Boyle v Yeing
[2015] WASCA 241
•1 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BOYLE -v- YEING [2015] WASCA 241
CORAM: McLURE P
BUSS JA
MURPHY JA
HEARD: 9 FEBRUARY & 7 SEPTEMBER 2015
DELIVERED : 1 DECEMBER 2015
FILE NO/S: CACV 57 of 2014
BETWEEN: P G BOYLE
A M BOYLE
AppellantsAND
JAMIE LAWRENCE YEING
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
Citation :YEING -v- PG BOYLE & AM BOYLE [2014] WADC 54
File No :CIV 3237 of 2011
Catchwords:
Negligence - Whether reasonable care taken - Whether reasonable precautions taken against the risk of fire escaping during prescribed burn - Section 5B of the Civil Liability Act 2002 (WA) - Expert evidence
Legislation:
Civil Liability Act 2002 (WA), s 5B
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants: Mr J Ley
Respondent: Mr G Hancy
Solicitors:
Appellants: Jackson McDonald
Respondent: Greenland Legal Pty Ltd
Case(s) referred to in judgment(s):
Browne v Dunn (1893) 6 R 67
Yeing v PG Boyle & AM Boyle [2014] WADC 54
McLURE P: I agree with Murphy JA.
BUSS JA: I agree with Murphy JA.
MURPHY JA:
Introduction
The appellants and the respondent are neighbouring farmers in York. On 18 May 2009, the appellants carried out a burn on certain properties which they farmed. As a consequence of the burn, a fire spread to the respondent's neighbouring property and destroyed machinery and equipment standing on the respondent's land near the boundary of the two properties. The respondent sued the appellants in negligence for damage to his machinery and equipment. Schoombee DCJ upheld the respondent's claim.[1]
[1] Yeing v PG Boyle & AM Boyle [2014] WADC 54 (primary reasons).
The appellants appeal against that decision. For the reasons which follow, the appeal should be dismissed.
Background[2]
[2] The background is taken from the unchallenged findings in the primary reasons.
The appellants (Mr and Mrs Boyle) farmed properties, including four properties known as Humphrey's Dam, Cornhill, Ambleside and George's. Cornhill and Ambleside adjoined the respondent's farm. Cornhill and Ambleside are separated from the respondent's farm by a dirt track (8 m wide) and a firebreak (2.9 m wide) on the appellants' side of the track and by a firebreak (2.1 m wide) on the respondent's side of the track. The total firebreak width is thus approximately 13 m. The boundary running between Cornhill/Ambleside and the respondent's farming property is about 1 km long.
Mr Boyle decided to burn off on 18 May 2009. As it was autumn, he was not required to obtain a permit or to notify his neighbour of his intention to burn. That day was a sunny day with temperatures ranging from 8.5 degrees Celsius in the early morning to about 23 degrees Celsius by 3.00 pm. There was a high fire danger warning for the Avon district.
Mr Boyle was an experienced farmer and was experienced in carrying out stubble burns. Farmers frequently carry out stubble burns to facilitate the subsequent farming operation on the land. Mr Boyle was also the chief bushfire control officer for the Shire of York and had held that position for 20 years. At the time of the burn in question, one of Mr Boyle's employees was Mr Peter Carroll. Mr Carroll was an Irish backpacker. He had had no experience in prescribed burns prior to arriving in Australia, but had conducted a number of stubble burns on Mr Boyle's properties, together with Mr Boyle or other farm workers, since commencing work with Mr Boyle in mid‑March 2009.
The burn on 18 May 2009 started at 9.30 am at Humphrey's Dam. It then moved to Ambleside at about 11 am, and then to Cornhill at about 12.45 pm. The burn was carried out by Mr Boyle, Mr Boyle's son, Guydon, and Mr Carroll.
The burn at Cornhill finished at about 2.30 pm.
Following this, Mr Boyle drove around part of the perimeter of the burned area on Ambleside, including the part which adjoined the respondent's property. He also instructed his son and Mr Carroll to drive around the full perimeter of the Cornhill burn. After this, the three men met and there was a discussion to the effect that all of the burning material had apparently been extinguished, save for two areas more than a kilometre away from the respondent's property which involved no risk of the fire escaping.
After this discussion, at about 2.45 pm, Mr Boyle instructed Mr Carroll to remain at Cornhill and Ambleside for an hour to patrol the burned area and to ensure that there was nothing that was still alight that could spread further. Mr Boyle then left Cornhill to carry out the burn at George's. Mr Boyle's son left to attend other farming duties. Mr Carroll remained as instructed. Mr Carroll left Cornhill and Ambleside at about 4.00 pm when he considered that the fires were 'completely out'.[3] He then went to join Mr Boyle at the burn at George's shortly after 4.00 pm.
[3] Primary reasons [8].
Shortly after Mr Carroll had left Cornhill and Ambleside, a burning ember was carried by a breeze from either Cornhill or Ambleside across to the respondent's property. The dry stubble on the respondent's land caught alight and fire engulfed the respondent's two tractors and a spreader, which were located about 30 m from the track running between the respondent's farm and Ambleside and Cornhill.
The issues at trial
It was not in dispute that:[4]
(a)the appellants owed a duty of care to the respondent;
(b)the risk of causing damage by fire was foreseeable and 'not insignificant' within the meaning of s 5B(1)(b) of the Civil Liability Act 2002 (WA) (the Act);
(c)a glowing ember was carried by the breeze from Cornhill or Ambleside onto the respondent's land. This caused the resulting fire which destroyed the respondent's machinery; and
(d)the appellants were vicariously liable for the conduct of Mr Carroll and their son.
[4] Primary reasons [12], [59].
The only issue was whether Mr Boyle and his employees took reasonable precautions against the risk of fire escaping from his farming properties during or after the prescribed burn and causing damage to the respondent's property.[5]
[5] Primary reasons [12], [71].
The judge's findings - overview
The judge considered s 5B(2) of the Act which provides:
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.
In relation to the matters referred to in s 5B(2), the judge found, in effect, that:
(a)the probability that a fire would occur if care were not taken was high;[6]
(b)the seriousness of the harm was considerable;[7]
(c)the expense and inconvenience of adopting the precaution of patrolling Cornhill/Ambleside until evening was relatively minimal;[8] and
(d)there was no social utility in the burn in that it was done to advance the appellants' private economic interests.[9]
[6] Primary reasons [64].
[7] Primary reasons [65].
[8] Primary reasons [69].
[9] Primary reasons [70].
Her Honour found that the burn itself had been carried out safely and an adequate mopping‑up operation had occurred.[10] Her Honour referred to expert evidence to the effect that 'mopping‑up' involved 'checking a strip of approximately 20 m on the ground and 100 m in the air (ie, crowns of trees) for any burning material and saturating it with water'.[11]
[10] Primary reasons [67].
