Fawkes v West
[2016] WADC 169
•16 DECEMBER 2016
FAWKES -v- WEST [2016] WADC 169
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 169 | |
| Case No: | APP:52/2016 | 4 NOVEMBER 2016 | |
| Coram: | GOETZE DCJ | 16/12/16 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ELTON SAMUEL FAWKES CAROLYN WEST |
Catchwords: | Appeal from Magistrates Court Fire alleged to have escaped from appellant's property to respondent's property Liability Turns on own facts |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 |
Case References: | Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Chappel v Hart [1998] HCA 55 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Smith v Mandurah Auto Pty Ltd [2014] WADC 69 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CAROLYN WEST
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE HALL
File No : GCLM 77 of 2013
Catchwords:
Appeal from Magistrates Court - Fire alleged to have escaped from appellant's property to respondent's property - Liability - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr C J Graham
Respondent : Ms S Cherry
Solicitors:
Appellant : Borrello Graham Lawyers
Respondent : Ligeti Partners Lawyers
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chappel v Hart [1998] HCA 55
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Smith v Mandurah Auto Pty Ltd [2014] WADC 69
- GOETZE DCJ:
Introduction
1 The appellant, Mr Fawkes, and the respondent, Ms West, own adjoining properties in Cunderdin.
2 On 10 March 2012, Mr Fawkes carried out some burning off on his property. On the following day, a fire occurred on Ms West's property, causing damage. Ms West alleged that the fire was caused by Mr Fawkes' burning off and claimed compensation from Mr Fawkes for that damage. Mr Fawkes denied liability. In consequence, Ms West's claim proceeded to trial in the Magistrates Court.
3 At trial, the only issue was liability. The quantum of damage was agreed in the sum of $31,910.74. The learned trial magistrate found in favour of Ms West. Mr Fawkes now appeals that decision.
The magistrate's reasons for decision
4 The learned magistrate relied both on the evidence of Mr Phillip Glover, an expert called by Ms West, and also his own inferential reasoning, in finding the claim was proved. He said:
65. I accept that the foundation of facts upon which Mr Glover formed his opinion in his Report changed as a result of witnesses not called and subsequently ruled inadmissible evidence. I accept on the basis of the facts 'taken out', Mr Glover may have had insufficient information to form a conclusion. However, there was also new information that Mr Glover received at trial, being the evidence of the V shape, which allowed him to make further conclusions about the likely origin and source of the fire on 11 March 2012. These further conclusions ultimately supported his original finding at item 19 paragraph 5 of his Report that 'On the balance of probabilities alone, the most likely cause of the fire that impacted on the Defendant's [sic] property on Sunday 11 March 2012 was related to the incomplete extinguishment of the burn off conducted on the Defendant's property on Saturday 10 March 2012.
66 Based upon my assessment of Mr Glover's expert evidence and on the facts I have already found proven above, I find the following facts and draw the following inferences on the balance of probabilities:
1. the 'duff layer' and 'litter layer' on the top of soil can smoulder and, unless properly extinguished, can retain heat and may cause fires that appear extinguished to 're-ignite', even days later.
2. The area along the boundary fence of the Claimant's and the Defendant's property was not adequately cleared for a safe burn off and contained debris which was capable of reigniting.
3. On the balance of probabilities, and based upon my previous findings of fact at paragraphs [34] and [47] above, I draw the inference that the fire on the Claimant's property on Sunday 11 March 2012 was caused by the incomplete extinguishment of the burn-off conducted on the Defendant's property on Saturday 10 March 2012.
4. From the V principle and the diagrams marked by Mr Lawrie and Mr Taylor in Exhibits 6 and 15, I draw the inference that the fire on the Claimant's property started at the approximate half way point along the boundary fence of the two properties, which is in the area of the chicken shed.
5. Based upon the state and location of the burnt fence post shown in photo 35, I draw the inference that this burnt fence post was more likely than not the source of ignition of the fire on the Claimant's property.
Appeals from the Magistrates Court
6 This appeal is brought pursuant to the provisions of s 40 of the Magistrates Court (Civil Proceedings) Act 2004, by which s 40(4) provides, relevantly:
The District Court must decide the appeal on –
(a) the material and evidence that were before the Magistrates Court; and
(b) any other evidence that it grants leave to be admitted.
7 The appeal is by way of rehearing. That the court may grant leave to admit new evidence does not make the appeal a hearing de novo: Smith v Mandurah Auto Pty Ltd [2014] WADC 69.
