Higgins v Brinkworth; Justin v Brinkworth; Trimboli v Brinkworth; Copping v Brinkworth
[2025] SASC 104
•26 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HIGGINS & ORS v BRINKWORTH & ORS; JUSTIN & ORS v BRINKWORTH & ORS; TRIMBOLI & ORS v BRINKWORTH & ORS; COPPING & ORS v BRINKWORTH & ORS
[2025] SASC 104
Judgment of the Honourable Justice Stein
TORTS - NEGLIGENCE - DUTY OF CARE: EXISTENCE - FACTORS DETERMINING EXISTENCE OF DUTY
LIMITATION OF ACTIONS - GENERAL MATTERS - STATUTES OF LIMITATION GENERALLY
On 11 January 2021, a bushfire ignited on a rural property known as Westlands. The fire burned in a south-easterly direction destroying more than 14,000 hectares of land, structures, livestock and fencing and threatening the township of Lucindale before it was contained the next day. Four groups of adjacent land holders and residents claiming to have been adversely affected by the fire brought claims in negligence and nuisance against the owners of Westlands and the executors of the estate of the late Mr Thomas Brinkworth, one of the owners.
The trial was limited to the question of liability. The critical issue was the cause of the fire.
The applicants contended that the fire originated from a vegetation heap which was lit in winter 2020 and not sufficiently extinguished such that it continued to internally smoulder for a of six months until it transitioned into flaming combustion in dry, hot and windy conditions on 11 January 2021 (“active heap theory”). The respondents contended the active heap was not lit in winter 2020 and relied on principles of fire behaviour to demonstrate that it was not possible for the fire to have started at the active heap and moved to a location in which it was photographed by the first responder from the CFS.
The respondents contended that the fire emanated from a tree which was hit by lightning in November 2020 and which smouldered internally within its roots or core for 62 days until it transitioned into flaming combustion in the dry, hot and windy conditions on 11 January 2021 (“lightning tree B theory”).
The respondents contended the applicants failed to establish on the balance of probabilities that the active heap was the cause of the fire.
The parties’ experts agreed that all other plausible fire ignition sources had been eliminated and the active heap theory and lightning tree B theory were the only two possible sources of the fire.
Held: The applicants are entitled to judgment against the respondents in amounts to be assessed. The applicants have proved on the balance of probabilities:
1.A lightning strike to tree B was not a plausible or probable cause of the bushfire.
2.The active heap was constructed in a manner which gave rise to a risk of long-term smouldering combustion.
3.The active heap was lit in mid-2020.
4.Smouldering combustion continued within the active heap after it was lit until 11 January 2021.
5.In the hot and windy conditions on 11 January 2021 smouldering materials within the active heap were exposed to oxygen resulting in conversion to flaming combustion which contacted the surrounding fuel bed.
6.The flaming combustion lit the surrounding fuel bed, starting the fire which spread under the influence of wind to become the Lucindale fire.
7.The respondents failed to construct a fire break around the active heap or to take steps to monitor and extinguish the active heap after it was lit and prior to the commencement of the bushfire season.
8.If the active heap had been constructed in accordance with the CFS Vegetation Pile Burning Code of Practice the risk of smouldering combustion would have been significantly reduced, if not eliminated. Fire breaks would have reduced the risk and appropriate monitoring would have identified the active heap as still burning, resulting in steps to properly extinguish it before the commencement of the bushfire season.
9.The respondents breached their duty of care owed to the applicants which breaches relevantly caused the bushfire and the harm suffered by the applicants.
10.The respondents are liable in negligence and in nuisance.
Uniform Civil Rules 2020 (SA) r 74.10; Civil Liability Act 1936 (SA) ss 31, 32(1), 32(2), 34(1), 35; Fire and Emergency Services Act 2005 (SA) s 105F(1); Environment Protection Act 1993 (SA); Environment Protection Regulations 2009 (SA); Survival of Causes of Action Act 1940 (SA) s 4; Limitation of Actions Act 1936 (SA) s 48, referred to.
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Lang v The Queen (2023) 278 CLR 323 ; Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (reg’d) [2002] SASC 118; Wallace v Kam (2013) 250 CLR 375; Briginshaw v Briginshaw (1938) 60 CLR 336; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246; Henderson v Queensland (2014) 255 CLR 1; Jones v Dunkel (1959) 101 CLR 298; United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514; Langmaid v Dobsons Vegetable Machinery Pty Ltd (2014) 24 Tas R 18; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines (1952) 85 CLR 352; Nulty v Milton Keynes Borough Council [2013] EWCA Civ 15; Burnie Port Authority v General Jones (1994) 179 CLR 520; Hargrave v Goldman (1963) 110 CLR 40; Marsh v Baxter (2015) 49 WAR 1; Kraemers v Attorney-General (Tas) [1966] Tas SR 113; Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 22) [2019] NSWSC 1657; Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248, considered.
HIGGINS & ORS v BRINKWORTH & ORS; JUSTIN & ORS v BRINKWORTH & ORS; TRIMBOLI & ORS v BRINKWORTH & ORS; COPPING & ORS v BRINKWORTH & ORS
[2025] SASC 104Civil
STEIN J.
Table of Contents
Overview
PART A: Background
Location of the general area of origin of the fire
Weather conditions leading up to and on the day of the fire
Rainfall in November 2020
Rainfall in January 2021
Weather conditions on 11 January 2021
Respondents’ farming operations practices
Mrs Erika Materne
Mr Angas Brinkworth
Mr Brenton Materne
Mr Antony Mills
Mr Toby Degoumois
PART B: Principles of fire behaviour and investigation
Cheney and Sullivan text
Cheney, Gould and Catchpole paper
The NWCG Guide
The NFPA Guide
Steensland paper
Mäkelä research
Parker and Babrauskas paper
PART C: Investigation of the fire
Brevet Sergeant Karl Downs
Mr Brett McLaren
Detective Brevet Sergeant Dennis McManus
Brevet Sergeant Lisa McGregor
Ms Roberta Rice
Investigation report
Ms Rice’s evidence
Ms Elizabeth Pryor
PART D: Experts and their qualifications
Mr Richard Woods’ experience
Dr Jonathan Marsden-Smedley’s experience
Mr Roger Fenwick’s experience
Mr Timothy Cousins’ experience
PART E: Expert reports
Mr Richard Woods’ first report
Dr Jonathan Marsden-Smedley’s first report
Mr Roger Fenwick’s first report
Mr Timothy Cousins’ first report
Mr Timothy Cousins’ amended supplementary report
Dr Jonathan Marsden-Smedley’s reply report
Mr Richard Woods’ supplementary report
Mr Timothy Cousins’ appendices to the conclave
Mr Timothy Cousins’ supplementary report to the conclave
Joint expert report
Mr Roger Fenwick’s supplementary report
Mr Richard Woods’ rebuttal report
Dr Jonathan Marsden-Smedley’s rebuttal report
PART F: Methodology of fire investigation
Dr Marsden-Smedley’s evidence in relation to scientific process
Mr Woods’ evidence in relation to scientific process
PART G: Evidence relevant to competing theories
Was the active heap lit in mid-2020
Paddock locations
Satellite images
Lightning tree B theory
Dr Jonathan Marsden-Smedley’s evidence
Mr Richard Woods’ evidence
Mr Timothy Cousins’ evidence
Mr Roger Fenwick’s evidence
Active heap hypothesis
Mr England’s observations of the weather at the fire ground
Dr Jonathan Marsden-Smedley’s evidence
Mr Richard Woods’ evidence
Mr Timothy Cousins’ evidence
Mr Roger Fenwick’s evidence
PART H: Assessment of witnesses
Lay witnesses
Mr Ronald Bennier
Detective Brevet Sergeant Dennis McManus
Brevet Sergeant Karl Downs
Brevet Sergeant Lisa McGregor
Mr Brett McLaren
Ms Roberta Rice
Ms Elizabeth Pryor
Mrs Erika Materne
Mr Angas Brinkworth
Mr Brenton Materne
Mr Antony Mills
Mr John Finnis
Mr Robert England
Mr Toby Degoumois
Expert witnesses
Relevant principles
Dr Jonathan Marsden-Smedley
Mr Richard Woods
Mr Timothy Cousins
Mr Roger Fenwick
PART I: Causation
Analysis of lightning tree B theory
Evidence of lightning strikes
Absence of lightning strike damage
Wet lightning
State of tree B before and after the fire
Size of tree B
Mechanism of escape of fire
Fire pattern indicators
Venting
State of tree B’s roots
Conclusion
Analysis of active heap theory
Was the active heap lit?