[11] Primary reasons [38].
Her Honour said that the essential question was whether a reasonable person in Mr Boyle's position would have undertaken additional precautions beyond those which he did undertake, specifically in relation to the patrolling of the burn after mopping‑up.[12] The question had to be answered prospectively, and not with the benefit of hindsight, and required an objective determination.[13]
[12] Primary reasons [67], [71].
[13] Primary reasons [72] ‑ [73].
In relation to the risks posed by the burn in question, her Honour found, in effect,[14] that a fire could spread to the respondent's property which originated from:
(a)an ember in the 20 m mopping‑up zone;
(b)an ember from the burned area further into the paddocks beyond the 20 m mopping‑up zone, particularly as smouldering embers could remain in the header trails; and
(c)an ember or lighted twig from the crown of a tree.
[14] Primary reasons [94] - [95].
The judge's finding on negligence
The judge found, in effect, that:
(a)at about 2.30 pm:
(i)Mr Boyle drove around and inspected part of the perimeter of the burned area on Ambleside, including that stretch which adjoined the respondent's property;[15]
(ii)Mr Boyle's son and Mr Carroll drove around and inspected the whole perimeter of the burned area on Cornhill;
(b)the inspections involved a drive around, which took approximately 15 minutes;[16]
(c)the inspections were of areas in the 'mopped‑up' zone, and there was no indication that areas further within the burned area, beyond the 'mopped‑up' zone, were 'closely looked at at any time';[17]
(d)after the respective inspections, the three men discussed that 'it appeared' that all burning material had been put out, save for two areas more than 1 km away from the border of the respondent's property, which would not pose any risk of fire escaping;[18] and
(e)Mr Boyle instructed Mr Carroll to remain at Cornhill and Ambleside for an hour, to patrol the area of the burn and to ensure that nothing was still alight which could spread further.[19]
[15] Primary reasons [7].
[16] Primary reasons [95].
[17] Primary reasons [95].
[18] Primary reasons [7].
[19] Primary reasons [8].
Her Honour found that there was a very real risk that smouldering embers could have remained in header trails, or in the crowns of trees situated beyond the mopped‑up zone further away from the boundary with the respondent's land.[20] In relation to header trails, her Honour evidently accepted the respondent's expert evidence to the effect that stubble in header trails was more compacted; was likely to smoulder after the initial fire had passed over the land; and that such smouldering material is often reignited by a gust of fresh wind, with burning straw fragments becoming light, floating, embers.[21]
[20] Primary reasons [95].
[21] Primary reasons [37].
Her Honour found, in effect, that under 'normal circumstances', a situation involving header trails and trees distant from the boundary may not have posed a risk to adjacent property,[22] but at 3.00 pm on the day in question other factors bore upon the risk of fire escaping and causing damage to the respondent's property. In that regard:
(a)there was a wind which had freshened up to 19 km per hour;
(b)the wind was blowing in the direction of the respondent's land;
(c)the respondent's land consisted of flammable, dry stubble; and
(d)the respondent had expensive tractors near the boundary.[23]
[22] Primary reasons [95].
[23] Primary reasons [95].
Her Honour also found that the 'substantial number of trees in the burned off areas or close to those areas and within 100 m of [the respondent's] land posed an additional risk', because sparks could have landed in those trees and smouldering twigs could have been ignited later and blown onto the respondent's land.[24]
[24] Primary reasons [85].
Her Honour found that other risks, relating to visibility, also pertained to the situation at 3.00 pm when Mr Boyle and his son left the burn. Her Honour found that embers and glowing twigs are more difficult to detect in daylight,[25] and that the general smoke haze at 3.00 pm would have made it more difficult to detect fresh smoke from smouldering stubble.[26]
[25] Primary reasons [17], [37], [51], [96].
[26] Primary reasons [41].
Her Honour noted that both experts agreed that it was the duty of the most senior person to make the assessment as to when it was 'safe' to leave the burned area.[27] However, her Honour observed that the respective experts had a somewhat different understanding of when a burn could be declared 'safe'. Her Honour noted that the appellants' expert considered that a burn could be declared 'safe' once the required mopping‑up had been done on a 20 m zone from the border and in respect of all trees within 100 m of the border, and there were no visible signs of smouldering.[28] Her Honour did not accept that evidence. She preferred the evidence of the respondent's expert on the question of when a burn may be declared 'safe'.[29]
[27] Primary reasons [92].
[28] Primary reasons [46] - [47].
[29] Primary reasons [42] - [44], [46], [56], [58].
On the basis of the respondent's expert's evidence, her Honour found, in effect, that a burn should only be declared safe if the most senior and experienced person has come to the conclusion that the mopping‑up and subsequent patrolling had occurred 'to the necessary degree'.[30]
[30] Primary reasons [42], [44].
On the basis that a burn may not be declared 'safe' until the mopping‑up has been completed and subsequent patrolling had occurred to the necessary degree, her Honour found that, in substance, Mr Boyle had left the decision as to whether it was safe to leave the burn, to Mr Carroll,[31] as it was left for Mr Carroll to decide when it was safe to stop patrolling.
[31] Primary reasons [92].
However, her Honour noted that even on the appellants' expert evidence as to when a burn may be declared 'safe', there was still a 'judgment call [to be made by] the person in charge [as to] whether further patrolling of the border area should be undertaken and for what period of time'. The factors to be taken into account in deciding whether further patrolling should be undertaken included the size of the fire, the type of material that had been burned, the weather conditions and the risks to adjoining properties.[32]
[32] Primary reasons [46].
Her Honour found, in effect, that not only were there elevated risks which pertained at the time of Mr Boyle's decision to leave the burn, but that the risks would have been mitigated had Mr Boyle ensured that patrolling continued until dusk. That was because at dusk, plumes of smoke or glowing embers are more readily visible.[33] Furthermore, the risk of glowing embers or twigs becoming airborne is reduced towards dusk, when the temperature is likely to have dropped and the air is likely to have become more humid.[34]
[33] Primary reasons [37], [40], [51].
[34] Primary reasons [96].
Her Honour concluded that in light of the elevated risks in this particular case, a 'one hour patrol of the perimeter of Cornhill and Ambleside was … not sufficient'.[35]
[35] Primary reasons [95].
Her Honour accordingly found that Mr Boyle was negligent in failing to instruct Mr Carroll to patrol until dusk,[36] and that the negligence was causative of the respondent's loss.[37]
[36] Primary reasons [101.5].
[37] Primary reasons [110].
