouraging
Intruders
- In
the Joint Report the experts identified “erecting a perimeter fence of
some sort to act as a discouragement to intruders”
as a reasonable fire
precaution. This measure was not relied upon by the plaintiff, save for
acknowledging it was identified by the
experts. In response, the defendant
simply submitted that there is no evidence to suggest that intruders had
anything to do with
the outbreak of the fire.
Conclusion: Breach
of Duty
- I
consider that a reasonable person in the position of the defendant would have
adopted and implemented the fire precautions which
the experts opined were
reasonable in the Joint Report and their concurrent evidence, excepting for
“having fire fighting equipment
permanently available at the tip”,
noting my earlier conclusion that such a measure would not be a step that a
reasonable person
in the defendant’s position would have taken, either
having regard to cost or practicality. I should also note, in that respect,
that
I do not consider Dr Green’s disagreement with one of the precautions
mentioned in question 6 of the Joint Report represents
a significant and proven
departure from the identified list of reasonable fire precautions advanced by
the other three experts.
- That
conclusion may be reached upon the basis of the reasons given by the experts for
their opinions which are sound and rational
and derived from or fall within
their area of expertise, noting an exception in that case with Ms O’Toole
save as to design
measures. It is true, as the defendant submitted that the
experts were not tip management experts as such, but their opinion is derived
from their “knowledge of fire and fire safety” (for example, Mr
Nystrom’s qualifications and experience concerned
fire investigations).
Their opinion cannot be so lightly discounted. That is particularly so given
that, in many respects, the opinions
held by the experts as to reasonable fire
precautions coincided with the opinions of persons responsible for the
day-to-day administration
of fire management at the Tip, even if some of those
persons did not have formal training. That includes the recommendations of the
Rural Fire Service.
- I
consider that it was reasonable for a person in the position of the defendant to
take the precautions identified in paragraphs (a),
(b), (c) and (d) to prevent
the spread of fire once ignited in the Tip.
- The
plaintiff has proven, on the balance of probabilities, a breach of duty, with
respect to escape, by the failure to sufficiently
take those precautions against
the risk of harm, namely, in the following areas: prepare and implement a fire
management plan; create
and maintain an effective firebreak; consolidate
deposited waste into appropriate areas and remove fuel to prevent dangerous
build
ups.
CAUSATION
Submissions of the Parties
The Plaintiff
- In
summary, the plaintiff made the following submissions as to causation with
respect to the limb of its claim concerning the spread
of fire:
- (1) The
evidence established that the fire would have been extinguished, contained or
controlled prior to exiting the Tip or alternatively
reaching Walla
Walla-Jindera Road if the defendant had not failed to take the necessary
precautions in tip management.
- (2) In written
submissions, the plaintiff referred to the evidence as to the known physical
conditions of the Tip at the time of the
fire, which caused both the ignition of
the fire and its escape from the Tip. The plaintiff referred in this respect to,
for example,
the large deposits of contaminated, combustible waste in the green
and household rubbish areas and tall cured grass and other heavy
vegetation
between the piles of waste, linking the general-household waste area to other
areas within the Tip for deposit of different
types of waste.
- (3) Reference
was made to the evidence of Mr Grosse. It was submitted that Mr Grosse’s
evidence was that, when he arrived at
the Tip, the majority of the fire was
still in the Tip area inside the netting fence, except on the southern side. His
evidence was,
it was submitted, that he did not believe there was any burning
outside the netting fence although there was a little bit on the
golf club side.
Having regard to my earlier findings, I do not consider that submission properly
captures Mr Grosse’s evidence.
I will return to this evidence below.
- (4) The
plaintiff then referred to other pieces of evidence such as Messrs Pumpa, Jacob
and Walker.
- (5) As to the
evidence of the experts, in the written submissions of the plaintiff it was
stated that “the experts accepted
that the spread of the fire would be
inhibited or stopped by the implementation of various steps including waste
segregation, fuel
reduction and adequate firebreaks”. In oral submissions,
the plaintiff referred to the statement of the experts in the Joint
Report (at
question 8) that “the slowing effect of other measures [other than the
presence of a person at the Tip] might have
bought sufficient time for the fire
fighters to successfully intervene”. The plaintiff submitted that
ultimately the question
of causation is to be determined by the Court on the
totality of the evidence. The Court may be informed by the experts but the Court
is to make its own judgment.