Was the investigation methodology flawed?
Mr Cousins’ modelling
Backing fire spread rate calculations
Reliability of fire pattern indicators
What do the fire pattern indicators show?
Composition and size of the active heap
Did the construction of the active heap give rise to the potential for smouldering combustion?
Did the active heap undergo long-term smouldering combustion?
Could smouldering combustion continue within the active heap for six months?
What mechanism enabled transition from smouldering to flaming combustion?
PART J: Negligence and nuisance – remaining issues
Negligence
Did the respondents owe a duty of care to the applicants?
What was the requisite standard of care
Did the respondents breach their duty of care and, if so, with what consequences?
Nuisance
Limitation period
Conclusion and orders
Overview
On Monday 11 January 2021, a bushfire started on a rural property known as “Westlands”. The fire spread from Westlands and burned in an approximately south-east direction until it was contained on 12 January 2021 near the town of Lucindale. The fire caused damage to property in its path.
Westlands was owned by Mr Thomas “Tom” Brinkworth and Mrs Patricia Brinkworth. Mr Thomas Brinkworth died in late 2020 before the fire. In four separate actions, four groups of applicants, who generically may be described as neighbours of the Brinkworth family, seek damages for losses they allege they have suffered as a result of the negligence or nuisance of the respondents.[1] A separately constituted class action was settled prior to the commencement of the trial.[2] The respondents are members of the Brinkworth family and the executors of the estate of the late Thomas Brinkworth.
[1] Higgins & Ors v Brinkworth & Ors (CIV-21-011444) (“Higgins Applicants”); Justin & Ors v Brinkworth & Ors (CIV-21-011906) (“Justin Applicants”); Trimboli & Ors v Brinkworth & Ors (CIV-21-012765) (“Trimboli Applicants”); Copping & Ors v Brinkworth & Ors (CIV-22-003113) (“Copping Applicants”). I refer to these actions compendiously below as the “Subrogated Claims”.
[2] Kurray v Brinkworth & Ors (CIV-21-009439) (“Class Action”).
The trials, heard together, were limited to whether the respondents were liable to compensate the applicants for the losses they suffered as a result of the fire. The respondents accepted that the applicants suffered harm but disputed any liability to compensate the applicants for such harm.
The critical issue dividing the parties was the cause of the fire. The applicants’ case on causation, in essence, was that the fire was caused by a vegetation heap or pile (referred to as the “active heap”) which had been lit in the winter months of 2020 but not properly constructed or properly extinguished at the time or before the start of the fire danger season. On the applicants’ position, smouldering combustion within the active heap continued from when the heap was lit and then, in hot, dry and windy conditions on 11 January 2021, reignited into flaming combustion which escaped into surrounding dry grass and started the fire. I will refer to the applicants’ contended cause as the “active heap theory”.
The respondents denied that the active heap was lit in the winter of 2020 and disputed it was the cause of the fire. The respondents contended the fire was caused by a lightning strike in November 2020 which hit a tree (referred to as “tree B”) resulting in smouldering combustion within the roots or core of the tree. The smouldering combustion was said to convert to flaming combustion in the conditions on 11 January 2021, which escaped and started the fire. I will refer to this potential cause as the “lightning tree B theory”. The respondents’ position was that the applicants failed on the balance of probabilities to establish the active heap was the cause of the fire.
Expert evidence constituted a substantial and critical part of the trial.
The applicants relied on two bushfire investigation experts, Dr Jonathan Marsden-Smedley and Mr Richard Woods, both of whom opined that the active heap was a source of smouldering combustion which escaped to flaming combustion in the conditions of 11 January 2021, causing the fire. The applicants disputed the lightning tree B theory. On the applicants’ case, even if lightning had struck tree B, there was insufficient fuel in tree B to maintain smouldering combustion for 62 days from the date of the lightning strike to the date of the fire and the state of tree B, including its green canopy of leaf, was inconsistent with internal combustion.
The respondents’ expert, Mr Timothy Cousins, identified the lightning tree B theory with which Mr Roger Fenwick, the other expert called by the respondents, agreed. Mr Cousins and Mr Fenwick excluded the active heap as the potential ignition source on the basis that it was physically impossible for a fire which started at the location of the active heap to have travelled backwards into the wind to the point it had reached when captured by the first responder to the fire, Mr Christopher Robert England, in a series of photographs taken at 1:18 pm on 11 January 2021.
The experts agreed that all other plausible fire ignition sources had been eliminated, that is, the only two possible sources were tree B or the active heap. The parties’ evidence and submissions thus centred on two only potential competing causes of the fire. Nevertheless, determination of the success or otherwise of the applicants’ case and the respondents’ potential liability does not reduce to assessing which of the active heap hypothesis and the tree B hypothesis is more likely. The applicants must prove on the balance of probabilities that the active heap was the source of the ignition, and, if so, the respondents were relevantly negligent or caused a nuisance which resulted in the applicants’ loss.
For the reasons I set out below, the applicants have proved on the balance of probabilities that:
·the active heap was lit in mid-2020;
·the active heap was constructed in a way which did not meet the requirements of the CFS Vegetation Pile Burning Code of Practice (“CFS Code”);[3]
[3] Exhibit TB1 – Court book (“CB”) 76.
·the active heap was constructed in a way which facilitated smouldering combustion within the core of the active heap;
·steps were not taken to ensure the active heap was fully extinguished after it was lit or before the fire danger season commenced;
·there were no fire breaks around the active heap;
·the weather conditions on 11 January 2021 were hot, dry and windy;
·those conditions resulted in material which had been smouldering internally in the active heap during the intervening period since it was lit becoming exposed, thereby coming into contact with oxygen;
·the smouldering combustion converted into flaming combustion;
·the flaming combustion ignited surrounding dry grass;
·the flaming combustion spread in the hot, dry windy conditions causing the ensuing fire;
·the respondents owed a duty of care to the applicants;
·the respondents breached their duty of care to the applicants;
·the respondents’ breaches of their duty of care were the cause of the fire;
·the respondents created a nuisance which was the cause of the fire;
·the applicants thereby suffered harm;
·the respondents are liable for losses caused by the fire.
I commence with a narrative explanation of background matters which were not in contention in the trial and then turn to address the disputed evidence of witnesses.
PART A: Background
There was no dispute that the fire commenced on 11 January 2021 on Westlands. The first report of fire to Triple Zero was at 12:30 pm and the Country Fire Service (“CFS”) were alerted at 12:37 pm by several calls reporting smoke in three separate locations near the Mount Scott Conservation Park (“Conservation Park”). The CFS efforts to control and contain the fire included use of aerial bombers. The fire became very fast moving and more than 250 firefighters were engaged in attempts to slow the fire and protect the town of Lucindale. The fire burned in a south to south-east direction towards Lucindale from the area of origin and ultimately destroyed 14,074 hectares of land, 27 structures, about 7,000 livestock and kilometres of fencing. On 12 January 2021 at 12:30 pm the fire was classified as contained. The fire scar is shown in the following map.[4]
[4] CB48, p 2074.
Location of the general area of origin of the fire
The CFS responded to the reports of smoke and the first responder to arrive at the scene was Mr England. He took a number of photographs commencing at about 1:18 pm. Those photographs and his evidence about the state of the fire ground assumed considerable importance in the trial and I address them separately below.