Her Honour also found that Mr Boyle was negligent in failing to remain on Cornhill and Ambleside until dusk, or in failing to instruct his son to assist Mr Carroll in patrolling the boundary until dusk.[38] Although there was no specific finding of causation with respect to those findings of negligence, causation is implicit in respect of those matters given her Honour's findings that Mr Carroll's failure to patrol until dusk was causative of the loss.
[38] Primary reasons [101.6].
Her Honour also found that Mr Boyle was negligent in certain other specific respects, including the adequacy of instructions given to Mr Carroll.[39] However, these particular findings added nothing in substance to the judge's conclusion that the appellants were liable for, in effect, failing to ensure that the patrolling was done until dusk.
[39] Primary reasons [101.1] ‑[101. 4].
The grounds of appeal
Following an amendment, there are 15 grounds of appeal. They are in substance in the following terms:
1A.The judge erred in fact by failing to find that, at about 2.45 pm on 18 May 2009, Mr Boyle decided that the burns were safe and could be left; that Mr Boyle made a declaration to that effect; and that Mr Boyle and his son, Guydon, then left the burns.
1B.The judge erred in fact in finding that when Mr Boyle and Guydon left the burns, the burns were not safe, as Mr Boyle knew or ought to have known, when that finding was against the evidence, in that:
(a)the evidence of both experts, and Mr Boyle, was that when a burn had been fully mopped up and patrolled for as long as necessary, and, in the opinion of the person in charge of the burn, there was no longer any likelihood of fire escaping, it was the responsibility of that person to declare the burn safe, whereupon it was accepted practice for all persons conducting the burn to leave the burned area;
(b)the evidence of Mr Boyle and Guydon was that, after they and Mr Carroll had patrolled the burns for the last time, Mr Boyle decided that the burns were safe, made a declaration to that effect, and he and Guydon left the burned area; and
(c)there was no evidence that the condition of the burns at about 2.45 pm on 18 May 2009 was such that it could not then be said that there was no likelihood of the fire escaping, and that it was wrong or unreasonable for Mr Boyle to decide that the burns were safe.
1.The judge erred in considering whether the burned area adjacent to the respondent's land should have been patrolled after 4.00 pm when, in the absence of a finding that the appellants failed to exercise reasonable care in the burn, in the mop‑up and in the decision to declare the burn safe to leave coupled with the patrol up to 4.00 pm, she ought to have found that the appellants had thereby discharged their duty of care to the respondent.
2.Alternatively, the judge erred in fact in finding that by 3.00 pm the wind at the site had 'increased to 19 km per hour'.
3.The judge erred in fact in finding that there were a substantial number of trees in or near the burned area, and within 100 m of the respondent's property, and that the trees posed an additional risk when:
(a)there were very few trees in the burned area; and
(b)there was no evidence that trees outside the burned area posed a risk at all.
4.The judge's findings that the risk of fire escaping and spreading onto the respondent's property was above normal and magnified were against the evidence in that:
(a)both experts had agreed that the weather conditions were suitable for conducting a controlled burn of crop stubble;
(b)even the respondent's expert considered that if the breeze had increased to 19 km per hour, the burns would still have been manageable; and
(c)the findings as to the risk posed by the trees were erroneous.
5.There was no evidence to support any of the findings by the judge that at the time Mr Boyle declared the burns safe, instructed Mr Carroll to remain, and left the burned areas:
(a)there was a very real likelihood of a smouldering ember or burning twig having been missed during the mopping‑up operation;
(b)there was a very real risk that smouldering embers could have remained in header trails or in the crowns of trees situated further away from the boundary of the respondent's property; and
(c)there was a high probability of glowing embers or twigs having been missed.
6.The judge erred in fact in finding that Mr Boyle had left Mr Carroll to decide when it was safe to leave the burned areas, when that finding was against the evidence in that:
(a)the evidence was that after the burns had gone out and been mopped‑up and patrolled, Mr Boyle declared the burn safe;
(b)the evidence was that Mr Boyle had instructed Mr Carroll to remain at the burned area for an hour and unless there were flare ups or escapes within that time, to leave the burned area and come to George's; and
(c)there was evidence that Mr Boyle had instructed Mr Carroll to remain at the burned area as a further precaution and did not leave Mr Carroll to make the decision of whether it was safe to leave the burn.
7.The judge's findings that it was doubtful that Mr Carroll understood that he had to watch the crowns of trees and look for glowing twigs, and that it was unlikely that he understood all the potential risks associated with stubble burning, were against the evidence in that:
(a)there was evidence that Mr Carroll had been involved in numerous controlled burns of stubble in the preceding two months under the direction of Mr Boyle and Mr Boyle's sons;
(b)Mr Carroll's evidence was to the effect that he had been instructed as to what to look out for when conducting a stubble burn and to make sure that he damped down any telegraph poles and tree trunks;
(c)Mr Carroll's evidence was to the effect that Mr Boyle had instructed him on 18 May 2009 to make sure that nothing was still alight and to damp down anything that looked like a potential hazard, which he did; and
(d)Mr Carroll was not asked whether he understood that it was necessary to watch the crowns of trees and to look for glowing twigs and nor was he asked whether he understood all the potential risks of stubble burning.
8.The judge erred in fact and law in finding that Mr Boyle was negligent in not properly assessing the elevated risks of fire escaping from the burned area when:
(a)the risks were not elevated above normal;
(b)there was no evidence that Mr Boyle failed to assess or adequately assess the risk of fire escaping from the burned areas;
(c)it was not put to Mr Boyle that he failed to assess or adequately assess the risk of fire escaping from the burned areas; and
(d)the respondent did not plead that the appellants were negligent in that they did not assess, adequately or at all, the elevated risks of fire escaping from the burned areas.
9.The judge erred in finding that Mr Boyle did not adequately instruct Mr Carroll with respect to the elevated risks of the fire escaping when:
(a)the risks were not elevated above normal; and
(b)even if the risk of fire escaping had been elevated, there was no evidence it was necessary to tell that to a fire watchman in Mr Carroll's position.
10.The judge erred in finding Mr Boyle negligent in not adequately instructing Mr Carroll to focus on the boundary with the respondent's property when:
(a)there was no evidence that it was necessary for Mr Carroll to focus on that boundary; and
(b)in any event, Mr Boyle's evidence was that he had instructed Mr Carroll to focus his attention on the boundary with the respondent's property.
11.The judge erred in finding that Mr Boyle was negligent in not instructing Mr Carroll on how to look for hidden embers and burning twigs in the crowns of trees:
(a)having regard to the matters referred to in ground 7;
(b)when both experts had given evidence to the effect that if Mr Boyle considered a fire watchman competent, it was not necessary for Mr Boyle specifically to instruct that fire watchman to look for hidden embers and burning twigs in crowns of trees;
(c)when the evidence of Mr Boyle and his son was that at the time of the incident they believed that Mr Carroll was competent in stubble burning;
(d)when Mr Boyle's evidence was to the effect that Mr Carroll knew how to look for hidden embers because he had been doing it all day; and
(e)when it was not put to Mr Carroll that Mr Boyle had not told him how to look for hidden embers and burning twigs in the crowns of trees.