- (6) In that
latter respect, the plaintiff submitted the Court should have regard to the
speed of the fire and where applicable people
were at various times. If
appropriate steps had been taken by the defendant then the speed of the fire
would have been much less.
The fire spread quickly because of the high level of
fuel so that even a quick response by the community could not effect
suppression.
Given the time it took for Mr Grosse to arrive at the fire, if the
fire was of lower intensity and had moved more slowly (and therefore
for a
lesser distance) Mr Grosse’s tanker alone would have been able to stop the
fire. Further, other fire fighting appliances
reached the Tip soon after Mr
Grosse.
- (7) In those
circumstances, the fire fighters would have been able to get in front of the
fire in contrast to the circumstances on
the day of the fire, because of the
fuel intensifying the fire they could not do so. Further, the fuel that existed
on the day had
the capacity to “spot”.
- (8) In all it
was submitted that the circumstances were such that there would not have been an
escape on the balance of probabilities
from the Tip if the reasonable
precautions required of the defendant had been taken by it, including the
building of an appropriate
firebreak.
The
Defendant
- In
summary, the defendant made the following submissions as to
causation:
- (1) No one had
been able to say, on the balance of probabilities, what caused the fire or where
it started.
- (2) The
existence of these facts are usually necessary to determine factual
causation.
- (3) The
evidence in this case did not establish what caused the fire and to the extent
that anything done by the defendant influenced
the risk of a fire starting that
is not sufficient to establish causation.
- (4) All experts
agreed that none of the approved precautions would prevent the starting of the
fire and the highest the experts would
put their position, as to the cause of
the spread of the fire, was that the absence of the precautions
“might” have the
effect of slowing the progress of the fire.
- (5) As to the
question of timing and Mr Grosse’s evidence, it was submitted that, by the
time Mr Grosse arrived, the fire had
already travelled through the fence, around
the perimeter of the Tip towards Walla Walla-Jindera Road. He described in para
9 of
his statement that he accepted the fire had advanced sufficiently far
across the golf course that he had to take his truck back up
the driveway to the
gate of the Tip and to drive to the road to fight the fire. By the time he got
to the Walla Walla-Jindera Road
the fire had already jumped across the road. On
this evidence, the plaintiff is unable to establish that, if the measures or
precautions
had been taken, the fire would have been stopped from spreading
beyond the Tip or the Walla Walla-Jindera Road.
Expert
Evidence
- I
have previously referred to the question and answers given by the experts as to
questions 6 and 7 of the Joint Report. Both of those
questions are relevant to
the present question of causation. Two other aspects of the Joint Report should
be referred to in this
context: that is question 4 and 8. Those questions and
answers are extracted in full below:
Q4. Do you agree as to what caused or contributed to the spread of the Fire?
If you do not agree what is the basis for your disagreement?
A4.
All three experts agree that the main cause of the spread of the fire were the
prevailing weather conditions.
Mr Crowe and Mr Nystrom think that if the locations at which different types of
rubbish within the tip had been deposited were well
separated and the ground
between them kept cleared, any fire which began in an available fuel load within
the tip would have taken
longer to reach the stage at which the wind would
propagate it. This is because it would have less opportunity to cross into
another
fuel load within the tip, be it other rubbish or grass or trees.
Dr Green adds by way of supplementary comment that in the prevailing wind
conditions the fire would have spread quickly in any event.
Q8. Which of the measures that should have been employed would have stopped
the Fire from starting or spreading? If you do not agree
as to which measures
would have stopped the Fire from starting or spreading:
a) On which measures do you disagree?
b) Why?
A8.
The experts will answer this question by reference to the possible precautions
set out in answer to question 6 for the reasons as
to their concept of their
role given in answer to question 7.
All four experts agree that none of those precautions would prevent the starting
of a fire by lightning or deliberate ignition. So
far as other possible sources
of ignition are concerned, the precautions would have reduced the risk of
ignition.
As to the spread of fire, the presence of a person at the Tip, who could use
available fire fighting equipment, at the early stage
of the fire’s
development would have prevented its spread. Absent that, the other measure
would have slowed the development
of the fire, but the particular wind
conditions at any time would be very important. If the prevailing wind
conditions did not cause
a quick spread of the fire, the slowing effect of the
other measures might have bought sufficient time for fire fighters to
successfully
intervene.