The CFS engaged in suppression activities including at the heel of the fire to prevent it travelling into the Conservation Park.
The general area of ignition of the fire was in a paddock on Westlands in a location to the east of the south-eastern border of the Conservation Park.
Westlands is oriented approximately north-south. It predominantly lies below the southern base of the Conservation Park with the northern tip of Westlands adjacent to the Conservation Park on its eastern side. This northern tip correlates approximately with the suspected area of origin of the fire. A property called Conkar Ridge, which is not owned by the Brinkworths, lies further to the east of the general area of origin. The general area is depicted below.[5]
[5] CB12, p 356.
The general area of origin was in a paddock located in a slight valley between two ridges approximately to the east and west and running uphill to the northern side. There were a number of vegetation piles in various locations across the paddock.[6]
[6] Mr Angas Brinkworth gave evidence that he thought the paddock was paddock 13. I address this evidence later in my reasons.
The paddock in which the fire started was largely grassland with a number of trees, primarily eucalypt on sandy soil, on a limestone base.
Westlands is used for broad acre sheep and cattle farming operations. Its total area is 3,103 hectares and, as at 2020-21, it carried thousands of sheep and hundreds of cattle. The farm manager of Westlands at the time was Mr Toby Degoumois.
A number of features in the general locality of the origin of the fire were repeatedly referred to in evidence including the “geolocated tree” and the “cool heap” in addition to the active heap and tree B. The location of an alternative potential ignition source initially identified but later excluded (referred to as “origin A”) was also referred to at times. The locations and distances between them are important in understanding the evidence and submissions. I describe those features and their locations separately below.
Weather conditions leading up to and on the day of the fire
Evidence about the weather conditions prior to and on 11 January 2021 was contained in records of the Bureau of Meteorology (“BOM”). The first responder to the fire, Mr England, also gave evidence about the local weather conditions he experienced on the fire ground. I address Mr England’s evidence about his experience of the weather on the fire ground separately in Part F.
There are a number of BOM automatic weather stations in the general vicinity of Lucindale, including at Cape Jaffa, Coonawarra, Naracoorte, Padthaway, Keith and Robe. Those stations record temperature, relative humidity, wind direction, wind speed and so on.
The weather conditions in the lead up to 11 January 2021 were relevant to the respondents’ case which relied on a storm in November 2020 as the source of lightning which was said to have struck tree B. This was because the volume of rain associated with lightning striking a tree impacted the potential for ignition and the likelihood of lightning leaving visible damage.
Weather conditions were also relevant to the state of the area of origin on 11 January 2021. Each of the lightning tree B and active heap theories relied on the weather conditions that day giving rise to the conversion from smouldering to flaming combustion and the subsequent escape of that fire.
Rainfall in November 2020
Daily rainfall observations at 9:00 am on 11 November 2020, the day after the storm and lightning strikes, recorded rainfall between 2.6 millimetres and 6 millimetres for the four closest weather stations near Lucindale. Rain up to 4 millimetres was recorded in Naracoorte on 12 November 2020.
Rainfall in January 2021
Apart from 0.4 millimetres of rain recorded in Naracoorte on 15 January 2021, no rainfall was recorded between 1 January and 16 January 2021. No rainfall was recorded at Coonawarra between 1 January and 15 January 2021. Some rain was recorded on 15 January 2021. The automatic weather observations for Padthaway South recorded no rain between 1 January and 15 January 2021.
Weather conditions on 11 January 2021
BOM records, including from the Naracoorte and Keith automatic weather stations, recorded temperatures ranging between about 35.3 and 38.9 degrees Celsius between about 12:00 pm and 4:30 pm on 11 January 2021. The Naracoorte weather station recorded low relative humidity, between about 10 to 13 per cent, and winds generally from a north-westerly direction between 35 to 52 kilometres per hour. The Keith weather station recorded temperatures from about 36.7 to 39.4 degrees Celsius; low relative humidity of between about 10 to 12 per cent, and winds generally from a north to north-westerly direction to a west to north-westerly direction, between 31 to 35 kilometres per hour.
Based on weather information, the grassland fire danger index on 11 January 2021 peaked at over 70 at 4:00 pm.[7]
[7] CB352.
I now turn to address the evidence which was, at least in some respects, the subject of dispute.
Respondents’ farming operations practices
Mrs Erika Materne
Mrs Erika Materne was the office manager of Watervalley Pty Ltd (“Watervalley”) from January 2020 and at the time of the fire. Watervalley was, at January 2020, the operating entity for all of the properties owned by Mr Thomas Brinkworth and Mrs Patricia Brinkworth. Their son, Mr Angas Brinkworth, was effectively the operations manager. Whilst Mr Thomas Brinkworth was alive, he retained control of Watervalley and was responsible for most of the decision making. After Mr Thomas Brinkworth died, Mr Angas Brinkworth was appointed managing director of Watervalley and managed its operations.
Mrs Materne set up a workshop with the CFS, which took place in October 2020, to ensure staff were capable of efficiently responding to, and preparing their homes and properties, for fire emergencies. During the workshop, the staff were provided with a CFS handbook and various resources.
Mrs Materne deposed to becoming aware of the fire on receiving a call from Mr Mills, a farmhand at Westlands. Mrs Materne sent text messages to various people, including Mr Angas Brinkworth and Mr Degoumois. After the fire, Mrs Materne liaised with South Australia Police (“SAPOL”) and CFS.
Mrs Materne gave evidence that there was no particular policy about what was to be done with company property or documents when an employee left. She was asked questions about her communications with Mr Degoumois, among other things, regarding whether Mr Degoumois kept a work diary of activities on the farm. Mrs Materne was not aware of what happened to Mr Degoumois’ diary. Mr Degoumois never gave her photographs he said he took of lighting vegetation piles even though Mrs Materne asked for them several times.
Mrs Materne said there were no documented procedures for how the farms were to be run. There were no standing policies and procedures on how operations worked. A quarterly magazine was distributed to staff which included reminders of matters like the commencement of the fire danger season, but Mrs Materne did not recall any particular instructions on what people were supposed to do.
Mrs Materne was not aware of any written manuals, procedures or policies for the construction, burning and monitoring of vegetation burn off piles on the property. While she had been exposed to burning piles, including as a CFS member, she did not have any knowledge of how they were constructed or the behaviour of fires in vegetation burn off piles. Mrs Materne could not specifically recall the CFS Code and did not recall whether the CFS Code featured in the fire safety workshop in October 2020. To her knowledge, the CFS Code was never handed out to farm managers or employees. Mrs Materne could not recall the source of information in an email sent by her in May 2022 in which she stated that having fires smoulder underground for three months or more was not uncommon. That information did not come from direct firsthand experience with burn off piles.
Mr Degoumois had messaged Mrs Materne to say “this was affecting him in more ways than one” and he did not sleep some nights wondering about this. Mrs Materne could not recall if that was the extent of her communications with him about his concerns.
Mrs Materne was familiar with a hand drawn plan of Westlands which she thought was distributed to managers. She confirmed that paddock 11 on the hand drawn map was at the northern point of Westlands.
Mrs Materne was involved in the preparation of a declaration of events signed by Mr Degoumois on 2 March 2021. As she was told she needed to make sure Mr Degoumois made a declaration about what had happened, she called Mr Degoumois into the office, helped him type up the declaration and had him confirm it was true and correct and sign it. Mr Degoumois recounted the events to her and she typed them up and Mr Degoumois signed the declaration in front of her when he finished.
The applicants contended that relevant timesheets had not been discovered. Mrs Materne was cross-examined about timesheets and their content, including who filled out the timesheets and the nature of the information contained in them. She did not review the recorded activities but only the hours worked. Mrs Materne recalled reviewing timesheets for both Mr Degoumois and Mr Mills who were employees. Mr Degoumois was the fulltime farm manager of Westlands. In re-examination, Mrs Materne confirmed that Mr Degoumois was employed on a full time basis and Mr Mills was employed on a part time basis. She did not recall whether they were paid a salary or an hourly rate.
