Brechin v Shire of Brookton

[2002] WASC 228

BRECHIN & ORS -v- SHIRE OF BROOKTON [2002] WASC 228

Link to Appeal :

[2003] WASCA 240

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 228
Case No:	CIV:1823/1998	Heard:	21-23, 26-30 AUGUST, 2 & 3 SEPTEMBER 2002
Coram:	MASTER SANDERSON	Delivered:	25/09/02
No of pages:	31	Judgment Part:	1 of 1
Result:	Defendant liable for plaintiffs' loss
Category:	B
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Parties:	CYRIL BRUCE BRECHIN WATER CORPORATION WESTERN POWER CORPORATION AND OTHERS SHIRE OF BROOKTON
Catchwords:	Negligence Escape of fire from defendant's premises causing damage to adjourning property Liability for escape of fire Turns on own facts
Legislation:	Nil
Case References:	Casley-Smith v F S Evans & Sons Pty Ltd (1989) Aust Torts Rep 80-227 Hughes v Lord Advocate [1963] AC 837 Milirrpum Nabalco Pty Ltd (1970) 17 FLR 141 The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 The Wagon Mound (No 2) [1967] 1 AC 617 Anderson v Morris Wools Pty Ltd [1965] QdR 65 Brodie v Singleton Shire Council (2001) 75 ALJR 992 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Cohen v City of Perth [2000] WASC 306 Goldman v Hargrave (1996) 115 CLR 458 Hargrave v Goldman (1963) 110 CLR 40 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 O'Connor v S P Bray Ltd (1937) 56 CLR 464 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (Wagon Mound 2) [1967] 1 AC 617 Pyranees Shire Council v Day (1998) 192 CLR 330 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : BRECHIN & ORS -v- SHIRE OF BROOKTON [2002] WASC 228 CORAM : MASTER SANDERSON HEARD : 21-23, 26-30 AUGUST, 2 & 3 SEPTEMBER 2002 DELIVERED : 25 SEPTEMBER 2002 FILE NO/S : CIV 1823 of 1998 BETWEEN : CYRIL BRUCE BRECHIN

WATER CORPORATION
WESTERN POWER CORPORATION AND OTHERS
Plaintiffs

AND

SHIRE OF BROOKTON
Defendant

Catchwords:

Negligence - Escape of fire from defendant's premises causing damage to adjourning property - Liability for escape of fire - Turns on own facts

Legislation:

Nil

Result:

Defendant liable for plaintiffs' loss

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Category: B

Representation:

Counsel:

Plaintiffs : Mr K J Martin QC & Mr P D Quinlan
Defendant : Mr G R Hancy & Mr C J Sweet

Solicitors:

Plaintiffs : Talbot & Olivier
Defendant : Minter Ellison

Case(s) referred to in judgment(s):

Casley-Smith v F S Evans & Sons Pty Ltd (1989) Aust Torts Rep 80-227
Hughes v Lord Advocate [1963] AC 837
Milirrpum Nabalco Pty Ltd (1970) 17 FLR 141
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424
The Wagon Mound (No 2) [1967] 1 AC 617

Case(s) also cited:

Anderson v Morris Wools Pty Ltd [1965] QdR 65
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Cohen v City of Perth [2000] WASC 306
Goldman v Hargrave (1996) 115 CLR 458
Hargrave v Goldman (1963) 110 CLR 40
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
O'Connor v S P Bray Ltd (1937) 56 CLR 464
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (Wagon Mound 2) [1967] 1 AC 617
Pyranees Shire Council v Day (1998) 192 CLR 330
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
Wyong Shire Council v Shirt (1980) 146 CLR 40

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1 MASTER SANDERSON: The Great Fire of London broke out in the early hours of the morning of 2 September 1666. The London Gazette of 3 September had no difficulty in placing the origins of the fire in a bakery in Pudding Lane near New Fish Street. On 15 December 1997 a fire broke out in the Shire of Brookton. The result was the destruction of infrastructure and damage to a large number of farms in the Brookton-Pingelly area. Unlike the Great Fire of London, the origins of the Brookton-Pingelly bushfire are not the subject of general agreement. This case is primarily concerned with the circumstances in which the fire started and who, if anyone, is responsible for the loss and damage the fire caused.

2 In general terms, the plaintiffs say that the fire started at the waste disposal site - or to use the colloquial term employed throughout the hearing at the "tip" - operated by the defendant. It is alleged by the plaintiffs that the defendant negligently managed the tip with the result that a fire started on the tip, spread through the reserve on which the tip was located and eventually set alight adjoining farmland. The defendant for its part raised a number of defences. First it denies that the fire started on the tip. It further denied that it owed the plaintiffs any duty of care, or that the fire and the loss and damage caused by it were foreseeable. Further, it alleges that, in any event, it did all that was necessary to discharge any duty of care it may have owed the plaintiffs.

3 At issue in these proceedings was the question of liability only. On 28 May 1999 it was ordered that those issues raised by pars 1 to 84 of the statement of claim and pars 1 to 84 of the defence be tried separately. Further, just prior to the hearing, it was conceded by the defendant that each of the plaintiffs had suffered damage and it was therefore not necessary to prove damage as an element of the cause of action. It is perhaps worthy of note that this concession was made very late in the piece and well after the matter had been entered for hearing.

Position and orientation of the waste disposal site

4 The town of Brookton lies just over 100 kms south-east of Perth. The town of Pingelly is to the south-sou'east of Brookton. The tip is located on a property more particularly described as Avon Location 7857 Reserve 24588: see exhibit "P2". The Titles Office extract shows the area of the reserve as being just under 30 acres. It is rectangular in shape with the long sides of the rectangle running north-south. The land itself abuts the southern side of the Brookton Highway and it is located approximately 3 kms to the west of the Brookton town site. In November

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1956 the reserve was set aside for public utility purposes: see exhibit "P4". In 1973 a change of purpose was gazetted and the reserve moved from being "Public Utility" to a "Rubbish Disposal Site": see exhibit "P5". On 17 June 1974 the defendant wrote to the Commissioner for Public Health seeking approval to operate the reserve as a rubbish disposal site under s 119 of the Health Act: see exhibit "P6". On 18 July 1974 a health surveyor, Mr R H Guthrie, after an inspection of the site, recommended to the Chief Health Surveyor that approval be granted for use of the reserve as a rubbish disposal site: see exhibit "P6". On 6 August 1974 the Governor in Council approved the use of the reserve for the disposal of rubbish under the provisions of s 119 of the Health Act. Thereafter the reserve was used and is still used for the disposal of rubbish in the Brookton area.

5 Appearing as exhibit "P45" is a certified copy of DOLA aerial photograph taken on 8 January 1997. This photograph shows that entry to the reserve is off the Brookton Highway. A gravel road then travels almost due south for some distance before it swings slightly to the east and then continues south. As at December 1997 the actual tipping area was located just to the west of the centre of the reserve. A person wishing to dispose of refuse would proceed almost to the centre of the reserve heading south. They would then turn to the right and travel north for some distance over what was referred to throughout the evidence as the "tip pad". This was in fact an area of rubbish which had been covered with gravel and compacted to provide a solid surface over which vehicles could travel. To actually dispose of refuse, it was necessary to travel north along this tip pad for some distance to arrive at the "active face" of the tip. This was the area where rubbish was being deposited but had not yet been covered. Once an individual had disposed of the load of refuse they would proceed back along the tip pad heading south before turning hard left onto the gravel road and proceeding north out of the reserve.