8 It is necessary for Mr Fawkes to demonstrate error in the reasons for decision of the learned magistrate. It follows that the appellate powers of this court may only be exercised if Mr Fawkes has demonstrated that the learned magistrate's decision is the result of some legal, factual or discretionary error: Smith v Mandurah Auto.
The grounds of appeal
9 There are four grounds of appeal as follows:
1. The Magistrate erred in law and fact by finding at [60] and [65] of the reasons for decision (Reasons) that the expert evidence of Mr Philip Glover was that the likely cause of the fire on the Claimant's property was the incomplete extinguishment of the fire on the Defendant's property, when His Honour should have found that Mr Glover's evidence was that there was insufficient admissible evidence to determine the cause of the fire on the Claimant's property.
2. The Magistrate erred in law and fact by drawing inferences and making findings at [66] of the Reasons regarding the cause and source of the fire on the Defendant's property, based on his erroneous factual findings regarding the nature of Mr Glover's expert evidence.
3. Alternatively, the Magistrate erred in law and fact by drawing inferences and making findings at [66] of the Reasons regarding the cause and source of the fire on the Defendant's property, as those findings were against the weight of the admissible evidence and not logically supportable by that evidence.
4. The Magistrate erred in law and fact at [77] of the Reasons by finding that the Defendant was liable in negligence, when His Honour should have dismissed the claim on the basis that the cause of the fire on the Defendant's property could not be determined on the balance of probabilities from the admissible evidence before the Court.
10 In summary, Mr Fawkes really complains that:
1. The only expert witness at trial was Mr Glover. His pre-trial opinion as to the likely cause of the fire was based on certain factual matters, some of which were excluded before he gave evidence. It follows that he did not have sufficient information to form an opinion. The provision of so-called new information at trial was not, in fact, new information at all, such that when he came to give evidence, his oral opinion still did not have a sufficient factual base and could not be relied upon.
2. The learned magistrate erred in law and fact by drawing inferences and making findings as to the cause of the fire being Mr Fawkes' incomplete extinguishment of the fire, and the source of the fire being the burnt fence post, by reason that such findings were:
(a) based on erroneous factual findings from Mr Glover's expert evidence; and
(b) not open on the evidence independently of Mr Glover's expert evidence.
3. The learned magistrate erred in law and fact in finding Mr Fawkes to have been negligent. Rather, he should have found that the cause of the fire could not be determined from the admissible evidence.
Mr Glover's expert opinion
11 Mr Glover's expertise was not disputed. His pre-trial opinion had been sought to identify the likely cause of the fire. To this end, he assembled the background facts, whether known or assumed. He considered:
1. statements from various witnesses, some of whom gave evidence at the trial;
2. a plan showing not only the properties of Ms West and Mr Fawkes, but also other properties surrounding their properties, together with the street layout. The plan also shows the wind direction on the day of the subject fire; and
3. 53 photographs without captions and without descriptions of where they were in relation to Ms West's property. In his report, Mr Glover said at [18]:
2. I have viewed these images and note they are not captioned and their individual orientation to the area where the fire occurred is not clear.
3. Identification of which image relates to which of the two properties relevant to this matter is not given.
13 Mr Glover's pre-trial opinion was that the cause of the fire was the failure of Mr Fawkes to completely extinguish his burning off. Mr Glover did not venture a pre-trial opinion as to the source of the fire.
Mr Glover's evidence at trial
14 The trial proceeded on 29 and 30 April 2015, followed by a break until 19 and 20 November 2015.
15 By the time Mr Glover gave his evidence on 30 April 2015, certain factual matters underpinning his opinion had been excised from his report. The basis for his opinion was thus at least partially removed.
16 Mr Glover gave unchallenged evidence-in-chief that fire will:
1. generally travel away from its starting point in the direction of wind;
2. travel up a slope; and
3. travel in a V shape pattern. The V shape reveals an area of origin of the fire with the starting point, known as the V point. This is known as the V principle.
17 Mr Glover also gave unchallenged evidence that, unless properly extinguished, burnt items, known as the 'duff layer' or 'litter layer', can retain heat and may cause fires that appear to be extinguished to re-ignite, even days later.
18 It was not disputed that, on the day of the subject fire, the wind blew in a south-westerly direction away from Mr Fawkes' property onto and across Ms West's property and that the fire spread in that same direction up a gentle slope on her property. The direction of the wind and the fire was not new information to Mr Glover at trial.