Mr Angas Brinkworth
Mr Angas Brinkworth gave evidence about the conduct of farming operations. He stated that his father, Mr Thomas Brinkworth, was actively involved in giving directions about the manner in which farm activities were conducted. The managers of the various properties had the necessary experience to perform routine seasonal activities without instructions. Farm managers would take care of the properties and instructions were given verbally on how particular activities were to be undertaken. Mr Thomas Brinkworth would speak to various farm managers approximately weekly for progress reports. No one required instructions about unexpected events such as fires because it was part of living in a rural area.
Mr Angas Brinkworth said clearing fallen timber into piles to increase the area of grazing land for stock and firing piles of timber in winter was widespread in the south-east. He observed piles located in open areas but stated that if piles were too close to a tree or a fence line, it was not accepted practice to light such piles. He thought it would be nonsensical to light timber in close proximity to trees in farm paddocks. Mr Angas Brinkworth said they were very conscious about fire risk and it guided much of what they did. For example, it was standard practice to modify farming activities to accommodate seasonal conditions like high fire danger days.
Mr Angas Brinkworth said it was reasonably common for machine operators to push up dead trees and branches to clear the pasture, pile them up and, when dry, burn them. He was not specifically told anything about how piles should be constructed, including their size or make up. He had overheard his father tell machine operators to not use the blade to push soil into the piles when they were being formed so that the piles would burn better. Mr Angas Brinkworth was not aware of any written instructions, policies or procedures regarding building or burning piles.
Mr Angas Brinkworth had witnessed burning piles probably hundreds of times and he thought the active heap was reasonably typical of other piles he had seen burned over the properties. When asked whether or not he received instruction from Mr Thomas Brinkworth about the right way to monitor a fire after the burn, Mr Angas Brinkworth responded that, until more recently, he did not think it was ever considered a concern due to the time of year. He was not aware of his father giving instructions to employees to check burn piles before the fire danger season to ensure they were out. He did not recall any discussion about the possibility of burn piles continuing to smoulder, saying it was extraordinarily uncommon to suggest smouldering fires underground continue for three months or more. He had not had any conversations with employees or contractors about smouldering fires or ensuring safeguards were in place to avoid them. He was not aware of anyone touching a pile or digging with a spade to see whether a pile was smouldering and he had not instructed anyone to do so. It did not seem to be a risk anyone was concerned about. Mr Angas Brinkworth did not think he had seen the CFS Code before the bushfire.
When asked if he recalled looking at timesheets for Mr Materne, a manager of some Brinkworth properties, Mr Angas Brinkworth responded that if Mr Materne was on a wage, he would not have timesheets but Mr Materne kept timesheets because he was paid on an hourly rate. Mr Angas Brinkworth did not know whether a particular entry on 13 June 2020 in Mr Materne’s timesheet which referred to activities “at Westlands … burning timber” meant Mr Materne was involved in burning timber at Westlands.
Mr Angas Brinkworth thought the active heap and tree B were in paddock 13 as depicted on the hand drawn map of Westlands.
In re-examination, Mr Angas Brinkworth clarified that the hundreds of burn piles he had seen were not all on Brinkworth properties but generally within the location.
Mr Brenton Materne
Mr Brenton Materne managed six of the Brinkworth properties. One was immediately north of Westlands and another immediately east of Westlands. Mr Materne described burning off piles of timber formed by collecting and grouping loose tree limbs and dead wood to clear land to provide optimum grazing area for stock as a typical winter activity. He assessed appropriate timing for burning piles based on weather and the conditions of the paddocks, which had to be green, and he would do burn offs as early in the season as possible.
At the Mount Scott property, one of the properties he managed, the practice was to push material into a pile using a front-end loader, generally in areas of open ground. If the pile was too close to a structure, it would not be lit and would be left unburned or moved. Mr Materne would assess a pile in relation to its size and location, light it early in the morning and monitor the burn during the day. He would check the pile the next morning. As the weather warmed up, he would ensure any burn piles were checked for continuing smouldering and would spread out the piles to extinguish them. He also always checked the piles on the first hot day where there was a fire danger. Mr Materne was not aware of any CFS guidelines or requirements with respect to burn piles.
Mr Materne said Westlands had a large number of burn piles, many of which had remained unburned for a lengthy period. Burn piles on Westlands were located through the hills in the area burnt by the fire. Some were burned the previous year. Those piles were spread through different paddocks. Mr Materne was used to creating and burning piles annually but said at Westlands it might be done every second or third year. He did not necessarily report to Mr Thomas Brinkworth or Mr Angas Brinkworth about burn piles.
When asked whether or not there were any protocols associated with how you might create or construct or burn a burn pile, Mr Materne said it was second nature given his previous 20 years in the industry in which he would have been burning about 30 piles every year. He had also been a member of the CFS. Mr Materne could not recall whether he was aware of the CFS Code. He said he did not necessarily agree with the statement in the CFS Code that vegetation pile burning has led to the start of numerous fires as, of all the fires he had been to, about 80 per cent were started by lightning.
Mr Materne said piles would be constructed by a loader driver pushing the piles up for the farm managers. There were no particular policies or guidelines that Mr Materne followed when constructing or observing a pile being constructed and it was based on personal experience. From a safety perspective, Mr Materne said paddocks should be green, there should be suitable weather and there should be a large bare area around the pile, otherwise it would not be safe. He would not burn green trees as they would likely remain after the fire had burned. Mr Materne thought probably the only time the size of a pile would be an issue was if it was located near trees or if it was approaching a weekend so he would not be available to monitor it afterwards. The average size pile he would have lit would have been eight metres across and two to three metres high. He might light five to six piles at a time, depending on how far apart they were. Most fires Mr Materne lit would fully burn within one day. He liked to have the fire cool enough that he could get to the edge of the fire and throw in any small pieces that failed to burn so they were fully burnt. He was quite diligent about going back to make sure everything was burnt.
Mr Materne kept a timesheet of the hours he worked. Mr Materne was not sure whether the reference in his timesheet on 13 June 2020 was a reference to burning timber on Westlands. Mr Materne assisted Mr Degoumois from time to time. He recalled burning timber at Westlands in the hills north of the homestead, probably in paddocks 16 and 17. He was relatively confident he did not do any burning in Westlands in 2020, although he did in 2019. Mr Materne thought perhaps they were burning piles in Westlands in 2020 because he recalled seeing smoke in the hills from paddocks 19 through to 11. He did know which piles were lit in the winter of 2020.
Mr Antony Mills
Mr Antony Mills was present when machinery operators pushed timber to prepare piles but did not give them instructions about how to do so. Mr Thomas Brinkworth never gave instructions about how burn piles were to be constructed to avoid long-term smouldering, there were no written procedures or policies about how such things had to be done and it was generally left to the manager to make those decisions. Mr Mills said he discussed with Mr Degoumois how to burn piles and they generally spoke about monitoring piles. He could not give an idea of how long afterwards they would check piles because every pile was different.
Mr Mills could not recall seeing the CFS Code.
Mr Mills said burning activity was conducted over a period of time in 2020.
Mr Mills was taken to a statement in his affidavit in which he referred to taking everything into consideration in determining whether it was safe to light a pile and making sure there was a two to four metre clearance around the base of the pile. He said those were just his own thoughts about doing things and not something he recalled discussing with Mr Degoumois. Mr Mills said piles were usually no more than three to four metres in diameter and he would make a two to four metre clearance as the paddock was lush green. Mr Mills said he observed machines pushing timber into piles, creating a clearance as they worked. Mr Mills had not stopped and watched a machine operator forming a burn off pile. He agreed that between heaping up a pile and burning it, grass may grow back around the pile. He said generally they would scrape the area themselves to form a clearance but agreed they did not have their own loader in 2020. In 2020 he did not call an operator to return to make sure there was a clearance around piles.
I address Mr Mills’ evidence on the topic whether the active heap was lit in mid-2020 separately below.