6 On either side of the tip pad running roughly north and south were mounds of earth referred to throughout the trial as "bunds". These bunds defined the edge of the tip pad itself. Beyond the western bund the land fell away down to a wooded area which was covered with wandoo trees. Some distance further to the west there was a fire break and then the bush continued to the western boundary of the reserve. To the south of the tip pad there was a narrow area of bush and a fire break running roughly east to west. Beyond this firebreak there was a further area of bush of about 200 metres. Beyond that bush to the south there was farming land owned by Mr and Mrs Hall, two of the plaintiffs in these proceedings. Throughout the hearing this property to the south was referred to as

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"Hall's paddock". As at December 1997 this paddock did not contain a crop. It had been sown with clover which, by mid-December, had died off and was crisp and dry.

7 The geography of the reserve and the position of the tip, while central to the resolution of the issue between the parties, was not the subject of any dispute between the parties.

The pleaded case

8 The first 58 paragraphs of the statement of claim identify the plaintiffs. The first two plaintiffs are statutory corporations, both of whom lost infrastructure in the fire. The remaining plaintiffs are farmers whose properties lie in and around the Brookton-Pingelly area and who, it is admitted, suffered loss as a consequence of the fire. The defendant is identified as a body corporate incorporated pursuant to the provisions of the relevant Local Government Act. The plaintiffs plead that the defendant was at all material times the owner and occupier of the reserve and that it operated on the reserve a rubbish tip. Remarkably enough, by its defence, the defendant did not admit the identity and landholding of any of the plaintiffs, although these matters were not in issue at trial. The defendant did admit its own status and also admitted occupation of the rubbish tip site. However, it denied that it operated a tip on the site. Again, at trial this was not an issue between the parties.

9 By par 62 through to 65 of the statement of claim, the plaintiffs pleaded that the defendant was the holder of a licence to operate the tip, this licence being issued by the Department of Environmental Protection under the provisions of the Environmental Protection Act. These paragraphs lead later in the statement of claim to a cause of action for breach of statutory duty. Paragraphs 62 through to 65 of the defence do not admit the issue of a licence, but acknowledge that the Department of Environmental Protection "purported" to issue a licence. It is not entirely clear reading par 60 through to 65 of the defence quite what is said against the plaintiffs' plea of the licensing regime and the issue of the licence by the Department of Environmental Protection. In fact, the defendant's position on this issue did not become entirely clear until counsel's closing submissions. Suffice it to say, the defendant denied any breach of its statutory duty.

10 Paragraph 66 of the re-amended statement of claim refers to the defendant's obligations under s 25B of the Bush Fires Act. This paragraph set up a cause of action for breach of statutory duty in relation to the Bush

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Fires Act. At the commencement of the hearing, counsel for the plaintiffs indicated he would not press this matter.

11 By par 69 of the statement of claim the plaintiff pleads the weather conditions on 15 December 1997. In summary, it is said that it was hot and dry and there was an extreme fire hazard. By par 70 it is said that fire escaped from the reserve into Hall's paddock and thereafter spread throughout the Brookton-Pingelly district. In particular, by par 70(b) the plaintiffs say that the fire escaped by one of three methods. Either it burnt along flammable material from the tip site south through the reserve onto Hall's paddock, or burning flammable material travelled through the air from the tip site to Hall's paddock, or sparks and embers travelled through the air from the tip site to Hall's paddock. In the latter two cases it was said the airborne burning material resulted in a secondary fire.

12 The defendant, by par 69 of the defence effectively admits the weather conditions. By par 70 the defendant denies that the fire started at the tip and says rather that it started in Hall's paddock. Furthermore, it is specifically pleaded that burning flammable material or sparks and embers did not travel through the air from the tip to Hall's paddock. Not surprisingly, the defence does not offer any explanation as to how and why the fire started in Hall's paddock.

13 By pars 71 and 72 the plaintiffs plead that the defendant was aware, or should have been aware, of the existence of a fire at the tip on the morning of 15 December 1997 and that the presence of fires at the tip was common place prior to that date. Both of these paragraphs are denied by the defendant.

14 Paragraph 72A pleads that the defendant owed the plaintiffs a duty of care. Inter alia, this duty is pleaded to include a duty to instruct employees not to permit fires to continue burning at the tip unless it was completely safe (par 72A(f)) and to instruct its employees to properly control and extinguish any non-authorised fires at the tip (par 72A(g)). Paragraph 72B pleads non-delegable duties in identical terms to those duties pleaded in par 72A. By pars 72A and 72B of the defence, the defendant does not admit, although it does not deny, the equivalent paragraphs of the plaintiffs' statement of claim.

15 By par 73 of the statement of claim the plaintiffs plead the defendant breached its duty of care and particulars of negligence are provided. Of significance are particulars (II):

"The defendant failed to instruct its' servants or agents;

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(a) not to leave the Landfill Site if there was a fire burning or smouldering at the Landfill Site;

(b) to extinguish all fires at the Landfill Site before leaving the Landfill Site;

(c) to immediately obtain assistance to extinguish a fire burning at the Landfill Site if they needed assistance;

(d) to inform the Shire Clerk and the Fire Control Officer of any fire burning or smouldering at the Landfill Site."

16 The defendant denies par 73 of the statement of claim and goes further and pleads that:

"(a) there were three fire breaks located to the south of a pad ('the waste disposal pad') that was used as a waste disposal area at the defendant's tip that were respectively 6 m, 3.5 m and 3.5 m wide;

(b) the Shire had available up to three water trucks;

(c) a sign with the words 'Lighting of Fires Prohibited' was erected at the entrance to the waste disposal pad at the defendant's tip;

(d) waste was pushed over a tip face and the tip face formed the function of a defined trench area enclosed by earth bunds or perimeter wire fence in containing waste within the tip."

17 By par 74 of the statement of claim the plaintiffs plead that the fire at the tip was lit by an employee of the defendant. As the case developed this was not supported by the evidence and I need say nothing further.

18 Paragraph 75 pleads that the fire started as a result of spontaneous combustion of grain at the tip. Paragraphs 75(b) and 75(c) provide specifics of this allegation. By par 75(d) it is alleged by the plaintiffs that the failure of the defendant to take steps to deal with possible spontaneous combustion at the tip amounts to a breach of duty. It is difficult to see that this paragraph adds much to the already pleaded case.

19 Paragraph 76 pleads certain matters in relation to two employees of the defendant - a Mr Kim Alfred Watts ("Watts") and Mr Geoffrey Robert Forward ("Forward"). In particular, par 76(a)(v) pleads that Watts "left

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the Landfill Site whilst the fire was still burning or smouldering"; in relation to Forward it is pleaded that he did not respond in a timely way when advised of a fire on the tip site. The plaintiffs plead that the defendant is vicariously liable for the acts and omissions of their employees. Paragraph 76 is denied by the re-amended defence.

20 By par 77 through to 80 the plaintiffs set up their cause of action based on breach of statutory duty. Without going through these paragraphs in detail it is enough if I say that the plaintiffs allege that the defendant failed to comply with the terms of its licence issued by the Department of Environmental Protection ("DEP"). The defendant, for its part, denies that it was in breach of the licence conditions and further denies that a cause of action based in breach of statutory duty is open to the plaintiffs.