12.The judge erred in finding Mr Boyle was negligent in failing to instruct Mr Carroll to patrol until dusk when:
(a)that finding was based entirely on the evidence of the respondent's expert (Mr Underwood);
(b)Mr Underwood's evidence was that the risk of fire escaping and causing damage would have been reduced if Mr Boyle had instructed Mr Carroll to patrol the burned areas until late afternoon or early evening, or at least until there was no sign of fresh smoke anywhere near the downwind flank of the burns;
(c)Mr Underwood said that glowing embers in the stubble would have been easier to see in the early evening;
(d)Mr Underwood gave evidence in the knowledge that after Mr Carroll had left the burned areas, an ember had been carried by the breeze onto the respondent's property and started the fire there;
(e)Mr Underwood's evidence was given with the benefit of hindsight;
(f)Mr Underwood conceded in cross‑examination that the reason he had suggested that Mr Boyle should have instructed Mr Carroll to remain longer than an hour was that if he had done so, Mr Carroll would have been at the burned area when the ember was carried across to the respondent's property; and
(g)at law, the inquiry as to whether there had been a breach of duty must not be undertaken in hindsight but looking forward to identify what a reasonable person would have done to respond to any risk of injury.
13.The judge erred in fact and in law in finding that Mr Boyle was negligent in failing to remain at the burned areas himself until dusk, or in failing to instruct his son to assist Mr Carroll in patrolling the boundary until dusk when:
(a)the finding was based on the evidence of Mr Underwood and Mr Underwood's evidence was impermissibly affected by hindsight as alleged in ground 12;
(b)Mr Underwood's evidence was that the risk of the fire escaping from the burned areas and causing damage would have been reduced if a decision could have been made to delay leaving the burned areas, and personnel had been assigned to patrol the downwind edge of the burns, staying alert for burning embers being caught up by the wind, and floating onto the respondent's property.
The appellants also filed various schedules of evidence seeking to comply with practice direction 7.4.[40] The schedules include contentions to the effect that the judge should have accepted certain evidence given by Mr Boyle, his son and Mr Carroll, and should have accepted the evidence of the appellants' expert over the respondent's expert, and consequently made alternative findings in relation to matters relevant to the mopping‑up and patrolling of the burns; Mr Boyle's decision to leave the Cornhill burn site at 3.00 pm; wind speed; the location and risks presented by trees; the risk of fire escaping; and the nature and scope of Mr Carroll's instructions and his understanding of the potential risks. The substance of these matters is considered in the context of dealing with the grounds of appeal.
[40] Appellants' schedules, 23 February 2015, 7 April 2015, 18 May 2015.
Disposition
Ground 1A begs the question of what is meant, in this context, by a declaration that a burn is 'safe' to be left. Her Honour accepted the respondent's expert evidence to the effect that a burn should only be declared 'safe' when the experienced person has reached the conclusion that the mopping‑up and the subsequent patrolling has been done to the necessary degree.
On that definition, Mr Boyle had left before the necessary patrolling had been completed because he left it to Mr Carroll to continue patrolling, and to make the assessment as to when it was safe to cease patrolling and leave the burned area unattended.
Further, even if her Honour had found that Mr Boyle had declared the burn to be 'safe', as that term was understood by the appellants' expert, it would not materially assist the appellants in this appeal. As noted earlier, even on the evidence of the appellants' expert, after a burn has been declared 'safe' there remains the question of whether, and for how long, the burned area should be patrolled. Although after the 15 minute vehicle inspections, it 'appeared' that all burning material had been put out and Mr Boyle considered it was safe for him and his son to leave, on her Honour's findings, objectively there remained the risk of embers being secreted (including in header trails further within the burned area beyond the 20 m mop‑up strip), visibility remained an issue, the wind had freshened to 19 km per hour and was blowing towards the respondent's land, and the respondent had valuable machinery located near the boundary surrounded by flammable stubble. Her Honour found that the exercise of reasonable care required Mr Carroll to continue patrolling until dusk. Ground 1A should be dismissed.
Ground 1B raises, in part, matters similar to those raised in ground 1A. To that extent, the foregoing reasons apply equally to ground 1B.
Insofar as ground 1B alleges that the judge's findings were against the evidence, the contention cannot be accepted. It was plainly open to the judge to accept the expert evidence of the respondent.
Further, pars (a) and (b) of ground 1B appear to assume that the weight of the evidence was that the 15 minute 'drive around' inspection of part of Ambleside by Mr Boyle, and of the perimeter of Cornhill by Mr Boyle's son and Mr Carroll, was a sufficient patrolling of the burned area in the circumstances of the case. That is not accurate. The respondent's expert report included evidence to the effect that there was 'a failure to put in place effective patrol and spot‑fire suppression arrangements at the Cornhill burn'.[41] The judge effectively accepted that evidence.
[41] Respondent's expert report, GB 47 ‑ 48. See also respondent's expert's cross‑examination ts 196 ‑ 197, 202, 206 ‑ 207 and 219.
Insofar as par (c) alleges that the judge should have found that there was no 'likelihood' of the fire escaping from the burned area after 3.00 pm, the particular tends to limit, and misstate, the relevant legal test. It was not in dispute that the risk of fire escaping was foreseeable and not insignificant, and that a duty of care was owed. The only issue was one of breach. The question of breach was not simply answered by reference to whether there was a 'likelihood' of the fire escaping at 3.00 pm. The judge observed, and it is not disputed in this appeal, that the essential question in the trial was whether taking into account the factors listed in s 5B(2) of the Act, and the relevant circumstances pertaining at that time, a reasonable person in Mr Boyle's position would have taken additional precautions to those that Mr Boyle took. For the reasons given by her Honour, supported as they were principally by the respondent's expert evidence, including her findings as to the difficulty in visibility that affected patrolling in the afternoon, her Honour concluded that the taking of reasonable precautions required further steps beyond those taken by Mr Boyle, including patrolling until dusk. Ground 1B should be dismissed.
As to ground 1, even if it be accepted that the burn, the mop‑up and the patrolling up to 4.00 pm were done with reasonable care, the question remained whether a reasonable response to the risk required something more. Primarily based on the respondent's expert evidence, her Honour found the exercise of reasonable care required patrolling of the burned area until dusk. Ground 1 has no merit.