- As
earlier mentioned the experts gave concurrent evidence and the parties
formulated questions for that concurrent evidence, which
are annexed to this
judgment (see Annexure E). Each question correlated with the corresponding
question within the Joint Report.
No question was raised by the Court or the
counsel as to question 6 or 7.
- It
is convenient to repeat the question which corresponded to question 8 of the
Joint Report. That question was:
Explain how each reasonable fire precaution identified in A6 would or may have
reduced the risk of ignition and/or spread of fire
at the Tip.
- No
question was directly put by senior counsel for the plaintiff as to the opinion
of the experts in the Joint Report in answer to
question 8 but questions were
asked which were referrable to the question formulated for the concurrent
evidence. Senior counsel
for the defendant asked only two questions of Mr
Nystrom in this respect. First, whether the opinion expressed in answer to
question
8 were opinions he formed as part of the Joint Report. Secondly,
whether he adhered to that view in his concurrent evidence. He gave
an
affirmative answer to both questions.
- The
following is a summary of evidence given in the course of the examination of the
experts by the plaintiff’s senior counsel
as to concurrent question
8:
- (1) Dr Green
agreed that the reduction of grass fuel by slashing, controlled burning or
chemical reduction would lessen the rate and
intensity of the spread of fire.
That step would also lessen the prospect of spotting.
- (2) Dr Green
gave the following evidence in cross-examination by the senior counsel for the
plaintiff:
- (a) If a fire
is running in short grass, a firebreak will be more effective particularly if it
is clear.
- (b) Shorter
grass will not eliminate spotting but it will reduce it and make a firebreak
more effective.
- (c) The
effectiveness of a firebreak will depend on the flame length above the fire
because “if you’ve got flame length
that effectively goes across
that gap for any reason then you get pre-heating and the fire takes off more
rapidly than it would than
if there was no flame there and a single point of
connection”.
- (d) The use of
cells to store rubbish rather than a bund reduces the fire risk.
- (e) Fuel
reduction and firebreaks will limit the spread of fire depending upon their
quality.
- (f) If fuel is
reduced by cutting grass, then there is a dramatic decrease in the opportunity
for the fire to cross a firebreak, irrespective
of wind strength because the
source of spotting has been removed.
- (3) Ms
O’Toole gave evidence that in designing a tip what was first and foremost
in stopping or inhibiting the spread of fire
was a firebreak. Also important is
limiting the tipping area and the segregation of waste.
- (4) Mr Nystrom
stated that short grass is going to burn substantially more slowly than tall
grass. A firebreak is an effective tool.
He considered the firebreak on the
southern side of the Tip was ineffective because there were trees over the
firebreak dropping
timbers, leaves and bark. A firebreak should be ideally 10
metres and would be clear.
- (5) In the
further questions raised with respect to question 4, Dr Green indicated an
answer to question 4(a) that the degree to which
incombustible material between
fuel centres inhibits fire spread very much depends upon the weather conditions
and fuel loads. The
larger the fuel load, the higher the flames. The spread of
incombustible material will influence the spread of fire, particularly
under
windy conditions. There are variations but there is connectivity between fuel
and extreme conditions such as strong winds.
- (6) Mr Crowe
expressed the view that the question of fuel needed to be looked at both in
terms of its quantity and its arrangement.
- (7) As to the
second question under paragraph 4(b), Mr Crowe indicated that he did not know
the answer to the question of how long
did it take for the fire to propagate
under the influence of wind. That question depended upon the quantity and
arrangement of fuel
and the connectivity to which Dr Green had referred. Dr
Green indicated that flame spread is really dependent upon the flame length
and
how close that flame is to the ground. As wind increased, flame tilts towards
the ground and, in the result, the radiation flux
hitting the front of the flame
front increases and the fire spreads more quickly.
- (8) Mr Nystrom
was of the view that under the influence of wind the fire was able to escape in
about 20 minutes. Dr Green indicated
that if the fire was travelling up-hill it
would travel much more quickly. Mr Crowe also indicated that the period of
propagation
was dependent upon the nature, arrangement and quantity of the
fuels.