21 By par 81 through to 85 the plaintiffs raise a cause of action for breach of statutory duty related to the Bush Fires Act. As I have already indicated, this was not pursued at trial.

22 It must be said that on any fair reading of the pleadings the plaintiffs' case is fully and comprehensively articulated and the defendant knew the case it had to meet. It was not suggested otherwise by the defendant.

Witnesses

23 It is convenient at this point to identify the important witnesses who gave evidence in these proceedings. Debra Jane Archdeacon ("Ms Archdeacon") was employed by the DEP between March 1996 and 7 January 2000. At all relevant times she was an environmental officer with the Waste Management Division Landfill Section of DEP. Part of her duties involved inspecting and reporting on approximately 25 landfill sites which were under the control of local government councils in the south-west of the State and two landfill sites in the metropolitan area. Ms Archdeacon holds a Bachelor of Science degree from Murdoch University majoring in Environmental Science. At all material times the Acting Director of the Waste Management Division of DEP was Mr Cameron Schuster ("Mr Schuster"). A number of the letters to which I will refer were signed by Mr Schuster but were in fact drafted by Ms Archdeacon.

24 Ms Archdeacon was one of a number of witnesses called by the plaintiffs. Apart from referring to the evidence of a meteorologist, Glenn William Cook ("Cook"), and the evidence of Colin James Butcher

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("Butcher"), the first person to see the fire and notify the defendant, it is unnecessary for me to examine in any detail the evidence of any other of the plaintiffs' witnesses apart from expert witnesses. That is not to suggest that their evidence was not relevant. A number of witnesses gave evidence about the condition of the tip some time prior to the commencement of the fire. Given the conclusions that I have reached about the way the fire started, I have not needed to deal with these matters at all. The plaintiff led other evidence, it seemed to me, either to forestall any suggestion that it had not presented a complete case or because it was not sure how the defendant's case would develop. In my view, each one of the plaintiffs' witnesses were properly called and their evidence was a necessary component of the plaintiffs' case.

25 The plaintiffs called three witnesses whose evidence was adduced on the basis that it was the opinion of an expert. These witnesses were Detective Constable Christiaan de Bruin ("de Bruin"), Maurice Ernest Tong ("Tong") and Ralph Douglas Smith ("Smith"). The plaintiffs sought to lead the evidence of these three witnesses on the basis that they were experts in the area of bush fires, their origins and behaviour. Counsel for the defendant objected to the evidence of all three of the witnesses. Counsel submitted that there was no organised body of knowledge in relation to fires generally and bush fires in particular in which any individual could gain an expertise. Second, it was said that even if such a body of knowledge existed, these three witnesses would not qualify as experts. In order to deal with this objection, all three witnesses were called and counsel for the plaintiffs led evidence as to the witnesses' experience and qualifications. Each witness was cross-examined on these matters. At the conclusion of this part of the evidence I indicated that I was satisfied that each witness was a properly qualified expert and could offer opinion evidence. I indicated to the parties that I would give more detailed reasons for that conclusion at a later date. These are those reasons.

26 The basis upon which expert evidence can be received was considered by Blackburne J in Milirrpum Nabalco Pty Ltd (197o) 17 FLR 141 where his Honour said (at 160):

"In such a matter, it seems to me, there can be no precise rules. The court is expected to rule on the qualifications of an expert witness, relying partly on what the expert himself explains, and partly what is assumed, though seldom expressed, namely that there exists a general framework of discourse in which it is possible for the court, the expert and all men, according to their

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degrees of education, to understand each other. Ex hypothesi this does not extend to the interior scope of the subject which the expert professes. But it is assumed that the judge can sufficiently grasp the nature of the expert's field of knowledge, relate it to his own general knowledge, and thus decide whether the expert has sufficient experience of a particular matter to make his evidence admissible. The process involves an exercise of personal judgment on the part of the judge, for which authority provides little help. I accept with respect what Menzies J said in Clark v Ryan (1960) 103 CLR 486 at 503, that it 'is very much a question of fact' but it seems to me a question of fact of a particular kind, not unlike the question whether a judge may take judicial notice of some matter."

27 All three of the witnesses had slightly different qualifications. Rather than go through the qualifications of each, it will be enough if I deal just with Tong. The courses successfully completed by Tong include the WA Police Advanced Detective Training School, from which he graduated Dux in 1980, a National Arson Investigation Course run by the Tasmanian Police Academy and completed in December 1986, a Fire and Arson Investigation Course run at the National Fire Academy, National Emergency Training Centre, Emmitsburg, Maryland in the United States. This course was completed in 1988. Also in that year, Tong undertook the Advanced Arson for Profit Course conducted by the Federal Bureau of Alcohol Tobacco and Firearms. This course was held at the Federal Law Enforcement Training Centre, Glynco, Georgia in the United States. Tong has also completed Certificate IV in Fire Scene Investigation run by the Northern Territory Fire and Rescue Service. Tong has also completed the Scientific Content and Analysis Course conducted by the Laboratory for Scientific Interrogation at Phoenix, Arizona. In 1988 Tong was awarded a Churchill Fellowship to study fire investigation practices in the United States of America, Canada and England. In terms of his practical experience he was a member of the WA Police Force between 1972 and 1992. From 1985 he conducted fire investigations full time, including bush fires or wild fires. He was the officer in charge of the WA Police Arson Squad from 1986 to 1991. From 1991 he has been working in the private sector investigating fires.

28 This is just a snapshot of the qualifications and experience of this witness. It was largely mirrored by the other witnesses. Each in his evidence made it plain that extensive studies had been undertaken by various bodies as to the way in which fires start, their behaviour and how they are spread. Having listened to the evidence I was left in no doubt

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that there was what might be called an organised body of knowledge with respect to bush fires. It is clearly not the case that after a bush fire, it is possible by making detailed measurements with specific instruments, to determine where a fire started and precisely how it spread. But it is also clear that fires behave in particular ways. Certain fires have certain characteristics and by examining a scene after a fire it is possible to ascertain where it started and how it developed.

29 On this basis I was satisfied that all three witnesses were properly qualified to give expert evidence. It was on this basis that I allowed their witness statements to be tendered.

30 Having said all of that, there were only two areas in which the experts were of assistance. The first was sighting the ignition point of the fire. Given the direct evidence of what was observed particularly by one of the defendant's employees, there was not, in my view, any real doubt as to where the fire started. However, the evidence of the experts really removed any doubt there might have been.

31 The second area where their evidence was relevant was in relation to spotting. Again I will deal with this evidence later in these reasons. While their evidence on this point was valuable, it was no more than consistent with evidence given by other witnesses. It appeared to be accepted by everyone questioned on the subject that there was a propensity for bush fires to jump ahead, or to "spot". This phenomenon was frequently observed and worked in this way. A fire burns along a front. It moves in the direction of the prevailing wind. Thus if the wind is from the north, the fire will by and large move south. As the fire burns, it throws up into the air sparks or embers, or perhaps burning leaves which can be, and frequently are, caught by the wind. The wind then carries this burning material forward of the fire to areas not yet on fire. This can then lead to spot fires or, what the experts termed, secondary fires. The distance that fires might spot depend, upon many factors - the strength of the wind and the nature of the material being burnt are only two, but two of the most important factors which influence the extent of the spotting.