As to ground 2, the judge did not find that by 3.00 pm the wind 'had increased to 19 km per hour'. The judge found that the wind had changed speed from the calm of the morning, to an increase in speed 'approaching' 19 km per hour and that by 2.45 pm the wind had 'picked up considerably'.[42] The finding was principally based upon readings taken from the York weather station.[43] The judge also relied on Ms Sprong's evidence to the effect that by late morning on the day in question, she had already observed trees blowing in the wind.[44]
[42] Primary reasons [79].
[43] Primary reasons [79].
[44] Primary reasons [78].
The readings from the York weather station provided the only objective evidence of wind speeds in York on the day in question. Mr Boyle did not have any contemporaneous note of his estimate of wind speed at the time that the burns were being undertaken. There was, however, an issue as to whether the York measurements provided a reasonable guide as to the wind speed at the location of the burns, as the York weather station was some 6 ‑ 10 km away from the burned areas. There was evidence from the respondent's expert,[45] and from a fire investigator,[46] to the effect that the weather conditions recorded at the York weather station would provide a reasonable guide to the conditions at the site of the burns.
[45] ts 191.
[46] ts 131.
The judge also said that Mr Boyle's estimate or recollection of the wind speed was likely to have been influenced, even if subconsciously, by him having been blamed for the fire.[47] Further, the judge found Mr Boyle's evidence to be unsatisfactory in relation to other aspects of the weather conditions at the time. Her Honour observed in that regard that Mr Boyle gave evidence that the temperature had dropped and that a dampness had crept into the air by the time that he had set fire to George's, whereas the recordings at the York weather station indicate that the temperature was 23 degrees Celsius at 3.00 pm, and the humidity had substantially decreased, not increased, since readings taken in the morning.[48]
[47] Primary reasons [77].
[48] Primary reasons [77].
The appellants contend that her Honour misunderstood Mr Boyle's evidence in that regard, insofar as they say that he was comparing only the conditions at the time of the burn of George's at 3.00 pm, with the conditions at the time of burning Cornhill between 12.45 pm and 2.30 pm.[49] The complaint is not well‑founded. The trial judge heard the evidence as it was being given and was best placed to appreciate its import. Nor, in any event, am I persuaded that her Honour misunderstood the tenor of Mr Boyle's evidence. The evidence appeared to be to the effect that it was damper and cooler at the time of burning George's at 3.00 pm, compared with the conditions at the time that Mr Boyle 'burned the other properties'.[50] The earlier burns started at 9.30 am (Humphrey's Dam), 11.00 am (Ambleside), and 12.45 pm (Cornhill). Mr Boyle appears to be suggesting that it became damper and cooler at 3.00 pm compared with the conditions which had pertained throughout the day, starting at 9.30 am that morning.
[49] Appellants' written submissions, pars 11 - 12, WB 17.
[50] ts 279.
Nor, in any event, was Mr Boyle's evidence compelling on this topic. His estimate was that the wind speed was 5 km per hour when the burn commenced at Humphrey's Dam;[51] and that it had increased by 1 or 2 km per hour at the start of burning Cornhill at 12.45 pm.[52] He gave no direct evidence of wind speed as at 2.45 ‑ 3.00 pm. Also, at one point, he said that he was 'not that accurate a judge of the weather' and then corrected that to say 'of the temperature'.[53]
[51] ts 258.
[52] ts 264.
[53] ts 308.
The appellants also referred to the evidence of Mr Boyle's son and Mr Carroll, however, their evidence does not provide any firm indication that wind speeds were not approaching 19 km per hour at about 3.00 pm on the day of the burn.
In all the circumstances, it was open to her Honour to find that by 2.45 pm the wind had 'picked up considerably' and was 'approaching 19 km per hour'. Ground 2 should be dismissed.
Ground 3 challenges the finding of fact that there were a 'substantial number of trees in the burned off areas or close to those areas and within 100 m of [the respondent's] land [which] posed an additional risk, because sparks from the fire could have landed in those trees and smouldering twigs could have been ignited later and blown onto [the respondent's] land'.[54]
[54] Primary reasons [85].
Ground 3 effectively makes two contentions. Ground 3(a), in effect, alleges that there were only a few trees within the burned area and they did not contribute to any elevated risk of the burn escaping on that day. Ground 3(b) alleges that there was no evidence that trees outside the burned area posed any risk at all.
As to ground 3(a), there appears from the photographic evidence to be about a dozen trees in Cornhill in a line running south to north, and then across to Ambleside.[55] There are trees in Ambleside to the east of the Cornhill boundary and to the west of the rectangular non‑burned area of Ambleside, even if one excludes the trees along the track.[56] There are other trees in the burned area of Ambleside to the north of the rectangular non‑burned area.[57] Mr Boyle accepted in cross‑examination that Ambleside was not merely open pasture, but that it contained many trees, some in the middle of the paddock.[58]
[55] GB 2 - 3.
[56] GB 2 - 4.
[57] GB 2.
[58] ts 303.
Moreover, the respondent's expert report said that:[59]
In grassland and stubble paddocks, burns conducted during late autumn generally do not require to be patrolled after early evening of the day of the burn … However, if trees are present in the stubble paddocks, patrolling should continue until dusk, as it is often only then that glowing twigs burning in the tree crowns can be observed. (emphasis added)
[59] Respondent's expert report, s 4, par (xi), GB 43.
The respondent's expert report also stated:[60]
There were occasional paddock trees present within the burn area which might have carried a smouldering twig after the burn. One tree (a mature wandoo tree, probably more than 50 years old) is growing within a few metres of the point where it can be assumed the spot fire crossed into [the respondent's] property.
[60] Respondent's expert report, sixth dot point, GB 44.
The respondent's expert described the presence of these trees as a circumstance which 'magnified' the normal risks attendant on a stubble burn on the day in question.[61]
[61] Respondent's expert report, s 5, GB 44.
The judge found that the wandoo tree was 'standing inside the south‑east corner of the burned area on Cornhill'.[62] Her Honour does not say that the wandoo tree was completely surrounded by an area which had been burned, and the photographs in the appeal books do not indicate that to be the case.[63] The photographs indicate that the wandoo tree stood at, or near, the edge of the burned area, in part facing the burned area, in the south‑eastern corner of Cornhill. Whether or not it was wholly encircled by the burned area is of no significance for present purposes. That is because the respondent's expert regarded the presence of the wandoo tree as a material circumstance which magnified the risks of an escape of fire. Her Honour evidently accepted the respondent's expert evidence in that regard.[64] Accordingly, even if the wandoo tree were not wholly encircled by the burned area, it was at, or near, the edge of the burned area.
[62] Primary reasons [83].
[63] Photographs at GB 2 ‑ 6, 30 and 35.