Conclusion: Causation – Escape of the Fire
from the Tip
- In
my view, the plaintiff has failed to prove, on the balance of probabilities,
that the failure by the defendant to take the pleaded
steps or precautions to
prevent the spread of the fire caused the particular harm suffered by the
plaintiff. In other words, the
plaintiff has not demonstrated that, if the
reasonable precautions were sufficiently taken, that the harm caused to the
plaintiff
by the spread of the fire would have been avoided. Hence, the
plaintiff has failed to show factual causation, namely, the negligence
was a
necessary condition of the occurrence of the harm.
- Whilst
I have found breach of the duty in relation to the failure to sufficiently take
some of the pleaded precautions (where a reasonable
person in the
defendant’s position would have taken those precautions and the defendant
was found to have insufficiently done
so), I agree with the submission of the
defendant that the evidence in the case rises no higher than that, some actions,
steps or
precautions which might have been taken would have influenced the risk
of fire spread: Carangelo at [71].
- As
earlier mentioned, the experts agreed that six out of seven of the precautions
identified in the answer question 6 in the Joint
Report were reasonable fire
precautions. The experts did not determine whether the Tip was adequately
managed or managed reasonably
or what the defendant should have done. .
- When
the consideration of the “presence of a person” is put aside (noting
that, the Court has found that, if sought, the
step of placing a person at the
Tip who could use fire fighting equipment and the placement of that fire
fighting equipment at the
Tip were not that required of a reasonable person in
the defendant’s position, for the purposes of s 5B(1) of the Civil
Liability Act), the experts’ opinion was that the measures identified
in the answer to question 8 would have only “slowed the development
of the
fire” subject to the particular wind conditions at any time being a
further important consideration. The highest the
opinion of the experts reached
as to the spread of the fire, assuming (contrary to the evidence) that the
prevailing conditions did
not cause a quick spread of the fire, was that
“the slowing effect of the other measures might have bought sufficient
time
for the fire fighters to successfully intervene”. It follows, as the
defendant submitted, that persons eminent in the field
in considering the
questions as to ignition and spread of fire, were not prepared to express an
opinion that it was more likely than
not that the measures would have slowed the
fire to such an extent as to provide sufficient time for fire fighters to
successfully
intervene.
- Senior
counsel for the defendant correctly submitted, in my view, that the effect of
the evidence of the experts as to the question
of causation that the fire
“might have bought sufficient time for the fire fighters to
intervene” was as follows:
- (a) There is
nothing probable about the eventuality;
- (b) All that
the proposition entails is that the risk of spread might have been lower in
circumstances;
- (c) It was not
more probable than not that any action on the part of the defendant would have
arrested the spread of the fire.
- Further,
there is nothing in the totality of the evidence before the Court which would
warrant a different conclusion. As I have earlier
found, Mr Grosse was the first
to arrive at the fire. He found that, at that time (about 1.45pm), the fire had
already travelled
through the perimeter fence of the Tip on the southern side
and was moving quickly towards Walla Walla-Jindera Road. There was very
tall
grass within the dumping area and in the grass area outside the perimeter of the
Tip. Mr Grosse abandoned the fire fight at
the Tip due to the topographical and
access difficulties. He moved to fight the fire from a different vantage point.
However, the
fire advanced sufficiently rapidly across the golf course. He
retreated the Walla Walla-Jindera Road. By the time he reached that
location the
fire had already jumped the road.
- Mr
Grosse was questioned as to whether he first entered the golf course before
travelling to Walla Walla-Jindera Road. It appears
that he may have momentarily
done so and moved on because the fire had “raced up” and
“beat” Captain Jacob
and himself. He and Captain Jacob travelled to
the road, but again the fire had already crossed. The total time from cutting
the
bolts to the gate until the fire jumped the road was 10 to 15 minutes.
- It
follows that the submission by the defendant that the evidence of Mr Grosse
supports or is consistent with the opinion of the experts
must be accepted. The
earliest person to arrive at the Tip to fight the fire was too late to prevent
the escape of the fire and,
in the result, it cannot be found, on the balance of
probabilities, that the fire may have been stopped by the measures taken.
- It
is true that the evidence reveals that by the various measures the risk of the
spread of the fire might have been lower in the
circumstances but it is another
matter altogether to say that the progress of the fire may have been slowed to
such an extent as
to meet the time of the arrival of the first fire fighter who
could have arrested the fire at the Tip.