32 There was one further witness called by the plaintiffs who was of prime importance to their case. Watts was at all material times an employee of the defendant. He was at the tip prior to the start of the fire and he was one of the first on the scene after the fire was established. As will become apparent, his evidence was crucial.

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33 A number of witnesses were called by the defendant and the evidence of each was important. Ian Neville Curley ("Curley") was, at all material times, the Chief Executive Officer of the defendant. He was responsible for the day-to-day administration of the defendant's activities. Neil Francis Flood ("Flood") was, at all material times, the Environmental Health Officer. He was responsible in part for the conduct of the operations of the tip. I say in part because he was employed as a health officer and as such he gave advice and directions with respect to the operations of the tip. He was not, however, responsible for the operation of the tip in its entirety. For instance, measures undertaken to control fires at the tip, such as prescribed burns and spraying for weeds, were not within his province. That was left to the general administration of the defendant.

34 Forward was the Works Supervisor of the defendant. It was his duty under the control of the Chief Executive Officer to carry out the day-to-day operations of the defendant. As such, he was responsible for issuing instructions to employees such as Watts to undertake certain activities, including work at the tip. Included among his employees, aside from Watts, was Robert Samuel Bowron ("Bowron"). Bowron, like Watts, was employed by the defendant to carry out work in and around the Shire. Bowron played only a limited role in the events the subject of this action.

35 Finally, there is Leslie Robert Eyre ("Eyre"). Eyre is an elected member of the Council of the defendant and was also at all relevant times the defendant's Chief Fire Officer. He is not a full-time professional Council officer - he runs the newsagency in the town of Brookton.

36 In my view, each of the witnesses who gave evidence in these proceedings did so in an honest and forthright manner. From time to time the memories of the defendant's witnesses, particularly Messrs Curley, Flood and Eyre, seemed to fail them. Be that as it may, in no sense did they or any of the other witnesses attempt to offer misleading or evasive evidence. In any event, this was not the case which turned upon the credibility of one or other of the witnesses called by the plaintiffs or the defendant. In the end, the position was relatively simple and straightforward.

Causes of the fire of 15 December 1997

37 Having heard all of the evidence I am satisfied on the balance of probabilities that the fire occurred in this way.

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38 The weather conditions on 15 December were hot and dry and a strong wind was blowing from the north. Around mid-morning, Watts drove a front-end loader out to the tip site to undertake certain work. Sometime between 11 and 11.15am he noticed a fire in grain which had been dumped on the tip site. He deposited two bucket loads of gravel onto this fire and it appeared to be extinguished. At the same time he noticed smoke rising from what he assumed, probably quite correctly, was smouldering grain. He took no action to extinguish the smouldering grain. Instead he drove the front-end loader back to the Brookton town site where he undertook other tasks until he arrived back at the Shire depot around 12pm to eat his lunch.

39 Some time after Watts' departure from the tip site the smouldering grain set fire to combustible material on the western bund of the tip pad. Fanned by the strong winds, the fire spread to the south and to the west towards the firebreak on the western side of the tip reserve. It leapt this firebreak and commenced to burn to the south and west of the reserve, all the while gathering intensity.

40 Watts and Forward arrived at the tip site some time after 12.45pm to find the bush on the western side of the western firebreak well alight. It was burning on a 60m front which was 20m wide. With the aid of the Shire's fire tanker, this blaze was brought under control. Just as the fire was brought under control, smoke was seen rising from Hall's paddock. The fire had not, at this stage, burnt through the bush to the south of the tip reserve. Rather, a spark, embers or a firebrand had been carried through the air from the fire at the tip site, some 500m or so into Hall's paddock. The fire became established in Hall's paddock and quickly got out of control. It then moved to the Water Corporation land further to the south and east and then consumed a large part of the district.

41 Having made those findings of fact, it is appropriate that I detail the evidence upon which those findings are based.

Weather conditions

42 As I have indicated above, there was no real dispute between the parties that on 15 December 1997 the weather was hot and dry. To detail the weather conditions the plaintiffs called Cook, a meteorologist in the Climate and Consultancy Section of the Bureau of Meteorology. Cook had prepared a report which appeared as part of exhibit "P60". There is, of course, no weather recording device located at the Brookton tip site. It is necessary, therefore, to reconstruct the conditions that prevailed on

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15 December 1997 from information available from adjacent observation points. Based on this information, Cook estimated that between 9am and 12pm the wind was from the north-north-east at between 30 and 35 kmh. By 1pm the wind speed had increased to 40 kmh and the wind had shifted to due north. By 2pm the wind had swung around to the north-north-west but was still blowing at 40 kmh. Thereafter the wind speed increased and the wind gradually shifted to west-north-west by 4pm. However, at the relevant time - that is between 11am and 1pm, the wind was blowing from the north-north-east, swinging around to the north at between 35 and 40 kmh.

43 Cook's evidence also indicates that the temperature between 11am and 1pm was between 36 and 38 degrees. The relative humidity was at 2 per cent and falling. Cook indicated this meant that the conditions were very dry, there being virtually no moisture in the atmosphere. The Bureau of Meteorology forecast issued on 14 December 1997 specified the fire danger as high.

44 It is common ground between the parties that on 15 December 1997 the Chief Fire Officer of the defendant issued what is known as a harvesting ban. This harvest ban which was broadcast over local radio prevents any person harvesting crops or moving vehicles in paddocks within the Shire of Brookton. Such bans are issued because of the risk of fire given the extreme weather conditions.

Grain dumped at tip site

45 There is no doubt that in the months prior to 15 December 1997 someone had dumped grain at the tip. How much grain was dumped and precisely what became of it is not, in my view, material to the outcome of these proceedings. What is important is that first there was grain on the site and second, from time to time employees of the defendant had seen grain smouldering prior to 15 December 1997. Flood in his evidence (exhibit "D17") says (at par 149):

"I attended the tip in what I think could have been September 1997, and saw a pile of grain smouldering near the western bund at the tip pad."

He goes on to say that the grain was smouldering "a bit like sawdust".

46 Most importantly there is the evidence of Watts. In a statement which became exhibit "P84B" Watts said that on the morning of 15 December 1997 he was working at the tip. He says he noticed "a small

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flame in some rubbish". He carted two loads of gravel with the bucket on the loader and covered the flames and smouldering embers with gravel. He got off his loader and checked to ensure that the flames were covered and that the fire was extinguished. Having established this to be the case, he says:

"I got back on my loader and then saw that the grain was still smouldering in a different area that I hadn't covered with gravel.

The area was to the left of the place that I had dumped the gravel.

I didn't cover the smouldering grain as I thought it was safe."

47 In my view there can be no doubt as to first, the existence of grain on the site on the morning of 15 December 1997 and as to the fact that it was smouldering. The defendant led no evidence to the contrary.

The fire established

48 It is not entirely clear what time Watts left the tip. He says that he was working at the tip at approximately 11am (see exhibit "P84B", par 5) and his statement indicates that he did certain things after that time. Certain interrogatories were administered to the defendant and interrogatory 41 asked whether Watts was at the tip on the morning of 15 December, and if so, what time he departed. Answer 41(b) gives Watts' time of departure as approximately 11.15am. This is consistent with the evidence of three other witnesses, Allan Chittleborough, Mark Thorne and Grant Mathew Riley. None of these witnesses was able to be precise about the time that they were at the tip on the morning of 15 December but each indicated that they were present around 11am. All three left before Watts. In my view, the evidence establishes that Watts left the tip at or just after 11am. At the time of his departure there was no fire burning in the sense that no flames were visible. What he did see was smouldering grain giving off a wisp of smoke.