Mr Toby Degoumois
Mr Toby Degoumois said he kept a work diary but it would not have included information about burn offs. He threw it away after he left Westlands.
I address separately below Mr Degoumois’ evidence concerning whether the active heap was lit in mid 2020.
PART B: Principles of fire behaviour and investigation
The parties were not in dispute about certain aspects of the principles of fire behaviour and investigation but others were hotly contested and of considerable importance to the question of causation. Counsel referred to and cross-examined the experts on passages of a number of relevant texts, guides and papers. I set out the relevant aspects of those materials to assist in understanding the evidence.
Cheney and Sullivan text
A text entitled “Grassfires: Fuel, weather and fire behaviour” authored by Cheney and Sullivan (“the Cheney and Sullivan text”)[8] was referred to as a “bible” on the subject of fire behaviour. The Cheney and Sullivan text explains some fundamental principles which I summarise below.
[8] Phil Cheney and Andrew Sullivan, Grassfires: Fuel, weather and fire behaviour (CSIRO Publishing, 2nd ed, 2017).
The physical structure of the fuel bed determines fire behaviour. In grassland fires, the continuity of the fuel bed is the main characteristic that influences the spread of fire. Flame height is mostly influenced by the height of the grass and fire intensity is predominantly dependent on fuel load. The main ingredient in vegetation fuel is cellulose. When heat is applied, the fuel first dries out, then breaks down. If heating is slow and the temperature remains below about 250 degrees Celsius, the material will dehydrate and char, producing charcoal. If heating is fast and the temperature is higher than about 250 degrees Celsius, the cellulose produces a flammable compound which can in turn decompose into a range of flammable gasses. These gasses ignite and combust to produce flames which release heat. The heat produced will raise the temperature of adjacent unburnt fuel. After flaming is completed, the charcoal compounds or residual carbon left over from incomplete pyrolysis may combine with oxygen, resulting in smouldering combustion that can produce significant heat but little flame.
A fire that starts from a point under a steady wind will form a roughly elliptical shape. The front of the fire is referred to as the head fire. The flames are blown towards the fuel which ignites at the top and progressively burns down into the lower layers. The back of the fire is referred to as the backing fire. The backing fire moves into the wind with the flames leaning over the burnt ground. Backing fires ignite the fuel bed at or near its base and burn slowly but efficiently. The sides of the fire are referred to as the flanks of the fire. The edge of the flanking fire is generally parallel to the wind direction, meaning the flames lean generally along the flank. A major characteristic of a flanking fire in grass fuels is that it can become a heading fire and a backing fire in response to changes in wind direction and will have attributes of each.
In moving fires, different fire types occur at different positions along the perimeter. At different times, heading fires, flanking fires and backing fires may occur at any location around the fire perimeter, depending on fluctuations in wind direction.
All fires increase their rate of spread after ignition until they reach a quasi-steady rate or average rate of spread for the prevailing weather conditions. The rate of spread will remain the same while the average wind speed remains constant. The rate of spread will depend on wind speed and the width of the head fire at a constant fuel moisture content. If a fire is not affected by changes in wind direction it will maintain a narrow head fire. The head fire width required for a fire to attain its potential maximum rate of spread increases with increasing wind speed. The time a fire may take to reach its quasi-steady rate of spread can vary greatly. The time taken to reach the quasi-steady spread depends on fluctuations in wind direction. The growth of a fire over time cannot be accurately predicted
The shape of a free burning fire is largely determined by wind speed, especially in the early stages of the growth of the fire. The fire will be more elongated and narrow in shape when the wind is stronger. Conversely, the fire shape will be wider if the wind speed is lower. A fire burning in no wind will have a circular perimeter. If wind direction varies, the length to breadth ratio of the fire will be lower. Fuel is discontinuous if there are bare earth areas between clumps of grass. Fuel continuity is the major fuel characteristic which influences fire spread. The cured state of grassland also has a major effect on fire spread. When grasslands are more than 95 per cent cured, they have almost reached their full potential for fire spread.
The most dynamic variable influencing grassfire behaviour is wind. According to the Cheney and Sullivan text, wind speed fluctuates widely over short periods and varies with height above the ground. It is important to use the same height for the measurement of wind speed above ground when relating wind speed to fire spread. Wind speed has a dramatic effect on heading fires but little effect on fires backing into the wind. The authors state the backing rate of spread is influenced by fuel moisture and strongly affected by minor changes in fuel continuity which have no influence on the forward rate of spread.
The factors which may influence spread rate of backing fires was a significant topic of cross-examination which I address separately below.
Fires burning uphill burn faster than fires on a level ground. There is a complex interaction between wind and slope. Hills interfere with the flow of the wind field changing the speed, direction and turbulence of the wind. Wind speed increases with height above the ground.
The Cheney and Sullivan text states that grassfires can appear highly erratic with behaviour that is difficult to predict and is variable. Fires respond to changes in fuel and weather in different ways and those factors are highly variable across the landscape and over time. Rapid changes in wind direction and wind speed can immediately change grassfire behaviour. Wind can vary greatly, both in time and location, and sometimes at locations that are close to each other. The variation is a result of turbulence embedded in the wind flow that forms lulls and gusts. Grassfires respond almost immediately to changes in wind speed and direction. Fires can show a rapid increase in rate of spread in response to frequent changes in wind directions.
According to the Cheney and Sullivan text, an understanding of how grassfires burn can help an investigator recognise fire patterns and point them to the origin of a fire. Eyewitness observations and physical evidence alone can make it difficult to reconstruct fire spread. When investigating only the cause and origin of the fire, the Cheney and Sullivan text recommends considering information over the fire’s life to help ensure conclusions are consistent with observations made elsewhere and with known patterns of fire behaviour. The authors recommend the investigator draw together as much information as possible to explain how a fire starting at a particular location could logically develop under the prevailing wind conditions to burn out the area impacted.
The Cheney and Sullivan text suggests the first thing for an investigator to establish is the direction of the prevailing wind and any significant changes in wind direction with information should be sought from as many wind recording stations in the district as possible. Such observations should be matched to physical evidence left by the fire. Patterns of burning can provide specific information on local wind directions. For example, the pattern of charring can show the direction the wind was blowing when a tree was burned.
The authors observe that it can be straight forward to determine a fire’s origin if fire fighters arrive quickly and suppress the rear perimeter of the fire soon after ignition. However, if suppression at the back of the fire was delayed or burning out operations were conducted upwind of the suspected point of ignition, it may be very difficult. Single ignition points from back burning operations may leave a pattern identical to that of the original ignition. The Cheney and Sullivan text recommends that investigators use all indicators to establish the approximate location of a change from a backing fire to a heading fire in the direction of the prevailing wind. In a passage that featured significantly in cross-examination, the authors state as follows:[9]
If the time when the very back of the fire was suppressed is known, and the probable ignition time is also known, it is possible to use the fact that fires backing directly into the wind spread at a constant rate … to locate the probable region of ignition. The elliptical shape of the back flanks can help focus the search for the ignition source, but the timing of lateral spread abreast or ahead of the ignition point is difficult to determine because of alternating heading and backing behaviour of the flank fire.
[9] Phil Cheney and Andrew Sullivan, Grassfires: Fuel, weather and fire behaviour (CSIRO Publishing, 2nd ed, 2017) at 112.
Cheney, Gould and Catchpole paper
Both parties referred to and cross-examined the experts extensively on an article by Cheney, Gould and Catchpole entitled “Prediction of fire spread in grasslands” (“the Cheney, Gould and Catchpole paper”).[10] The paper describes a model to predict fire spread in grasslands from a wind speed recorded at 10 metres above ground level, dead fuel moisture and degree of grass curing based at least in part on laboratory studies. The paper explains that the relationship between the rate of spread of the head fire, dead fuel moisture content and wind speed was first published in 1960 by McArthur and later converted with minor modifications in 1966. The aim of the work was to develop a model for fire spread in continuous grasslands and compare the model’s predictions with spread rates from wildfires. The model was based on data from experimental fires but required a number of assumptions to be made.