- This
conclusion is a fortiori when regard is had to the fact that, as I have
found, both the location of the commencement and the cause of the fire is
unknown.
That consideration has an additional, significant adverse impact upon
any finding of factual causation in favour of the plaintiff
as those important
elements are relevant to any consideration as to whether the pleaded measures
would have sufficiently slowed the
spread of the fire so as to permit the
effective intervention of fire fighters.
- Overall,
as to the claim based on the escape or spread of the fire, I find the plaintiff
has proved the existence of a duty owed by
the defendant and the defendant has
breached that duty in failing to take certain measures to prevent the spread of
the fire. The
plaintiff has, however, failed to prove causation, namely, that
the negligence established caused the harm suffered by the plaintiff
or, to use
the language of s 5D(1)(a), that the negligence was a necessary condition of the
occurrence of the harm.
- The
plaintiff case on this aspect of her claim must
fail.
NUISANCE
Legal Principles
General Principles
- The
act (or omission) on which a claim in nuisance is based may be one indirectly
causing a physical injury to land, or a substantial
interference with its
enjoyment or an interference with rights over land: R Balkin and J Davies,
Law of Torts(4th ed, 2009, LexisNexis Butterworths) at 453 [14.7].
- A
nuisance is an unreasonable interference with the use and enjoyment of land: an
“invasion of the common law rights of an owner
or occupier of land”:
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 60 (per Windeyer J).
- The
cause of action belongs only to the person with property rights. A plaintiff can
only sue in nuisance if he or she has an interest
in the land affected: Law
of Torts at 466 [14.33]. However, those who merely reside with the owner or
tenant, even though as a member of his or her family, have no
standing to sue in
nuisance, despite the fact that the damage complained of is suffered by all
members of the household: Law of Torts at 466 [14.33], citing Oldham v
Lawson (No 1) [1976] VicRp 69; [1976] VR 654.
- 375 In
order to have standing to bring an action in private nuisance, the plaintiff
must have some property rights in or over the
land affected, or must be an
occupant of that land. Further, only unreasonable interferences are actionable
in nuisance: Southern Properties (WA) Pty Ltd v Executive Director of the
Department of Conservation and Land Management (2012) 42 WAR 287; [2012]
WASCA 79 (“Southern Properties”) at [118].
- Consistent
with the terms of s 5A(1) of the Civil Liability Act, in Warragamba
Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701
(“Warragamba Winery Pty Ltd”), the Court said (at
[669]):
[669] Since Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13;
(1994) 179 CLR 520 the common law of Australia concerning liability for
permitting a fire to get out of control has been absorbed in the tort of
negligence.
(See also Melaleuca Estate Pty Ltd v Port Stephens
Council (2006) 143 LGERA 319; [2006] NSWCA 31 per Giles JA at [58] (with
McColl JA and Hunt AJA agreeing); Gales Holdings Pty Ltd v Tweed Shire
Council (2013) 85 NSWLR 514; [2013] NSWCA 382 (“Gales Holdings Pty
Ltd”) per Emmett JA at [144] and Leeming JA at [276]-[283], namely,
damages for nuisance can only be recovered if the loss is reasonably
foreseeable, and not merely loss suffered as a direct result of the
nuisance).
- In
considering nuisance and whether or not an occupier has wrongfully interfered
with another’s enjoyment of land, the test
to apply is what is reasonable
in the circumstances, having regard to the ordinary uses of a particular
society: Gales Holdings Pty Ltd at [132], citing Elston v Dore
[1982] HCA 71; (1982) 149 CLR 480 at 487-488. In this respect, while negligence is
not essential in the determination of nuisance, fault of some kind is almost
always
necessary: Gales Holdings Pty Ltd at [139].
- It
is the foreseeability test for remoteness which applies in nuisance as it does
in negligence in order to assist in determining
the amount of damages that may
be awarded: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The
Wagon Mound (No 2)) [1966] UKPC 1; [1967] 1 AC 617 (“Wagon Mound (No
2”)).