49 At between 11.35am and 11.50am Butcher was travelling to the Brookton township along the Corberding Road. He observed what he presumed to be smoke rising from the area of bush where the tip was located. The smoke was in a black column. He was sufficiently alarmed by this observation to go directly to the Shire office and report his observation to the receptionist, a Ms Suzanne Rayner ("Ms Rayner"). Butcher estimates his time of speaking to Ms Rayner at 11.55am. In his

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presence, Ms Rayner contacted Forward at the Shire depot using a two-way radio. Having satisfied himself that his concerns about any fire at the tip were being addressed, Butcher went about the business that had drawn him to Brookton.

50 Watts was at the Shire depot and says he heard the conversation between Forward and Ms Rayner. He puts the time of the call at 12.20pm but on balance, it is likely to have been earlier. Either way, Forward asked Watts if there was a fire at the tip. Watts responded that there was no fire. He says he did not mention the smouldering grain. Watts heard Forward advise Ms Rayner that he would investigate the report straight away. Watts then says that Forward advised him to finish his lunch prior to attending the tip to check on the report of fire.

51 Before either Watts or Forward left the depot for the tip, Butcher called in at the depot to inquire about the inspection resulting from his report. It is to be noted that Butcher had completed his business in the town and had driven to the Shire depot. Butcher estimates the time at approximately 12.45pm. It would certainly have been no later than that, and it may have been as early as 12.30pm. Either way, between 35 and 50 minutes elapsed between the first report by Butcher of fire at the tip and Forward leaving the depot to investigate the report.

52 Butcher says that when he spoke to Forward he was told by Forward that there was wheat smouldering at the tip and that he (Forward) had planned to send a couple of men to the tip with a fire unit to investigate. Butcher's recollection of this conversation was not challenged in cross-examination and there is no reason to doubt Butcher's evidence on this point. The only conclusion that can be drawn is that, contrary to what Watts says, when Forward received the call over the two-way radio and discussed the report of fire with Watts, Watts had told him about the smouldering grain. Armed with this information, Forward delayed for between 35 and 50 minutes in sending anyone to the tip.

53 Once Butcher had departed, Forward and Watts drove in a utility from Brookton towards the tip. They observed smoke coming from the tip and radioed to Bowron. When Forward and Watts arrived at the tip pad area, they observed that the fire had burnt out the western side of the western bund, had crossed the western firebreak and was burning on a front 60 metres long and 20 metres wide. They observed that the fire was 3 to 4 metres high, was burning fiercely. It was in the leaves of the trees.

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54 As soon as Bowran arrived with the defendant's fire truck, Watts and Forward began fighting the fire. They started at the northern end of the fire and moved south, working from the firebreak. After 15 of 20 minutes their supply of water was exhausted. They had not quite extinguished all of the fire but they had it under control. It was then that smoke was noticed some distance away in Hall's paddock. None of the witnesses observed the area of bush between the southern end of the tip pad and the southern boundary of the tip reserve to be alight. What everyone observed was smoke coming from what appeared to be a discrete fire in Hall's paddock. Upon investigation that was found to be the case. None of the witnesses gave evidence that they observed anything when dealing with the fire on the western side of the tip which could account for the fire in Hall's paddock.

55 It was the plaintiffs' case that the fire in Hall's paddock occurred because of a phenomenon known as "spotting". Smith gave evidence that spotting of fires occurs when fire brands or embers are carried forward of the head fire, creating a "dependent fire". The evidence of Smith was that "all forest (fires) spot some distance" (transcript 687) and that in conditions such as those prevailing on 15 December 1997, spotting "will happen". Both Tong and de Bruin confirmed that spotting invariably occurs in forest fires. Other witnesses gave evidence that they had seen spotting occur on occasions. The defendant led no evidence to the contrary. Faced with the uncontradicted expert evidence I am satisfied that in this case the fire in Hall's paddock was caused by spotting from the fire on the western side of the tip.

56 It was also clear from the expert evidence that the likely source of the fire was the grain located on the western side of the tip pad. None of the experts could say precisely where the fire started. But all of them, after examining the evidence, were able to trace the site of the fire to the area where the grain was located. They did this by using a number of indicators. Their evidence on this point was not challenged.

57 Before leaving the expert evidence I should make mention of the conclusions reached by Smith in his report. He examined the scene some years after the fire occurred. He concluded that the fire had burnt through the tip reserve to the boundary between the reserve and Hall's paddock. In his view the fire had then spotted from the reserve some distance into Hall's paddock and then proceeded to the south. This is clearly wrong. All of the witnesses who were present at the time agreed that by the time Watts, Forward and Bowron had exhausted their water, the fire in the tip reserve was largely under control. No-one observed any fire in the tip

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reserve south of the fire break running east-west. When smoke was first seen it was some distance into Hall's paddock. It is the case that later in the day fire in the tip reserve did re-ignite and the bush to the south of the tip pad was burnt. But it is clear that this happened after the fire in Hall's paddock was observed and could not have been responsible for producing the secondary fire.

58 While I am not satisfied that Smith's conclusions as to the causes of the fire are correct, I accept his evidence otherwise. In a strong field he was the best qualified of the experts. A reading of his report and the transcript of his evidence shows that he has a sound theoretical understanding of the way in which bush fires behave. As I have indicated above, his evidence as to the way in which spotting occurs was of significance.

59 I have reached the conclusion that the fire started in Hall's paddock as a result of spotting essentially on the uncontradicted evidence of the expert witnesses. Given the lack of any direct observation it is reasonable to ask, if the fire in Hall's paddock did not start as a consequence of spotting, how it did start? As I have indicated, in the defence the defendant alleges that the fire at Hall's paddock started entirely independently of the fire on the tip site. Given this plea, it seemed reasonable to assume that the defendant would lead some evidence as to how the fire in Hall's paddock started. After four days of evidence and after listening to the cross-examination of a number of witnesses, including de Bruin, I could not divine from the way cross-examination was conducted, how it was said by the defendant the fire started in Hall's paddock. In fairness to counsel for the defendant I pointed out how I saw the evidence up to that point and I enquired on what basis it was said by the defendant that the fire had started in Hall's paddock. This exchange is to be found between pages 616 and 630 of the transcript. During the course of this exchange, counsel for the defendant suggested that there was a possibility that the fire in Hall's paddock started as a consequence of sun on glass setting fire to the dry vegetation. As I pointed out to counsel at the time, up to that point no questions had been put to any of the witnesses which could have suggested glass as the cause of the fire in Hall's paddock. Mr and Mrs Hall had given evidence, as had their two sons. No questions were put to them which hinted at the possibility of there being glass in the paddock. Furthermore, de Bruin, in the course of cross-examination, did say that glass or a bottle full of water could, in certain circumstances, start a fire but there was no exploration of the conditions under which a fire might break out. When questions were

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eventually put to Tong and Smith about the prospect of the fire starting as a consequence of broken glass, both dismissed it as a possibility.