19 Prior to Mr Glover giving evidence, Mr Greg Lawrie, the captain of the Cunderdin Volunteer Fire Brigade, and Senior Constable Steven Taylor, the attending police officer who made his own report on the fire, gave their evidence. In the course of giving their evidence, they were each provided with unmarked copies of the same plan of the properties of Ms West and Mr Fawkes and surrounding properties provided to Mr Glover referred to above at [11.2]. They each respectively marked their estimation as to the area of land burnt by the fire. These marked plans then became exhibits 6 and 15 respectively. Mr Glover and Senior Constable Taylor provided slightly different sketches of the total area damaged by fire.
20 Although Mr Glover had been provided with the 53 photographs referred to above at [11.3] prior to trial, he had not seen an aerial plan or view to indicate the shape of the fire and he was not aware of any V point and the orientation of the logs and fence point to any V point.
21 When Mr Glover gave his evidence-in-chief he was then, for the first time, provided with exhibits 6 and 15 as marked by Mr Lawrie and Senior Constable Taylor.
22 Mr Glover was able to identify the V point in each sketch comprising exhibits 6 and 15. The V points were in almost the same position in each exhibit ie, being approximately half way along the boundary between the two properties.
23 Mr Glover's evidence was that prior to trial, he was not aware of the orientation of the boundary fence, the chicken shed, burnt logs and fence post in relation to each other.
24 At trial, Mr Glover received new information as to the orientation of the chicken shed, burnt logs and fence post in relation to the boundary dividing Mr Fawkes' and Ms West's properties. The precise location of the fence post in terms of its orientation to the two properties was important, given that it was an item of interest to Mr Glover.
25 From this orientation and exhibits 6 and 15 at trial, Mr Glover ascertained the location of the burnt fence post as being within the area of origin of the fire ie, the V point. If the V point had been merely in the approximate location of the fence post, then that would not have been new information.
26 Further, although it was not new information at trial that Ms West's property sloped upwards, it was new information to Mr Glover that the slope actually rises from the position of the V point as drawn by Mr Lawrie and Senior Constable Taylor.
27 Armed with all this information, some of which was new to Mr Glover, he then gave oral evidence expressing his expert opinion that the source of the fire was the burnt log. His pre-trial opinion had been limited to the likely cause of the fire.
28 Mr Glover was cross-examined on 30 April and 19 November 2015. He:
1. agreed that, for his pre-trial opinion, he did not have sufficient information to form a specific view as to the actual point of origin of the fire;
2. agreed that, for his pre-trial opinion, he eliminated all other options as being the cause of the fire and determined, on the balance of probabilities, that it was the incomplete extinguishment of the burn-off by Mr Fawkes that was the most likely cause of the fire;
3. agreed that, when he was initially shown the photographs of the chicken shed and logs, including a burnt fence post on the ground along the boundary, the logs and fence post were potential points of interest, and one in particular;
4. agreed that, for his pre-trial opinion, he did not know how the photographs were oriented in relation to the burnt area. Mr Glover said:
The issue with that, at the time that I had those photographs available to me, was I didn't know where that [ie, the logs and fence post on the ground] was in relation to the property. Sorry, in relation to the point that we've discussed earlier with those sketches, and having confirmed that log or that fence post was where the police officer and a fire fighter, I believe, drew those lines, that leads me to strengthen my view that that was the origin of the fire
- and;
5. said that the fence post position was something he previously could not orientate to where he believed the fire originated. However, from exhibits 6 and 15, he was able to do so in relation to the V point. Mr Glover maintained
the location of the log relative to the – the - the sketches provided by these two independent people who were at the scene were – is key information as far as I am concerned. And – and it – and we've also learnt that the log we talk about was at or near that lower point of that V, extending away, and that the slope of the land extends away from that V, and up – up the slope of the – up the property. And also, if we add in the direction of fire travel as witnessed by the police officer, he confirms that the fire was burning away from that point across the – across the Claimant's property.
The interesting information that I've had today was the confirmation of the location of that fallen fence post at the bottom is all burnt out and in relation to the properties, and then also in relation to that, the two sketches that we've been provided with.
They just pinpoint the base of the [indistinct] that I would expect to find had I examined the scene. Those two sketches provide that information.