[10] Phil Cheney, James Gould and Wendy Catchpole, ‘Prediction of fire spread in grasslands’ (1998) 8(1) International Journal of Wildland Fire.
The authors state that the rate of spread of fire in grasslands depends on the initial growth of the fire, the kind of fuel, wind speed and live and dead fuel moisture. The authors observe that wind speed is the one variable for which the relationship with spread rate must be extrapolated beyond experimental data to produce a model predicting fire spread under extreme conditions. In order to develop functions between the rate of spread and wind speed, it was necessary for the researchers to define the rate of fire spread at zero wind speed (how much the fire will move absent any impact of wind) as well as the rate of spread at the critical wind speed for fires burning in continuous grassland.
The authors state that completely calm conditions rarely exist. When they do, fires are restrained to some degree by convection behind the leading edge and comprise circular backing fires. In creating the equations to predict forward fire spread the authors therefore adopted the backing rate of spread for grassfires as the rate of spread of the fire at zero wind speed. Their data set was based on measurement of wind speed at two metres above ground. Wind was not a significant variable, although the range varied from 0.5 to four metres per second.
The authors included in their paper a graph[11] plotting the results of experimental fires demonstrating the relationship between the backing fire rate of spread against fuel moisture at zero wind speed and from that data derived an equation to estimate the rate of fire spread at zero wind speed.
[11] Graph depicted in figure 2 of the paper.
Cheney, Gould and Catchpole state that in the field, the transition from a backing fire to a heading fire is unstable. It is complicated by thermal activity. When wind speeds at 10 metres above ground level are less than five kilometres per hour, winds are described as light and variable and fires progress erratically in speed and direction as they respond to gusts and lulls in the wind. The authors state that under those conditions, they could not obtain a reliable correlation between wind speed at two metres above ground level and head fire spread. They observed that the wind affecting the head fire was often quite different from that recorded at two metres above ground level near the fire. This would depend on the passage of gusts and lulls in the wind. At times, a head fire was observed to progress quite rapidly under the influence of a local puff of wind while the wind recorded at the anemometer site was calm or in the opposite direction to the direction of fire spread.
During their experiments, the authors obtained consistent head fire spread rate only when the wind speed measured at 10 metres above ground level was greater than five kilometres per hour.
The Cheney, Gould and Catchpole paper proposes a number of equations including for predicting the forward rate of spread of fire for wind speeds, measured at 10 metres, of less than five kilometres per hour and above five kilometres per hour. In the discussion in the paper, the authors record a number of qualifications. They state that it appears unwise to use a simple mathematical function to describe rate of spread over a full range of wind speeds. They observe that rate of spread at zero wind speed may not be an appropriate scaling variable for developing a relationship between rate of spread and wind speed because there may be a change in the mechanism of fire spread above a critical wind speed such as a change from backing fire to heading fire. They note that the concept of a critical wind speed is more important for the understanding of fire spread mechanism than practical prediction of the rate of spread in continuous grasses. The authors also refer to equations which relate to wind speeds of less than five kilometres per hour as purely conceptual models because fires burning under light wind conditions often spread erratically as they respond to gusts and lulls in the wind. The models could thus underpredict the rate of spread during a short, localised wind gust and over predict it during a lull in wind.
These concepts and the Cheney, Gould and Catchpole equations were put to the experts in cross-examination. I return to address this separately below.
The NWCG Guide
The National Wildfire Coordinating Group’s Guide to Wildland Fire Origin and Cause Determination (“the NWCG Guide”)[12] is a publication produced for guidance of member agencies of the National Wildfire Coordinating Group (“NWCG”). The preface describes the NWCG Guide as designed for use in the field as a guide for wildland fire investigators.
[12] National Wildfire Coordinating Group, PMS 412 / NFES 1874: Guide to wildland fire origin and cause determination (April 2016).
The NWCG Guide notes that every wildland fire investigation is unique and consequently, while the recommendations in the NWCG Guide should be followed to the greatest extent possible, they are not meant to restrict the application of other specific practices to unique fire scene conditions. The guidelines were developed to follow a systematic, science-based methodology which has been peer reviewed and is generally accepted by the wildland fire investigation profession. While acknowledging that applying techniques during an investigation which differ from those which are recommended is not necessarily wrong, if other techniques are used, the investigator should be able to explain why.
The principles and practices provided in the NWCG Guide are taught in an NWCG training course, “Wildland Fire Origin and Cause Determination – FI210”.
According to the NWCG Guide, the fundamental purposes of fire investigation include determining origin and cause. This is generally done using a systematic method. Fires burn according to scientific principles and fire pattern indicators provide evidence of a fire’s progress. A fire pattern indicator is an object that displays fire effects from exposure to heat, flame and combustion byproducts. According to the NWCG Guide, an accurate analysis of individual fire direction indicators can reveal fire progression at that precise location and forms a portion of the overall fire pattern. Analysing the relationship of the majority of fire pattern indicators reveals an overall fire pattern and thus fire progression.
The NWCG Guide contains, among other topics, a chapter on fire behaviour and fire patterns and a chapter on methodology.
Fire pattern indicator vectors are described as a group of individual fire pattern indicators located near each other which as a group reflect the fire spread vector within that area showing the direction of fire progression at that point. Fire pattern indicator vectors identify transition zones which can be subtle. The NWCG Guide describes the backing fire vector as characterised by slower spread, lower intensity, less damage relative to advancing and lateral areas and microscale fire pattern indicators. Lateral fire vectors are characterised by a rate of spread and intensity between that of the backing and advancing fire and indicators can have characteristics of backing or advancing, depending on fire behaviour circumstances. Higher intensity flanks may leave indicators consistent with advancing fire spread, with a more defined and narrower transition zone, but a lower intensity flank may leave backing type indicators exhibiting a more subtle and wider transition zone.
The NWCG Guide refers to a transition zone which is described as an area of directional change which can change from a heading fire to a flanking fire, a heading fire to a backing fire, or a backing fire to a flanking fire. According to the NWCG Guide, identifying transition zones is key to accurately interpreting fire patterns. Changes in wind direction will affect the spread direction of the head fire and transition zones.
The NWCG Guide explains that there are 11 categories of fire pattern indicators, the physical appearance of which will differ with the direction of fire progression (the vector). Fire pattern indicators are divided into microscale and macroscale fire pattern indicators. Macroscale fire pattern indicators are usually associated with larger objects or areas.
In considering fire pattern interpretation, the NWCG Guide sets out the following principles.
·Single fire pattern indicators reflect the fire’s direction at a precise point and may be unreliable in the context of overall fire progression. Accordingly, the interpretation should be based on the majority of fire pattern indicators within an indicator category.
·Using as many categories of fire pattern indicators as possible increases reliability and consequently interpretation should be based on a variety of categories.
·As fire does not burn in perfectly straight lines, radical but brief directional changes may occur. Fire pattern indicators will align with the progression at the point of each indicator. A single fire pattern indicator may therefore be accurate within a 180 degree arc.
·Fire pattern indicators should be interpreted within the context of fire behaviour principles. The fire behaviour context should be determined through weather observations, topography, reliable witness information and reconstruction of probable fuel conditions.
·Fire pattern indicators will usually become less pronounced when approaching the ignition area. Most fires start with low intensity and will progress outwards from the ignition area with intensity usually increasing as the fire progresses outwards. In the initial area of combustion, most of the fire pattern indicators will be subtle.
·Fire pattern indicators should be documented during the investigation including with photographs and directional flags.
·One should work from the area of more intense burning to follow the fire’s progression back to the area of less intense burning to the ignition area. Transition zones, being areas of directional change based on variations in intensity, may outline the specific origin area and can be identified though the fire pattern indicators.
The NWCG Guide recommends avoiding attempts to prematurely locate the ignition area. This is in part because indicators become increasingly subtle closer to the ignition area.