60 On two occasions during this exchange (at pages 616 and 629), counsel for the defendant pointed out that the plaintiffs carried the onus of proof in the action, the implication being that it was for the plaintiffs to prove their case and the defendant was not obliged to do anything. In strict theory, that is right. The defendant, having no evidence to counter the plaintiffs' case and being faced with only one real possibility, can exercise its right and require the plaintiffs to establish on the balance of probabilities that their version of events is to be accepted. A defendant who exercises that right can expect to pay for doing so.

Duty of care

61 As I indicated above when reviewing the pleadings, the defendant in its defence denied it owed to the plaintiffs a duty of care. This was not a point pressed by counsel in his closing submissions. It is clear that in circumstances where a local authority is managing a refuse disposal site, it owes a duty of care to landholders in the vicinity. It is enough if I refer to the High Court decision of TheCouncil of the Shire of Sutherland v Heyman (1985) 157 CLR 424 to support this proposition. Olsson J undertook a detailed analysis of the authorities in the decision of Casley-Smith v F S Evans & Sons Pty Ltd (1989) Aust Torts Rep 80-227 at 68,369 to 68,381. I respectfully adopt, without repeating, what his Honour had to say.

62 How then is the duty of care to be formulated in this case? It must be remembered that the duty of care owed by the defendant to the plaintiffs is being considered in the context of a fire which escaped from the defendant's land and damaged the plaintiffs' property. It is, then, I think, reasonable to say that the defendant was under a duty to take all reasonable steps to ensure that fire did not escape from its property into neighbouring properties, and further, that if fire did break out in the tip, it would be extinguished with all expedition. This states the position broadly and does not attempt to define the duty the defendant owed the plaintiffs as the plaintiffs have done in par 72A and 72B of the re-amended statement of claim. While it is unnecessary for me to deal with each of these individual paragraphs, I am satisfied that the duty of care pleaded by the plaintiffs was owed to them by the defendant.

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Foreseeability

63 The next question is whether it was foreseeable if the defendant breached its duty to the plaintiffs, the plaintiffs could suffer loss and damage. In my view, it is clearly foreseeable that if fire broke out in the tip, it could escape from the defendant's land and damage the plaintiffs' land. It must be acknowledged that the defendant did take some steps to prevent a fire at the tip escaping. It undertook controlled burning in the vicinity of the tip site and installed fire breaks. But it could not be suggested, and indeed was not suggested on behalf of the defendants, that having taken those steps, there was no realistic prospect of fire starting at the tip and spreading to adjacent properties.

64 It may well be the case that the defendant, its servants or agents, did not anticipate that a fire which started in the tip would spot with the effect that Hall's paddock would be set alight and the fire would spread throughout the district. But it is of no moment that the precise mechanism of the spread of the fire was not anticipated and could not reasonably be anticipated by the defendant. What was foreseeable was the prospect the fire might escape. In the circumstances that is sufficient: see Hughes v Lord Advocate [1963] AC 837; The Wagon Mound (No 2) [1967] 1 AC 617.

Defendant's breach of duty

65 The plaintiffs plead that one aspect of the defendant's duty of care was a requirement that it instruct its servants or agents to extinguish any fires which were seen at the tip. This is no more than one aspect of the defendant's duty to ensure that fire did not escape from the tip reserve. In fact, no instructions were issued by the defendant either through Curley, Flood, or anyone else to either Forward or Watts, directing that any fire at the tip should be immediately extinguished. By interrogatory 39 the plaintiffs ask the defendant whether it had instructed any (my underlining) of its employees:

"(a) not to leave the Defendant's Tip if there was a fire burning or smouldering at the tip;

(b) to extinguish all fires at the Defendant's Tip before leaving the tip;

(c) to immediately obtain assistance to extinguish a fire at the Defendant's Tip if they needed assistance;

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(d) to inform the Shire Clerk or the Fire Control Officer of any fire burning or smouldering at the Defendant's Tip."

66 The answer to each of these questions was a straightforward, simple "no". In other words, the defendant had not taken even the most basic precautions to ensure that if any of its employees became aware of a fire at the tip, they put it out. It might be said that taking such a step was so obvious that no employee confronted with the weather conditions of 15 December 1997 would leave smouldering grain on a tip site. But employees are notorious for making errors. The defendant is not required to guarantee that one of its employees will not make a basic and fundamental error. What it is required to do is take steps which lessen the likelihood of such errors and omissions being made. But the defendant did nothing.

67 This is not a case where the defendant is being asked to meet some esoteric standard conjured up by lawyers acting with the benefit of hindsight. Nor is it a case where what the defendant is being asked to do is expensive, inconvenient or in any way unrealistic. All the defendant was required to do was to instruct its employees to ensure that any fire seen on the tip site was extinguished as soon as possible. This might have been done by way of an in-house course held at the beginning of the fire risk period. It might even have been as simple as putting a notice in a prominent position in the defendant's works depot. Perhaps given the importance of fire control it could have been done by way of written directive issued to each of the defendant's employees. None of these alternatives is difficult, none is expensive to implement. Yet the defendant did nothing.

68 In a similar vein, no directions were issued by the defendant to Forward to the effect that if fire was reported at the tip, steps should be taken promptly to ensure that it was extinguished. As I have indicated above, the evidence establishes that after Forward was notified by Ms Rayner of Butcher's sighting of smoke at the tip, it was between 35 and 50 minutes before he mobilised his team and headed out to the tip site. That 35 to 50 minutes may or may not have been crucial. It is highly likely, in my view, that had Forward acted promptly, his team may have been able to extinguish the blaze before it took hold and had the opportunity to spot into Hall's paddock. It must be acknowledged that there is an element of conjecture in this conclusion but a detailed consideration of the evidence, in particular, the experts' assessment of how long it takes a fire to become established, lends support to the view that prompt action may have averted the fire in Hall's paddock.

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69 The defendant had issued no directions whatever to Forward that he was to take prompt action when a fire was reported at the tip. It almost beggars belief that given the prevailing weather conditions on 15 December 1997, and given the report of smoke, that a person in Forward's position would have instructed his staff to finish their lunch before taking steps to investigate what should have been an alarming report. Once again it is not up to the defendant to guarantee that a lapse of judgment on the part of Forward will not occur. But it is up to the defendant to do their level best to ensure that such lapses do not occur. In this case the defendant did nothing.

70 These omissions by the defendant are but two aspects of what was overall shocking mismanagement of the tip site.

71 Prior to 1996, control of rural landfill sites had been dealt with under the Health Act. In early 1994 a waste management group was formed within the Health Department. This group subsequently moved to the DEP and became the Waste Management Division. In order to control the operation of landfill sites, legislation was introduced which required local authorities to obtain a licence from the DEP to operate landfill sites. These licensing requirements were introduced as of 1 October 1996.

72 Prior to the introduction of the licensing requirement, the DEP published a document entitled "Landfill Waste Classification and Waste Definitions 1996": exhibit "P15". This document defined certain classes of landfill sites and certain definitions applying to those sites. A Landfill Class II site was defined as being "Landfill type: Putrescible". The type of waste accepted in such sites was inert waste, putrescible waste and certain other types of waste not presently relevant. The term "Putrescible waste" was defined as being "waste that will decompose readily under microbial attack. It includes green waste and wastes arising from residential, commercial and industrial sources." The tip operated by the defendant fell within this Class II definition.