… both sketches were consistent, in as much as they provide a point, if you like, the two sides of the [indistinct] away from and like I said [indistinct] two people who were at the scene had independently provided those sketches [indistinct] that the area further away from those points [indistinct] across the two sketches, the point that they come from, they're almost identical in location. And now we know that the log that's formed a fence post that has fallen over was at or near that point, they are significant points as far as I'm concerned, as a fire investigator trying to establish where this fire may have started from.
30 In cross-examination, Mr Glover essentially agreed that, in the circumstance of excision of materials from his pre-trial opinion as ordered by the learned magistrate and if he also excluded all information within exhibits 6 and 15 from his knowledge, it would then be necessary to refer back to his instructors to seek further information before providing his opinion as to the likely cause of the fire.
Mr Fawkes' case
31 On appeal, Mr Graham sought to make the point that, prior to trial, and for the purpose of preparing his opinion, Mr Glover had all relevant information to form his opinion, including a large number of photographs showing the boundary, some logs including the fence post on the ground near that boundary, the chicken shed on Ms West's property and other areas of burnt land.
32 Further, Mr Graham submitted that given Mr Glover's concession referred to at [30] above, he did not have enough information upon which to give an expert opinion as to the cause of the fire, either before or at trial. In this circumstance, it was not possible for the learned magistrate to reach a conclusion as to the likely cause of the fire, unless he was able to identify reasons, not known to Mr Glover, for reaching such a conclusion.
33 Appeal ground 1 complains that Mr Glover's pre-trial and trial opinions should not have been relied upon, given that much of the factual evidence upon which his pre-trial opinion was based had been excised from that opinion before Mr Glover gave evidence and that there was no new information provided at trial, such that there was still insufficient material left upon which Mr Glover could give his expert oral opinion at trial. Counsel for Mr Fawkes, Mr C J Graham, sought to rely heavily on the concession by Mr Glover referred to at [30] above.
34 However, it is appropriate to comment here that Mr Glover's concession as to the need for further instructions was only made with the exclusion of information from exhibits 6 and 15, which provide an overview of the V shape area of burnt land on Ms West's property. This then shows the importance of those exhibits.
35 Further, if exhibits 6 and 15 contain information previously known and considered by Mr Glover in his initial report and opinion, then there would have been no need for Mr Graham to request Mr Glover to exclude those exhibits for the purpose of the concession. None of the materials referred to in Mr Glover's pre-trial report, whether excluded therefrom or not, refer to the V shape area of the land.
Ms West's case
36 Ms S Cherry, as counsel for Ms West, said that Ms West's case was made out on the basis that the approach of the learned magistrate was the application of common sense to the facts of the case as he found them to be – March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, followed in Chappel v Hart [1998] HCA 55.
37 It does not matter that the magistrate's chain of reasoning may have demonstrated an error, provided that such error does not of itself constitute an error of law and provided that the same conclusion can be reached on the facts: Australian Broadcasting Tribunal v Bond [1990] HCA 33 [87] – [88]; (1990) 170 CLR 321 (Mason CJ). The learned magistrate did not make any error of law or fact. Even excluding Mr Glover's initial written opinion and his oral opinions at trial, the learned magistrate could have reached the same conclusion as to the likely cause of the fire on the facts proven at trial.
The new evidence
38 It is indisputable that, at trial, there was evidence which was at least new to Mr Glover, being:
1. the V shape of the fire on Ms West's property, with its V point. The trial was the first occasion upon which Mr Lawrie and Senior Constable Taylor drew their sketches which became exhibits 6 and 15 respectively. Mr Glover did not have such an overview until trial. The relevance of the V point was the area of origin of the fire; and
2. the orientation of the burnt fence post and other items, including the fence line, chicken shed and burnt logs to the point, as depicted in exhibits 6 and 15.
39 This new information of the orientation of the burnt fence post relative to the V point enabled Mr Glover to go beyond his pre-trial opinion limited to the likely cause of the fire, such that he could then express the additional opinion at trial as to the source of the fire, or its point of origin, as being the burnt log.