[64] Primary reasons [81], [83].
In light of the foregoing, whilst it may be doubted that there were a 'substantial' number of trees within the burned area that posed a relevant risk, there were, nevertheless, some. It was open to the judge to take these into account in deciding whether the appellants took reasonable precautions against the risk of fire escaping from their land and causing damage to the respondent's property. Accordingly, the substance of ground 3(a) has not been established.
As to ground 3(b), there was some ambiguity in the evidence at trial as to whether trees outside of the burned area, but within 100 m of the border of the burn, may have contributed to the risk of a 'hop over'. A 'hop over' is a new fire on the 'wrong' side or outside of the burn boundary, ignited by a burning ember blown from within the burned area across the firebreak.[65] The respondent's expert said in his report that 'every tree within 100 metres of the downwind edge of the fire' should have been carefully inspected 'so as to disclose any burning material within the tree crown or on the ground under the tree'.[66] He did not say in terms that he was only referring to trees standing within the burned area, and that he was excluding any reference to trees within 100 m on the other side of the burned area.
[65] Respondent's expert report, GB 44, footnote 2.
[66] Respondent's expert report, s 5, par (iv), GB 45.
On the other hand, there is other evidence from the respondent's expert which tends to suggest that he was referring to trees which were standing within the burned area. In particular, the respondent's expert indicated that 'mopping up' is done by:
(a)extinguishing all burning material along a strip running from the boundary of the burn, back within the burned area to a depth of 20 m; and
(b)extinguishing any ignited twigs in the crowns of trees, in respect of trees within the burned area and which are within 100 m of the boundary of the area being burned.[67]
[67] Respondent's expert report, s 4, par (x), GB 43; respondent's expert evidence in cross‑examination, ts 212 ‑ 217.
The evidence of the appellants' expert also appeared to be to that effect.[68]
[68] Appellants' expert evidence in cross‑examination, ts 372 ‑ 379.
Her Honour nevertheless appears to have inferred from the evidence of the respondent's expert and the way in which he was cross‑examined by counsel for the appellants,[69] and from the evidence of Mr Boyle and his responses in cross‑examination,[70] that trees standing outside of, but near, the burned area, which were in close proximity to the respondent's land, also posed a risk. Her Honour presumably inferred that there was a risk that embers from the header trails and trees within the burned area might become airborne and land and ignite in trees which although outside of the burned area, were in close proximity to the respondent's land, and those trees might themselves become the source of further airborne burning materials. It is unnecessary to determine whether her Honour erred in drawing that inference of fact. Even if it were an error of fact, her Honour's ultimate conclusion that further precautions were required beyond patrolling for one hour, was essentially based upon and supported by the respondent's expert evidence, including his evidence as to the risks associated with the wandoo tree and the other risks referred to in his report.[71] I would not uphold ground 3.
[69] Primary reasons [82].
[70] Primary reasons [83].
[71] Respondent's expert report, s 5, GB 44.
As to ground 4, the matters referred to in (a) and (b) of ground 4 above are irrelevant. It may have been reasonable to carry out the burn that day. That was not the question upon which the judge decided the case. It was whether reasonable precautions, additional to those taken by Mr Boyle, should have been taken after the burn and mopping‑up had been carried out. The matter in ground 4(c) deals with the findings as to trees again, and adds nothing to ground 3. Ground 4 should be dismissed.
Ground 5 refers again to Mr Boyle having declared the burn 'safe' and alleges that the judge made the findings referred to in the absence of evidence and thereby erred in law. In relation to Mr Boyle's alleged declaration, the matters discussed under grounds 1A, 1B and 1 above, are also relevant to this ground. In ground 5, the appellants also refer to evidence of both experts, said to be to the effect that if reasonable precautions were exercised in mopping‑up and patrolling the burn, it was unlikely, although not impossible, that smouldering or glowing embers would be missed.[72] The submission assumes that the nature and extent of patrolling between 3.00 pm and 4.00 pm, after the 15 minute drive around, was reasonable in the circumstances. Her Honour found that it was not, essentially on the basis of the evidence of the respondent's expert witness. In addition to the matters in the respondent's expert report, the following exchange occurred in cross‑examination of the respondent's expert:[73]
A decision could have been made to … delay leaving the burn and they could all … have been assigned to patrolling the downwind edge. But it wouldn't be necessary to do that would it, if the wind was only up at 19 kilometres per hour? - I think it would probably - I think it would have been necessary.
…
I believe that a recognition that the wind had freshened from the north‑west would have led to a decision not to leave the burn.
[72] Appellants' submissions, par 37, WB 23 - 24.
[73] ts 206 - 207.
The respondent's expert report described the difficulties in properly mopping‑up, and the potential for smouldering embers to remain a risk in connection with the escape of fire in these circumstances:[74]
[I]t is difficult to ensure a perfect black‑out of smouldering windrows of stubble to a depth of 20 metres along the whole length of a prescribed burn. Mopping‑up is a notoriously difficult job, especially given the propensity of lightly smouldering material to re‑ignite at a later date. Stubble compacted into windrows is especially tricky. It will always have some portions that smoulder rather than burning away immediately. These smouldering fuels are quite easily 'brought to life' by a strong gust of fresh wind, and when they do, they can generate airborne embers.
[74] Respondent's expert report, s 8, GB 47.
Further, the judge made unchallenged findings as to the visibility difficulties, and evidently accepted the evidence of the respondent's expert as to the risks of missing smouldering embers in header trails. Also, Mr Boyle's evidence was to the effect that Cornhill had undulating paddocks, and there was a greater risk of embers secreting themselves and flaring up later where the land was undulating.[75]
[75] ts 313 - 314.
It is true that her Honour's language has not been uniform in describing the risk of smouldering embers remaining undetected. At one point she described it as a 'very real likelihood';[76] elsewhere she has described it as 'a very real risk';[77] and even a 'high probability'.[78] Although there may be some infelicity in the language insofar as different expressions have been used, when her Honour's reasons are read as a whole, it is clear that her Honour was seeking to convey the idea that she accepted that the risk was of a sufficient magnitude in all the circumstances that the exercise of reasonable care required patrolling to be undertaken until dusk. I would dismiss ground 5.
[76] Primary reasons [88].
[77] Primary reasons [95].
[78] Primary reasons [99].
Ground 6 raises, in effect, matters of the kind covered by grounds 1A, 1B and 1. The same observations with respect to those grounds apply to this ground. It was open to her Honour to construe the effect of Mr Boyle's decision as leaving it to Mr Carroll to decide when it was safe to leave the area. Further, Mr Boyle effectively accepted that to be the case. Mr Boyle's evidence in cross‑examination included the following:
You left Mr Carroll at Cornhill to his own devices ‑ ‑ ‑?‑‑‑Yes.