The NWCG Guide explains that a fire pattern indicator’s vector can usually be determined by examining the appearance of a fire pattern indicator. While indicators accurately reflect fire behaviour at a particular point, the individual vector may not be consistent with general fire progression. The fire behaviour context is therefore important.
Fire pattern indicators include, relevantly, protection and angle of char. Fuel and non-combustible objects will be unburnt or will exhibit less damage on the side which is not exposed to the advancing fire. Comparing the charring, staining, ash and so on, on the exposed and non-exposed sides of fuels and non‑combustible objects can demonstrate the fire direction. Protection is said to be most reliable in low to moderate intensity fires and can accurately show fire direction.
The NWCG Guide notes that due to the lower intensity of backing fires, microscale protection fire pattern indicators are generally located on more protected and smaller fuels and objects.
According to the NWCG Guide, the charred remains of grass stems will have different appearances depending on the direction of the fire’s travel and intensity. In advancing fires, the flames will attack the stem from the top and burn them to ground level, completely consuming all but the very base of the stem. The NWCG Guide states that a backing fire will burn stalks off at the base and leave unburned stalks on the ground with their heads pointing towards the ignition area. The flank fire may leave some stalks burnt clean and others on the ground. Grass stems are described as a usually very reliable indicator, segregating backing from advancing areas well and defining lateral areas. There are some exceptions. Grass stems that have fallen in the same direction due to high winds may not be reliable as a directional indicator but the amount of grass stem remains can be used to assist determining transition areas and fire intensity.
Angle of char fire pattern indicators are formed when fire burns up to, past and beyond standing fuel such as a tree. The flame height and angle corresponding with head, flank and backing fire directions and intensities will char the fuel at an angle compared to both the unburnt portion of the object and the slope.
The NWCG Guide recommends a methodology which sets out a framework and specific methods to be applied to gather data. The scientific method is a framework which does not specify particular methods which should be applied and it is up to the investigator to select the best methods for the specific circumstances. Applying systematic methods is recommended to avoid premature conclusions and bias and facilitate a consistent approach. The scientific method is described as defining a problem, collecting and analysing the data, developing a hypothesis, testing the hypothesis and then selecting the final hypothesis. However, this is an interactive, not a linear, process in which several parts may take place at the same time or be repeated. The guide notes that addressing potential ignition sources and developing working hypotheses should be based on data collected.
Generally, a basis for forming a working hypothesis and determination of cause is establishing a specific origin area, ignition area and physical evidence of an ignition source. Where there is no direct evidence of an ignition source, various factors may be used to develop a working hypothesis. These include that the area of origin is clearly defined and was searched and witness statements.
The NWCG Guide states that for a hypothesis to be valid it must be tested and withstand the testing without the hypothesis being rejected. Consideration should be given to what other hypotheses could be supported from the same facts. If so, more data should be gathered and retested. Deductive reasoning should focus on attempting to disprove or reject each hypothesis. The NWCG Guide states that if a hypothesis cannot withstand examination, it should be discarded. The NWCG Guide categorises levels of certainty into possible and probable. The former is where a hypothesis is feasible but not to the level of probable and the latter is where a hypothesis has a likelihood of more than 50 per cent.
The NWCG Guide cautions against bias in the investigation process. It recommends avoiding presumption as to origin and cause until all relevant data has been gathered and tested against working hypotheses and a final hypothesis has been selected. The NWCG Guide counsels against expectation bias which is defined as reaching a conclusion without considering all relevant data, discounting data, or failing to seek relevant data. However, the NWCG Guide also points out that a witness providing a statement early in the investigation indicating a certain potential cause would not of itself constitute expectation bias unless the investigator ignored factual data indicating other potential causes. Further, forming only a single hypothesis as dictated by empirical data would not of itself indicate bias. The NWCG Guide defines confirmation bias as using data to prove a hypothesis rather than to test and attempt to discount it. It recommends testing all hypotheses for which there is supporting data.
The NWCG Guide states that wildland fire investigation is a specialised field and individuals without specific training and expertise will not usually be qualified to render opinions about origin and cause.
The NWCG Guide recommends that the investigator first identify an advancing area of the fire consistent with witness statements and the context. Once that area has been identified, fire behaviour context and macroscale fire pattern indicators should be used to follow the advancing fire backwards to its source. The guide cautions against starting the area of search for the general origin too close to the transition of advancing and backing vectors. The NWCG Guide recommends a process for working through the general origin area, including identifying and marking the location of each fire pattern indicator with a visible marker. Generally, a head fire indicator is marked in red, a flanking fire indicator in yellow and a backing fire indicator in blue.
The NFPA Guide
The National Fire Protection Association (“NFPA”) Guide for Fire and Explosion Investigations (“the NFPA Guide”)[13] was prepared by a technical committee on fire investigations and issued in 2016. The NFPA Guide was developed to assist in improving the fire investigation process and to provide guidance to public and private investigators based on accepted scientific principles and scientific research.
[13] National Fire Protection Association, NFPA 921: Guide for fire and explosion investigations (2021).
The NFPA Guide states it was designed to produce a systematic working framework by which effective fire investigation and origin and cause analysis can be accomplished. The NFPA Guide recommends a systematic approach based on the scientific method used in physical sciences. The NFPA Guide’s description of the scientific method is similar to that contained in the NWCG Guide. The NFPA Guide refers to the development of a hypothesis through inductive reasoning based on data analysis and describes testing the hypothesis through deductive reasoning. The NFPA Guide indicates that if the hypothesis cannot withstand careful and serious challenge through deductive reasoning, the conclusion is not valid or reliable. Testing should be designed to refute the hypothesis. The method of testing the hypothesis to disprove it rather than find data to support it can prevent confirmation bias. The testing process should be continued until all feasible hypotheses have been tested and one is determined to be uniquely consistent with the facts and the principles of science. If no hypothesis can withstand such examination, then the issue should be considered undetermined. The NFPA Guide cautions against forming hypotheses until data has been collected and cautions against using premature determinations to dictate the investigative process and conclusions. Rather, all data should be collected and examined in a logical and unbiased way. The NFPA Guide also cautions against confirmation bias through relying exclusively on data that supports the hypothesis and failing to look for, or ignoring, contradictory data.
The NFPA Guide refers to the level of certainty required in reaching an opinion and distinguishes between probable, being a more likely than not level of certainty, as opposed to possible, where a hypothesis can be demonstrated to be feasible but not probable.
In a chapter addressing basic fire science, the NFPA Guide explains that heat is transferred through conduction, convection and radiation. Conduction consists of heat transfer within a solid when one portion of an object is heated. Energy is transferred from the heated area to the unheated area. Heat is transferred by convection to a solid when hot gasses pass over cooler surface areas. Heat is absorbed by the solids early in a fire. Convection plays a major role in heating surfaces exposed to gas which are heated by the fire. Convection continues, but as the temperature increases, the role of radiation increases and becomes the dominant form of heat transfer. Radiation is the transfer of heat energy from a hot surface or gas to a cooler material by electromagnetic waves.
The NFPA Guide addresses the process of transition from smouldering to flaming combustion, stating that smouldering can transition to flaming if the smouldering creates sufficient flammable vapours for flaming ignition. This will normally occur when smouldering becomes vigorous because of enhanced air flow to the region, which can occur as a result of the creation of a hole or channel which acts as a chimney or an external air flow. The glowing char can act as the ignition source for a flammable concentration of vapours.
The NFPA Guide recommends a methodology to be followed in determining the fire origin. Determination of origin involves coordinating information obtained from witnesses, the analysis and effects of patterns left by the fire and the analysis of the fire dynamics. The methodology recommended is to collect and analyse data, develop hypotheses and test those hypotheses which are to be considered as working hypotheses to be discarded, revised or expanded as new data is collected and new analyses are applied. Testing any origin hypothesis requires an understanding of the associated fire events and the growth of the fire and fire spread. The purpose of the fire spread analysis is to determine whether physical damage and data are consistent with the area of origin hypothesis. The NFPA Guide recommends against identifying ignition sources by eliminating all ignition sources for which no supporting evidence exists. This is said to generate untestable hypotheses. Any hypothesis must be based on the analysis of facts and logical inferences.