- The
test of whether an interference is unreasonable is objective: Marsh v Baxter
(2015) 49 WAR 1; [2015] WASCA 169 at [247]. In determining whether or not an
interference is unreasonable, the court balances the desire of the owner or
occupier to use and
enjoy property rights without interference against the
desire of others to undertake the activity that causes the interference (see
Directors of St Helen's Smelting Co v Tipping (1865) 11 ER 1483, per Lord
Westbury LC at 650–651; Southern Properties at [119]), perhaps
limited by the foreseeability of the harm likely to be caused by the
interference as a measure of reasonableness:
see The Wagon Mound (No 2)
at 640, cited in Stockwell v State of Victoria [2001] VSC 497 at
[608]–[609] (per Gillard J). It is not the conduct of the defendant that
causes the interference that must be unreasonable, but rather
the interference
with the Plaintiff’s use or enjoyment of their
property.
Statutory Authority
- The
defendant succinctly and correctly set out the relevant authority in nuisance,
with respect to statutory authorities. The following
derives from that
analysis.
- Pursuant
to the common law, if a statute has authorised the doing of something which,
after taking all reasonable care and adopting
such precautions as are reasonable
in the circumstances, nevertheless constitutes a nuisance, then Parliament must
be taken to have
authorised a nuisance to that extent: Nielsen v Brisbane
Tramways Co Ltd [1912] HCA 21; (1912) 14 CLR 354 at 369 per Isaacs J.
- In
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660;
[2005] HCA 46, the High Court dealt with a Council’s reliance in answer to
a claim in nuisance on the defence provided for by s 733(1) of the Local
Government Act. At [16], Gleeson CJ, Gummow, Hayne and Callinan JJ
said:
[16] However, neither at trial nor in the Court of Appeal does attention appear
to have been drawn to a line of authority marshalled
by the English Court of
Appeal in Marcic v Thames Water Utilities Ltd ([2002] QB 929 at 988).
This indicates that a body such as the Council is not, without negligence on its
part, liable for a nuisance
attributable to the exercise of, or failure to
exercise, its statutory powers. In this Court, it had been remarked by Gavan
Duffy
and Starke JJ in Metropolitan Gas Co v Melbourne Corporation [1924] HCA 46; (1924) 35 CLR
186 at 197:
“And though it was said in argument that the
Company's claim was founded upon either trespass or nuisance or negligence,
still
the liability of the Corporation must depend upon whether, in the exercise
of its statutory powers, it has acted negligently, so
as to do unnecessary
damage to the Company.”
- In
the identified decision of Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 1723; [2002] QB
929, Lord Phillips said (at [60]):
[60] In Department of Transport v North West Water Authority [1984] AC
336 statutory authority was invoked by way of defence by a water undertaker in
answer to a claim in nuisance in respect of damage caused
by a burst water main.
Webster J set out the following propositions, which were subsequently approved
by the House of Lords, at p.344:
“1. In the absence of negligence, a body is not
liable for a nuisance which is attributable to the exercise by it of a duty
imposed upon it by statute: see Hammond v Vestry of St Pancras (1874) LR
9 CP 316. 2. It is not liable in those circumstances even if by statute it is
expressly made liable, or not exempted from
liability, for nuisance: see
Stretton’s Derby Brewery Co v Mayor of Derby [1894] 1 Ch 431, and
Smeaton v Ilford Corpn ([1954] Ch 450. 3. In the absence of negligence, a
body is not liable for a nuisance which is attributable to the exercise by it
of
a power conferred by statute if, by statute, it is not expressly either made
liable, or not exempted from liability, for nuisance:
see Midwood & Co
Ltd v Manchester Corpn [1905] 2 KB 597; Longhurst v Metropolitan Water
Board [1948] 2 All ER 834; and Dunne v North Western Gas Board [1964]
2 QB 806. 4. A body is liable for a nuisance by it attributable to the exercise
of a power conferred by statute, even without negligence, if
by statute it is
expressly either made liable, or not exempted from liability, for nuisance: see
Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB
772...”
- The
functions carried out by the defendant pursuant to Ch 6 of the Local
Government Act (which include “waste removal, treatment and disposal
services and facilities”) and the Crown Lands Act are exercises of
statutory power or duty.
- In
accordance with the reasoning of Webster J in Department of Transport v North
West Water Authority [1984] AC 336 at 344, in the absence of negligence, the
defendant is not liable in nuisance.