---didn't you? An Irish backpacker who'd been working for you for up to two months was left to make the judgment call about whether it was safe to leave Cornhill, agreed?‑‑‑Yes.
But that was your responsibility to make that judgment call wasn't it?‑‑‑I made the decision to call - to stay - for him to stay there for one hour as an added precaution.
…
Now, all of that required, didn't it, somebody staying longer than just an hour to make sure the fire didn't escape, which you thought it might, and cause damage to [the respondent]?‑‑‑That is why we left Mr Carroll there as an added precaution.
With an arbitrary time limit of one hour?‑‑‑Yes.[79]
[79] ts 317, 320.
Insofar as Mr Boyle said that Mr Carroll remained as an 'added' precaution, the suggestion appears to be that Mr Carroll's presence for an hour went beyond what was reasonably required in the circumstances. Her Honour was not obliged to accept that proposition, and it was open to her Honour to conclude that patrolling for an hour fell short of what was reasonably required in all the circumstances.
There was also evidence from Mr Boyle's son that Mr Carroll had been left at Cornhill to ensure that the 'site was safe'.[80]
[80] ts 329.
Ground 6 should be dismissed.
Ground 7 relates to the nature and scope of Mr Carroll's understanding of the risks associated with stubble burning. The appellants refer in their schedules to evidence given by Mr Boyle, his son and Mr Carroll to the effect that Mr Carroll had previously been given intensive training in stubble burning in the preceding two months.
The first allegation in ground 7 is to the effect that the judge erred in finding that it was 'doubtful whether Mr Carroll understood that he had to watch the crowns of the trees and look for glowing twigs'.[81] The reasons given by her Honour for this finding were that in his evidence he only spoke about being told to water the trunks of trees, and that he said his task was to make sure that nothing was still alight and could spread further.[82] In this regard, Mr Carroll's evidence‑in‑chief was that on previous occasions the appellants 'would have told' him to make sure that he dampened straw or stubble that was left over and smouldering or smoking, or any telegraph poles and tree trunks.[83] In relation to this particular fire, Mr Carroll said his job 'would have been' to drive around the perimeters of the paddocks to make sure everything was damped down, including telegraph poles and tree stumps, to make sure the fire did not spread anywhere.[84] The judge's finding that Mr Carroll did not give evidence that he was instructed to, or that he did, watch the crowns of the trees and look for glowing twigs,[85] discussed below, is also relevant in this regard.
[81] Primary reasons [90].
[82] Primary reasons [90].
[83] ts 392.
[84] ts 395, 398.
[85] Primary reasons [90].
Further, Mr Boyle's evidence‑in‑chief contained very little explanation as to what instructions he gave Mr Carroll. Mr Boyle said that on some earlier occasion or occasions, he had previously instructed Mr Carroll in the ways of stubble burning and mopping‑up;[86] that he had instructed Mr Carroll to be aware of what was going on around him and to make sure that if there were any lighted sticks or things near the edge he should put them out, and that he should wet around trees and SEC power poles;[87] and that Mr Carroll had been instructed to continue to drive around the edge of the perimeter of the burn, particularly the edge towards which the wind was blowing.[88]
[86] ts 253 - 254.
[87] ts 255.
[88] ts 256.
Mr Boyle did not give evidence‑in‑chief as to any specific instructions he gave to Mr Carroll on the day of the burn in question. When it was put to Mr Boyle in cross‑examination that he did not specifically instruct Mr Carroll to focus on the boundary of Ambleside and Cornhill that was closest to the respondent's property, his response was that it had been Mr Carroll's 'focus all day', and that 'his instruction had not changed all day. This was added instruction'.[89] However, it was open to the judge to give limited weight to that evidence given that Mr Boyle had not previously explained that he had provided any such instruction to Mr Carroll.
[89] ts 317.
Further, the judge made the following findings of fact:
(a)Mr Carroll had not been instructed as to the elevated risks that pertained to the burn on that particular day;[90]
(b)Mr Carroll had not noticed the machinery on the respondent's property;[91]
(c)Mr Carroll did not notice the dry stubble on the respondent's property;[92]
(d)Mr Carroll did not realise how important it was to look for what was situated on the neighbouring properties;[93] and
(e)Mr Carroll did not give evidence that he was instructed to, or that he did, watch for the crowns of trees and look for burning twigs.[94]
[90] Primary reasons [89].
[91] Primary reasons [89].
[92] Primary reasons [89]; see also ts 399 - 400.
[93] Primary reasons [91].
[94] Primary reasons [90].
In relation to the finding in (a) of the preceding paragraph, there is no challenge to the finding that Mr Carroll was not so instructed. Rather, the appellants contend in ground 9 that there were no elevated risks and that even if there were, Mr Carroll was not required to be instructed in relation to them. For the reasons given below in relation to ground 9, it was open to her Honour to find that the risks were elevated, or magnified, on the day in question. Also, it was open to her Honour to find that reasonable care required Mr Carroll to be given specific instructions in that regard on the day in question, given the high probability that harm would occur if appropriate care was not taken, and that the escape of fire would likely cause damage to expensive farm machinery,[95] in circumstances where Mr Carroll had not noticed the flammable, dry stubble on the respondent's property and the nearby machinery. The finding in (b) is not challenged. Unlike Mr Carroll, Mr Boyle had himself noticed the machinery nearby earlier that day.[96] The findings in (c) and (d) of the preceding paragraph are not challenged. Also, in this context, it is to be noted that the appellants' expert accepted that the presence of dry stubble on the respondent's land and valuable machinery in close proximity to the border of the burned area were relevant factors in determining the nature and extent of patrolling to be undertaken.[97] As to the finding referred to in (e) of the preceding paragraph, by ground 7(d) the appellants allege that Mr Carroll was not asked about those matters, but there is no suggestion that there was any breach of the rule in Browne v Dunn,[98] and there was evidence from Mr Boyle that he did not give any specific advice to Mr Carroll as to how and where to look for hidden embers.[99]
[95] Primary reasons [64] - [65].
[96] ts 281.
[97] ts 374 - 378.
[98] Browne v Dunn (1893) 6 R 67.
[99] Primary reasons [19].
When regard is had to the matters in [76] ‑ [77] above, notwithstanding the evidence referred to by the appellants, I would not conclude that the judge erred in finding that it was doubtful that Mr Carroll understood that he had to watch the crowns of trees and look for glowing twigs, and that it was unlikely that he had understood all of the potential risks associated with stubble burning. I would dismiss ground 7. In any event, even if those particular findings of fact were against the weight of the evidence, success on ground 7 could not overcome the principal findings of negligence in relation to the failure to ensure that patrolling was done until dusk.[100]
[100] Primary reasons [101.2], [101.3], [101.5], [101.6].