Findings open on the evidence
40 The finding of the learned magistrate, as to the cause of the fire, was open to him on the evidence for the following reasons:
1. Mr Fawkes carried out burning-off on his property the day before the fire;
2. Mr Fawkes' fire licence was not valid for a number of reasons, including the very high fire rating on the day, and which rating was repeated on the following day, being the day of the fire;
3. the duff layer and litter layer on the top of soil can smoulder and, unless properly extinguished, can retain heat and may cause fires which appear to be extinguished, to re-ignite, even days later. The duff and litter layers along the boundary were not minimal. This evidence was not challenged;
4. prior to Mr Fawkes commencing his burn-off, the risk reduction carried out by him was inadequate. His property contained debris which was capable of reigniting. The learned magistrate did not accept the defence evidence as to risk reduction. This finding was not challenged;
5. the burn-off was to about half way along the boundary between the two properties towards Ms West's chicken shed. This was essentially agreed evidence;
6. Mr Fawkes and his father did not carry out an adequate post-fire examination, including of the logs, sticks, fence posts and flammable material on or near the boundary. They did not carry out adequate post-fire extinguishment. These findings were not challenged;
7. the fire occurred on Ms West's property on the following day;
8. the prevailing wind direction was from Mr Fawkes' property towards Ms Wests' property. This was an agreed fact;
9. the fire on Ms West's property came from the direction of Mr Fawkes' land. Mr Lawrie and Senior Constable Taylor gave undisputed evidence of this; and
10. there was no evidence of any other possible explanation for the cause of the fire.
41 In these above circumstances, and without the assistance of expert evidence, the learned magistrate himself was entitled to infer, on the balance of probabilities, that the cause of the fire on Ms West's property was the incomplete extinguishment of the fire on Mr Fawkes' property.
42 Further, the learned magistrate accepted:
11. the evidence from Mr Lawrie and Senior Constable Taylor as to the V shape of the fire as set out in exhibits 6 and 15 respectively. There was no challenge to this evidence;
12. the undisputed evidence as to the V principle;
13. the V point as ascertained from exhibits 6 and 15;
14. the upward slope of Ms West's property from the V point. This does not seem to have been in issue;
15. consistent with the evidence at [40] above, photographs 33 and 34 of exhibit 10 show the V point at the approximate middle of the boundary. This proposition was not objected to at trial or on appeal;
16. Mr Glover's evidence that this area had not been adequately cleared for a safe burn-off. From photograph 35, he identified a fence post as a possible fuel source and as a potential point of interest of the origin of the fire;
17. the orientation of the burnt logs and fence post in relation to the boundary, which in combination with exhibits 6 and 15, put the burnt fence post in the area of origin of the fire at or near the V point, rather than just in the approximate location; and
18. Mr Glover's opinion that, by reference to the V shape pattern in exhibits 6 and 15, which necessarily includes the V point, and the orientation just referred to, the fence post was more likely than not the source of ignition of the fire.
43 The learned magistrate was then able to draw the inference that the subject fire commenced approximately halfway along the boundary separating the two properties. Further still, based on the state of the burnt fence post from photograph 35 and its orientation to the V point from photographs 33 and 34 and exhibits 6 and 15, the learned magistrate was able to infer that the fence post was the source of ignition of the fire on Ms West's property.
Conclusion
44 Appeal ground 1 is based on the learned magistrate making findings based on Mr Glover's expert evidence.
45 Mr Graham submitted that Mr Glover had all the information he required prior to trial when preparing his written opinion. The submission is that Mr Glover did not receive any new information at trial.
46 However, based on information new to Mr Glover at trial, in particular the V shape, the position of the burnt fence post and the orientation of that position to the V point, the learned magistrate was able to rely upon Mr Glover's expert oral opinion as finally provided at trial. The new information strengthened his original pre-trial opinion as to the likely cause of the fire and enabled him to express an opinion as to the source of the fire.
47 Mr Glover did not provide a supplementary written opinion between court appearances in April and November. He was under cross-examination from the time of the adjournment of the trial for a six month period. He did however give his further oral opinions at trial, based on the new information ascertained by him during the course of the trial, and he did so before the trial was adjourned.
48 The learned magistrate indicated at [65] and [66] of his reasons that he had assessed Mr Glover's expert evidence and on the basis thereof, and on facts he had already found to have been proven, he made certain factual findings and drew certain inferences. He has not made any error of law or fact. Even if he has, the same conclusion as to the likely cause of the fire can be reached on the facts as outlined above.
49 The challenge to Mr Glover's opinion, and the learned magistrate's reliance upon it, must be rejected.
50 Appeal ground 1 is dismissed.
51 It was conceded by Mr Graham, that if the first ground of appeal failed, then the appeal should fail. The appeal is dismissed.
0
5
1