73 As part of the move towards licensing of landfill sites, Ms Archdeacon, in company with Flood, undertook an inspection of the defendant's tip on 2 May 1996. Subsequent to that inspection she wrote to the defendant outlining what she had found and what steps the defendant was required to take to comply with the Department's requirements: exhibit "P13". Ms Archdeacon noted that the site "appeared in reasonable condition" but said there were a number of matters which needed to be addressed. In particular, she said:

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"There is evidence of burning of putrescible waste on site. While the Department is aware of the difficulty of policing rural sites, it must be noted that burning of the active face is not permitted. Appendix VI of the Code of Practice - Country Landfill Management outlines the Department's policies on burning requirements."

74 Ms Archdeacon also noted that there was no fencing of the site to prevent wind-blown litter. She made a number of recommendations, including covering the "active face" of the tip with 230 mm of soil. She suggested this should be done "at least weekly, preferably more often".

75 The Code of Practice to which Ms Archdeacon referred in her letter appears as exhibit "P16". The document itself is said to be a discussion paper. It is dated 1 November 1996. It is unclear whether the Code of Practice ever progressed beyond the status of discussion paper. However, the DEP and all other parties appear to have treated the Code of Practice as effective, even prior to the publication date of 1 November 1996.

76 The Code of Practice was intended "primarily to provide design and management guidelines which are appropriate for landfills in various size categories": par 1.1. Section 4.7 dealt with "fire control". Under this section there appeared the following:

"Burning landfills produce potentially hazardous smoke and fume which can cause great distress for surrounding residents. In addition landfill fires are extremely difficult to control or extinguish and have been known to burn for many months beneath the landfill surface. Fires on landfills also serve as a potential ignition source for bush fires. Landfill operators who do not take adequate action to prevent and control fire may face litigation in the event that property damage arises from a fire which can be tracked back to a burning landfill." (My underlining)

In retrospect, these words have a prescient ring.

77 On 15 January 1997 the DEP wrote to the defendant referring to the fact that legislation requiring licensing of waste management facilities were to be proclaimed in September/October 1996 and pointing out that the transitional period for licensing expired on 13 March 1997: see exhibit "P17". This letter enclosed a copy of licence conditions for the defendant's tip: see exhibit "P22"; exhibit "P59" (statement of Ms Archdeacon, par 17, annexure "DJA4").
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78 Flood completed an Application For Licence (exhibit "P18") and forwarded it to the DEP under cover of a letter of 23 January 1997: exhibit "P19". That letter advised that the Council of the defendant had not met to consider the proposed licence conditions and advised that although an application for a licence had been made, Council would not necessarily accept a licence with conditions anticipated in the draft. Council did meet on 26 February 1997 and the "Waste Facility Licensing - Draft Set of Conditions" was considered by the Council in the context of the Environmental Health Officer's report. The minutes of the Council meeting of that day (exhibit "P20") show that the Environmental Health Officer was "authorised to negotiate with the EPA (sic) to ensure that conditions imposed on the Brookton Rubbish Disposal site are relevant to the Brookton site".

79 In line with Council's instructions, Flood wrote to the DEP: exhibit "P23". The letter is undated but must have been written some time after 13 May 1997 and before 10 June 1997. The letter says that the licensing conditions were accepted "subject to section fencing 13A and 13B (sic) being removed and G14 being amended by deleting 'On a weekly basis' and adding 'when and if required by the Council's Environmental Health Officer' ". By pars G13(a) and G13(b), certain fencing requirements of the tip were specified. G14(a) and G14(b) dealt with wind-blown waste. It is perhaps worthy of note that no comment was made either by the Council or Flood to par A2(a) of the licence, which required the licensee to take "all reasonable precautions to prevent the burning of putrescible waste".

80 By facsimile of 10 June 1997 the DEP advised that they would not modify the conditions as requested by the Council (exhibit "P24"). Under cover of a letter of 12 June 1997 the DEP forwarded to the defendant a copy of the licence, including the conditions identical to those contained in the draft: exhibit "P25". Although it is not entirely clear it would appear that this letter from the DEP, including the licence and the conditions, was tabled at a meeting of the Council on 19 June 1997. (I say it is not entirely clear because the Council's copy of this letter bears a date stamp of 20 June 1997 - the day after the Council meeting. However, the tone of the Council minutes seem to indicate that Councillors had the letter before them.) After some discussion the minutes note as follows:

"Moved Cr Hore seconded Cr Eyre that the Licence Conditions accept Section G13A and G13B being deleted and Section G14B being amended by deleting 'on a weekly basis' and

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substituting 'when required by Council's Environmental Health Officer' be accepted."

81 It is apparent that this motion proceeded upon an entirely incorrect basis. The DEP had the legislative power to licence waste management facilities. It purported to exercise that statutory right by the issue of a licence to take effect from 12 June 1997. The Council seems to have assumed that it could accept or reject clauses of the licence. That was clearly wrong. It is perhaps surprising that Curley, did not advise the Council that it had obligations under the licence; or at least recommend, if he was in any doubt, legal advice be taken as to whether or not the Council was obliged to meet all of the conditions specified in the licence. But the Council did nothing.

82 On 18 September 1997, Ms Archdeacon undertook an inspection of the Brookton tip. On 25 September 1997 she wrote to the defendant advising of her inspection and what she had observed. This letter is of some significance and I will quote it in full: exhibit "P28".

"Shire Clerk
Shire of Brookton
PO Box 42
BROOKTON WA 6306


Dear Sir

Audit of the Brookton Landfill Site on Thursday 18 September 1997

An audit of the Brookton landfill was undertaken by Waste Management Division officer Deb Archdeacon, on 18 September 1997. The audit of the landfill revealed that the landfill is being poorly managed.

The following points demonstrate that the putrescible disposal area does not meet the requirements outlined in the Code of Practice Rural Landfill Management, nor the conditions of the landfill licence number 6811:

• Putrescible waste was scattered over a very large disposal area of approximately 250 square metres (see condition G11);

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• No stockpiles of cover material (see condition G12);
• Windblown waste was noted up to 250 metres on either side of the putrescible waste area (see condition G14).
• The waste was not contained in a bunded or trenched area, but was pushed over the edge of an embankment exposing a face of putrescible waste of at least 6 metres (see condition G10). This face was burning in contravention of condition A2(a).



Additionally, at the time of the audit, a truckload of domestic waste was tipped into the middle of the putrescible tipping area further reducing public access to the site. The flies at the site were considered to be extremely excessive and represented a significant public health concern.

In order that the site complies with the conditions of licence, dated 12 June 1997, the following are the minimum works which should be implemented within two months of the date of this letter.

1. Effectively cover the exposed faces of the putrescible waste disposal area with 230mm of cover material.

2. Bund an area on the main road side of the exposed face and use this area to dispose of putrescible waste. This will enable waste to be pushed up against the existing exposed face, therefore allowing some sort of compaction and reduction of the disposal area required. Additionally this will form a bunded tipping area that will enable council to comply with condition number G10.

3. Erect signs and/or advertise in the Brookton local newspaper of the requirements of the landfill licence. Education of landfill users may encourage the correct disposal practices.

A further audit of the landfill will be undertaken in two months to ensure compliance with licence conditions. If you have any questions, please contact Deb Archdeacon on 08 9476 7417.