In relation to ground 8, the appellants say that this is not a ground to the effect that the findings were against the weight of the evidence.[101] In that event, it is not clear why ground 8 includes the allegation that the judge erred in fact in finding that Mr Boyle was negligent in not properly assessing the elevated risks of the fire escaping from the burned area. In their written submissions, the appellants contend that if ground 5 is upheld, the finding challenged by ground 8 cannot be sustained.[102] For the reasons given earlier, ground 5 should be dismissed. The appellants further contend that even if ground 5 were not upheld, the finding should not be permitted to stand as there was 'simply no evidence' that Mr Boyle failed properly to assess the risk of the fire escaping. The appellants also contend that it was not put to Mr Boyle that he had failed properly to assess the risk, and the respondent had not pleaded that Mr Boyle was negligent in that regard.
[101] Schedule dated 23 February 2015, par 15.
[102] Appellants' submissions, par 46.
In my view, it was necessarily implicit in the allegations pleaded in pars 12(d), (e) and (f) of the statement of claim[103] that Mr Boyle had failed to assess adequately the risk of fire escaping from the burned areas. Further, as noted earlier, there was no dispute at trial that the essential issue was whether the appellants had taken reasonable precautions against the risk of fire escaping from the appellants' farm and onto the respondent's farm.[104] It was necessarily implicit in determining that issue to consider whether Mr Boyle had properly assessed the risk when he left Mr Carroll to patrol the burn for an hour.
[103] BB 32 - 33.
[104] Primary reasons [12], [71].
Further, the respondent's expert evidence dealt, in substance, with the question of whether Mr Boyle had properly assessed the risks. The respondent's expert noted Mr Boyle's experience, but continued:[105]
[105] Respondent's expert report, s 5, GB 44.
However, every prescribed burn has some risks, and escapes from stubble burns in the wheatbelt occur quite regularly. In the situation under review, the normal risks were magnified by the following circumstances:
•Although conditions were calm when the burn commenced, the wind freshened during the afternoon and was blowing from the north‑west, making it likely that there would be a problem on the downwind flank of the burn in the event of a re‑ignition or a hop‑over.
•Valuable farm machinery was located close to the south‑eastern (downwind) edge of the burn and was standing within [sic] flammable fuels and nobody was in attendance to protect it.
•Some of the stubble was standing as knee‑high straw stalks, but there was also stubble material in windrows ('header trails'). This material is slightly compacted and is usually slightly damper than the standing stalks, and would be likely to smoulder‑on after the initial running fire. This smouldering material is often re‑ignited by a gust of fresh wind.
•The stubble would have contained straw fragments that could become light, floating embers.
•The patrolman had a big job, with several kilometres of edge to patrol. …
•There were occasional paddock trees present within the burned area which might have carried a smouldering twig after the burn. One tree (a mature wandoo tree, probably more than 50 years old) is growing within a few metres of the point where it can be assumed the spot fire crossed into [the respondent's] property.
•I believe there was a general smoke haze across the paddocks coming from stubble burns in the district that day, or from material smouldering within the Cornhill burn. This would have made it harder to detect fresh smoke from a re‑ignition.
Also, the cross‑examination of Mr Boyle was, relevantly, to the effect that had Mr Boyle properly assessed the risks on the day in question, he would not have left it to Mr Carroll to decide whether and when it was safe to leave the burn, and would have, in effect, ensured that the burn was patrolled until dusk.[106]
[106] ts 293 - 321.
For these reasons, grounds 8(b), (c) and (d) have no merit. The matter in ground 8(a) forms the subject of ground 9(a), and is discussed below.
In relation to ground 9(a), the respondent's expert said that the normal risks associated with a stubble burn in the wheat belt were 'magnified' in the particular circumstances of this case.[107] It was open to her Honour to accept that evidence. Her Honour described the risks as 'elevated', but there is no material difference between the respondent's expert's description of the risks being 'magnified' and her Honour's description of the relevant risks being 'elevated'.
[107] Respondent's expert report, s 5, GB 44.
As to ground 9(b), as noted in relation to ground 7, it was open to her Honour to conclude that the exercise of reasonable care required that Mr Carroll be specifically instructed as to the elevated risks. However, even if there were any error as alleged in ground 9(b), it would not overcome the findings that the appellants were negligent in failing to ensure that patrolling continued until dusk. Ground 9 should be dismissed.
In relation to ground 10, the respondent's expert evidence included evidence to the effect that the patrolman should have been instructed 'to keep a very close eye on the south‑eastern edge of the burn'.[108] Further, as noted in relation to ground 7 in [75] above, Mr Boyle's evidence on this topic was less than compelling. In any event, again, even if ground 10 were established, it would not overcome the findings that the appellants were negligent in failing to have the burned area patrolled until dusk.
[108] Respondent's expert report, s 8, GB 47.
In relation to ground 11, insofar as this ground effectively repeats grounds 5 and 7, it should be dismissed for the reasons given in relation to those grounds. Insofar as it relies upon the matters in ground 9, it should be dismissed for the reasons given in relation to that ground. Again, however, any success on this ground would not affect the ultimate findings on liability with respect to the failure to patrol until dusk.
In relation to ground 12, the effect of this ground is that the judge should not have accepted the evidence of the respondent's expert (Mr Underwood). Her Honour noted in relation to his evidence:[109]
I accept the evidence of Mr Underwood, as there is no reason not to. He answered questions in a straightforward manner and was prepared to make concessions. His opinions were not seriously challenged in cross‑examination. It was not put to him that the standard of having a patrol continue until dusk was too high and did not accord with the usual practices of the average competent and experienced farmer.
[109] Primary reasons [43].
Moreover, it is apparent from Mr Underwood's evidence that he was considering the matter in prospect and not retrospect. For example, Mr Underwood gave evidence of what prospectively should have been done on the afternoon of 18 May 2009. He said in his report:[110]
In my view, the patrolling of this burn should have been extended until late afternoon when a drop in temperature and increased humidity would have reduced the risk of a flare‑up and a hop‑over. The need for the extended patrol should, in my view, have been emphasised by knowledge of the dry stubble in the [respondent's] paddock, and observation of the increased wind from the north‑west. This should have triggered a change in strategy. (emphasis added)
[110] Respondent's expert report, GB 47.
Ground 12 should be dismissed.
Ground 13 covers the same territory as ground 12, with the added contention that her Honour should have preferred the evidence of the appellants' expert over that of the respondent's expert. It was open to her Honour to prefer the evidence of the respondent's expert. Ground 13 should be dismissed.
Conclusion
The appeal should be dismissed.
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