- Further,
in Warragamba Winery Pty Ltd, the Court said (at
[673]):
[673] I have noted that the plaintiffs have sued in nuisance in the alternative
to their other counts. In Fleming at 403 the authors
note that many cases
concerning fire damage have included claims for nuisance but that the common
response of courts in such cases
has been that such a claim cannot succeed
without proof of negligence...
Submissions of Parties
The Plaintiff
- I
now turn to a summary of the submissions advanced by the plaintiff pursuant to
her claim in nuisance:
- (1) The
defendant is also liable in nuisance as it unreasonably interfered with the
plaintiff’s use and enjoyment of her property
at Gerogery.
- (2) The
relevant test, as applicable in the present case, is whether it was reasonably
foreseeable to a person in the position of
the defendant that neighbouring
properties would be exposed to a threat of damage, which is foreseeably likely
to result from the
state of its premises. That is, whether it was reasonably
foreseeable that a poorly managed and maintained tip might cause or contribute
to the ignition of a fire which might spread to adjoining properties.
- (3) In light of
the evidence before the Court, the plaintiff submitted the Tip was a potential
nuisance in the sense that it was a
potential source of ignition of a fire,
which could spread beyond its boundary having regard to the state of the
premises.
- (4) There is no
doubt that the nature of the harm suffered by the Plaintiff – property
damage caused by fire – was foreseeable
to the Shire. Further, that fire,
in destroying and/or damaging property, is unreasonable interference. Instances
of nuisance by
material damage to property include damage by fire: Goldman v
Hargrave [1966] UKPCHCA 2; (1966) 115 CLR 458; Casley-Smith v FS Evans & Sons Pty Ltd
(No 5) (1988) 67 LGRA 108.
- (5) No further
argument was advanced in oral submissions beyond stating that nuisance is an
action that exists independent of negligence
and acknowledging that “the
negligence has an influence in the question of
foreseeability”.
The Defendant
- The
defendant did not advance any written or oral submissions, with respect to the
plaintiff’s claim of nuisance, beyond an
outline of the relevant authority
(as outlined above). In reliance on that authority, in particular that which
concerns statutory
authority, the defendant contended that “if the
plaintiff’s claim in negligence fails, the claim in nuisance should also
fail”.
Conclusion: Nuisance
- In
my view, the authorities make clear that the failure of the plaintiff’s
claim in negligence in this matter should result
in the claim under nuisance
also being rejected. In any event, I consider the defendant was involved in the
exercise of functions
conferred by statute and, in the absence of an action in
negligence, cannot be liable in nuisance.
SECTION 43A OF THE
CIVIL LIABILITY ACT
- In
the circumstances, it is unnecessary to consider the defence raised by the
defendant under s 43A of the Civil Liability
Act.
CONCLUSION
- Upon
the findings made by the Court as to causation, the plaintiff’s claim in
negligence must fail and an order for costs made
in favour of the defendant. So
too must the claim in nuisance fail.
- It
is appropriate that the parties be given the opportunity of making further
submissions on the common questions. The parties should
confer as to those
questions. I will make directions for the filing and serving of their responses
in the light of this judgment.
The parties shall have liberty to make further
submissions as to costs.
ORDERS
- In
all the circumstances, the Court orders:
- (1) The
plaintiff’s claim is dismissed.
- (2) Subject to
further orders of the Court, the plaintiff shall pay the defendant’s costs
of the proceedings as agreed or, in
the absence of agreement, as assessed.
- (3) In the
event agreement as to answers to the common questions, the plaintiff shall file
and serve a joint answer to the questions
within 21 days of this judgment. If
there is disagreement as to the answer to the common questions, the parties
shall file and serve
their respective versions of the answers within the same
timeframe. The matter will then be listed for directions, at a date to be
fixed,
to resolve any disagreement as to the common questions.
- (4) In the
event any application is made by the parties as to costs such application(s) and
a summary of submissions in support thereof
shall be filed and served within 21
days of this judgment. In the event of such application(s), the Court will list
the matter for
directions.
ANNEXURES
Annexure
A (580 KB, pdf)
Annexure
B (1.89 MB, pdf)
Annexure
C (1.43 MB, pdf)
Annexure
D (1.05 MB, pdf)
Annexure
E (1.08 MB, pdf)
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2018/667.html