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Yours sincerely

(signed)

Cameron Schuster


ACTING DIRECTOR
WASTE MANAGEMENT DIVISION

25 September 1997"

83 One might have expected that this letter would have caused consternation within the defendant. First, it indicated that the defendant was not meeting its obligations under the licence and therefore was potentially liable to a penalty for breaching the licence. Furthermore, Ms Archdeacon had observed burning waste at the tip. This was on 18 September - the period leading up to summer and the heightened fire risk. The letter did not immediately come to the attention of Curley. It seems that there was an administrative system in place within the defendant which allowed for the receptionist, or some other member of the clerical staff, to sort mail immediately upon its receipt. As a consequence the letter from the DEP was passed directly to Flood. This system operated despite the fact that in its letterhead the defendant requested that all mail be directed to the Chief Executive Officer.

84 However, despite Curley's best efforts, the letter from the DEP did come to his attention and the attention of the rest of the Council. The minutes of the meeting of Council held on 23 October 1997 (exhibit "P29") make it plain that the letter was discussed. The result was a letter from the defendant drafted by Flood to the DEP: see exhibit "P30". It is also worth quoting this letter in full:

"The Acting Director
Waste Management Division
Department of Environmental Protection
PO Box K822
PERTH WA 6842

Dear Sir

RE: AUDIT - BROOKTON LANDFILL SITE

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Further to your inspection of the above mentioned and your correspondence of the 25th September, 1997 regarding Council's refuse site.

This subject was forwarded to Council who resolved at it's meeting on the 23rd October, 1997 to inform the Department of the following:

1. The next time an inspection is carried out would they please extend the courtesy of notifying Council after it has been completed, and then some of the queries could be answered.

2. Council Material is stockpiled when available, and their (sic) is a large quantity stored on site.

3. Council does not burn any Putrescible refuse, and cannot control pyromaniacs at the site.

4. As the rubbish is pushed over the edge on Monday's and Friday's, Ratepayers dump their refuse anywhere despite Council's best intentions to educate the Landfill Users, and the load of Domestic Waste mentioned would have been deposited that day as Thursday is Council's Collection Day.

5. Wind blown rubbish is picked up when Council Staff are available.

6. Council spray for flies every fortnight during the winter months, weekly during summer.

If you have any further queries on this matter please do not hesitate to contact the undersigned.

Yours faithfully

(signed)

NEIL FLOOD


ENVIRONMENTAL HEALTH OFFICER/BUILDING SURVEYOR"

85 This rather petulant response was the only action that the defendant took consequent upon Ms Archdeacon's letter of 25 September 1997.

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There is no evidence to suggest that the Council itself, or the administration, took any steps to remedy any of the breaches of the licence. More importantly, at least in the context of this case, no steps were taken with respect to fire management or control. This is truly remarkable. Eyre, who was a Councillor, was also the Chief Fire Control Officer. He and the rest of the Council had before him clear evidence that in mid-September there was a fire at the tip. Even if it was believed that this fire was an isolated incident, the Council was alerted and should have taken some steps to ensure that its staff had a procedure to extinguish any fires which may have been discovered. Furthermore, the inaction of Curley is startling. He was responsible for administrative control of the activities of the defendant. He was provided with concrete evidence of a landfill site which was being poorly managed and on which fire had been seen. Ms Archdeacon's letter cried out for some action. But he seems to have been curiously disengaged. He saw the responsibility for managing the tip as being within the province of Flood and not a matter about which he need be concerned. Nowhere in the evidence was there any attempt to justify his inaction.

86 Finally there is Flood. It was not perhaps his prerogative to issue directions to Forward, although it does seem from time to time he did direct Forward as to management of the tip. However, Flood did not have any experience in fire control. While there is no doubt that faced with the letter from the DEP he should have issued some directions to Forward as to the proper management of the tip, it really was for Curley to take the matter in hand.

87 It will be apparent from the above that the defendant had ample warning of the problems associated with the tip. The DEP set out those problems in the clearest possible detail and warned the defendant of the potential legal liability if fire escaped from a tip site. A licence was issued and the defendant made no effort to comply with its terms. When confronted with an audit which clearly demonstrated that the management of the site was inadequate and there was evidence of burning of waste, the Council did nothing. In my view there can be no doubt at all of the defendant's negligence.

Breach of statutory duty

88 In light of the conclusion I have reached on the issue of negligence, it is not strictly speaking necessary for me to deal with the plaintiffs' claim based on breach of statutory duty. However, the matter was fully argued and it is appropriate if I deal briefly with the issue.

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89 In closing submissions counsel for the defendant claimed that the DEP did not have the power to undertake licensing of local authorities who conducted tip operations. Having listened to counsel and reconsidered the terms of the appropriate statute, I have some difficulty understanding the basis of that submission. However, given the conclusion I have reached it is not necessary for me to offer a view on the issue.

90 Assuming without deciding that the defendant was properly licensed by the DEP in terms of the licence purportedly issued, I am not satisfied that the fire can be directly linked to a breach of one or other of the terms of the licence. It may be the case that if the tip had been fenced, as was required by the licence, fire would not have become established on the western bund and would not have spread as quickly as it did. But the evidence on this question was unclear and I could not conclude that the failure to erect a fence led directly to the fire becoming established and the spotting in Hall's paddock. It is true that par A2(a) of the licence required the licensee to take all reasonable precautions to prevent the burning of putrescible waste. However, it is open to question whether that condition of the licence extended to requiring the defendant to instruct its employees as to what was to be done if smouldering was seen on the tip site. It rather seems that the clause may have been directed and ensuring that 230 mm of gravel was placed over any fires that were observed on the tip. Again, I would express no concluded view on this matter. However, on balance, I am not satisfied that the plaintiffs have a claim against the defendant for breach of statutory duty.

Conclusion

91 This whole case must be viewed against the defendant's position as the operator of a waste disposal site in a rural area. As the DEP's Code of Practice said, fires at tips are notorious. At the same time, every individual living in rural Australia knows of the risks posed by bush fire, particularly in extreme weather conditions. A number of witnesses who gave evidence and who were farmers were asked whether they owned fire-fighting equipment. Without exception, they were surprised by the question. Of course they owned fire-fighting equipment - an ability to deal with fires is as central a part of farming as having a tractor to seed the paddocks. On a number of occasions counsel for the defendant urged that I should bear in mind that the defendant in this case, although a local authority, was made up of men and women seeking to do the best they could for the local residents in difficult circumstances. If the defendant is viewed in that way, it necessarily follows that each of the men and women

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making up the defendant were intuitively aware of the risks of fire. That makes the failure of the defendant to implement some system to ensure that any fires that were observed at the tip, were immediately extinguished, difficult to understand. The defendant's inaction was inexcusable.

92 Finally, I should make a general comment about the way in which this claim was defended. From first to last it was difficult to see on what basis the defendant was resisting the plaintiffs' claim. I have already dealt in detail with the causes of the fire. No reasonable counter-proposition was put by the defendant to the plaintiffs' case. The same might be said with respect to the breach of the duty of care. There was no suggestion that there was in place any system for dealing with fires at the tip. The defendant never really presented or developed any coherent counter-argument to answer the plaintiffs' claim. It was almost as though the defendant's officers, bewildered that the fates had turned against them, could not bring themselves to accept that the defendant was responsible for the catastrophe. It may have been better for all concerned had they done so.

93 In my view, the defendant is liable to the plaintiffs for damages caused as a consequence of a fire which broke out on the defendant's property on 15 December 1997. The defendant should pay to the plaintiffs damages to be assessed. I will hear the parties with respect to costs and orders which should be made for the assessment of damages.