The NFPA Guide contains a basic introduction to wildfire investigation. It commences by stating that wildfire investigation involves specialised practices, equipment, techniques, and while the basic principles of fire science and dynamics are the same, the fire development and spread is influenced by different factors including fuels, fire weather, topography and unconfined burning.
A key factor influencing wildfires in grass fuels is the degree of curing. As the vegetation cures due to lack of moisture, the grass becomes drier and more flammable. Fuel diameter is a major factor governing how easily and how quickly fuel ignites and burns. Smaller material ignites more easily and burns more quickly. Larger diameter fuels are more likely to be difficult to ignite and burn more slowly. The amount of moisture in fuel plays a major role in determining its ability to ignite and the rate of fire spread. Green vegetation with higher moisture content will burn more slowly as the moisture within it requires more heat to evaporate. The NFPA Guide describes the importance of weather, ambient air temperature, relative humidity, wind and topography in impacting the intensity and spread of fire.
The NFPA Guide refers to various fire pattern indicators. In a section on grass stems, it states that heading fire areas are generally characterised by an absence of residual grass stems while grass growing in clumps may not be fully consumed and may show protection patterns. In backing fire spread areas, and sometimes in flanking areas, flames will attack the stalk at the base, toppling the rest into the burned area with the remaining grass heads pointing generally in the direction from which the fire came. The NFPA Guide refers to char patterns which can assist in determining fire direction. The NFPA Guide states that ash is often deposited on the windward side of objects and can be used to reconstruct probable fuel volumes. However, ash indicators can degrade quickly when exposed to high winds or moisture. The NFPA Guide describes non-combustible objects or fuel shielding the unexposed side of a fuel from heat damage and thus exhibiting less damage on the side which is shielded from the advancing fire. Objects on the ground will protect the fuels on the unexposed side and surface fuels on the exposed side will show a clean burn line as opposed to the protected side where surface fuels will appear uneven.
The NFPA Guide indicates that information from first arriving fire fighters can determine the initial area of investigation. Those people can provide valuable information relevant to determining origin and cause.
A section of the NFPA Guide addresses general principles of burn pattern interpretation. It recommends basing interpretation on the majority of the indicators within an indicator category, the totality of indicators and fire behaviour principles. It states that a single indicator may only be accurate within a 180 degree arc and indicators will usually be less pronounced near the origin. It recommends that fire investigation work from the area of most intense burning following the fire’s advancing spread back to origin.
The NFPA Guide refers to lightning as a well-recognised cause of wildfires, particularly in areas of forest. It states that lightning strike can splinter the trunk of trees and create glassy clumps in the soil resulting from melting sand. The NFPA Guide states that lightning caused fires may smoulder undetected for several weeks before fire transitions to an active wildfire following changes in weather conditions. It refers to debris burning and states that large woody debris piles, especially if mixed with soil, can hold long-term thermal residency for many months, including over winter, before escaping.
Steensland paper
In the paper entitled Long-Term Thermal Residency in Woody Debris Piles by Paul Steensland (“the Steensland paper”),[14] the author states that woody debris piles can maintain smouldering combustion for days, weeks or even months and later escape to adjacent vegetation. Steensland’s paper examined circumstances that create long-term hold over fires through research based on examining actual long-term thermal residency occurrences. The Steensland paper featured in cross-examination of the experts.
[14] Paul Steensland, Long-Term Thermal Residency in Woody Debris Piles (Wildland Fire Litigation Conference, April 2008).
The Steensland paper refers to documented evidence of large woody debris piles retaining smouldering combustion for significantly protracted lengths of time including holdover fires in excess of 10 months. The author states that most long-term holdover fires involve large piles which are mostly made up of oversized woody debris, cured or uncured or a mix of material, usually including stumps, logs and other substantial sized materials which are prone to maintaining smouldering combustion for extended periods because of their size. Uncured green materials and hardwoods may be more prone to maintaining smouldering combustion. The presence of soil in the pile may significantly contribute to smouldering noting that soil is often added during the construction of the pile and ash and soil are excellent insulators. When ash combines with soil and is exposed to moisture, it can form a slurry that subsequently bakes into a crust over subsurface smouldering, trapping and holding heat within the core of the pile. It also restricts oxygen flow, enhancing the smouldering process. If fuels are not allowed sufficient time to adequately cure before being lit, there will be a high level of resident fuel moisture. More heat energy is required to dispel the moisture so that by the time larger diameter fuels ignite, much of the flame maintained by finer fuels has diminished, causing the larger diameter fuels to smoulder. The lack of active surface flames will retard the consumption of material within the interior of the pile. If the time between ignition and escape is during a period of less than average rain, this may increase the likelihood of a holdover fire. Steensland observes that, statistically, holdover fires escape more frequently following winter and spring seasons where there is below average rainfall. Snow can also insulate piles. Another commonly reported circumstance of fire escape is the pile not being inspected for dormant fire, or piles not being properly extinguished. Smouldering combustion therefore continues until the mechanism for escape arises.
Over time, combustion will continue inside the pile and if there is little oxygen present, the material will convert into charcoal. There may be little outward evidence of smouldering in the form of heat or smoke reaching the surface. Some smoke or heat may exit the pile through vent fumaroles where areas of the pile collapse. If materials are sufficiently deep in the pile, rain may not impact combustion. The pile may maintain smouldering over days, weeks and months. There can be a significant decrease in fuel mass. As the material burns, it can create voids which are filled by overlying soil and ash subsiding. As the top layers collapse inwards, residual smouldering materials coming into close proximity to the surface may be exposed. Once exposed to atmospheric oxygen, there is a possibility of flame propagation and a transport mechanism to bring the flames into contact with adjacent vegetation.
The Steensland paper states that previous research shows a significant correlation between wind and escapes. The conditions most frequently linked with holdover fires escaping are warming and drying weather for days or weeks following by a wind event. Smouldering materials that have worked their way closer to the surface as the pile subsides may be exposed when wind gusts remove the last section of ash and soil. Uncovered materials will rapidly transition from glowing combustion to flames with the introduction of oxygen from the atmosphere.
The Steensland paper referred to a research project concerning monitoring potential thermal residency in woody debris piles in North Carolina in 2006 to 2007. Based on the research and previously documented examples, Steensland concludes holdover fires do escape from autumn and winter debris burns and fire may remain dormant for many months. Common factors contributing to long-term fire residency and subsequent escape include a combination of large woody materials, mixing soil in the pile, snow coverings, a lack of proper inspection, lack of proper extinguishment and adverse spring fire weather conditions.
Mäkelä research
In 2009, a paper was published in the Journal of Lightning Research entitled “Attachment of natural lightning flashes to trees: Preliminary statistical characteristics” (“the Mäkelä paper”)[15] based on research conducted in Finland. The authors studied 37 trees struck by lightning in the summers of 2007 and 2008 for evidence of lightning damage. Their conclusions included that trees in moist soil are better conductors and rainfall protects trees from massive damage. The authors suggested that positive lightning flashes appeared more likely to cause observable damage to trees and a flash with a high peak current was more likely to cause significant damage. Wet ground and wet tree surface appeared to provide a pathway for the lightning current. Almost all cases of wood loss and explosive damage occurred when the ground and tree were dry. The paper stated that tree damage can be highly variable. There may be instances where no discernible damage was caused, sometimes damage might occur to bark which may be torn off and, at the extreme, lightning may explode the whole tree.
[15] Jakke Mäkelä et al, ‘Attachment of natural lightning flashes to trees: Preliminary statistical characteristics’ (2009) 1(1) Journal of Lightning Research 9.
Parker and Babrauskas paper
In an article titled “Validation of NWCG Wildfire directional indicators in test burns in coastal California” (“the Parker and Babrauskas paper”),[16] Parker and Babrauskas undertook research to perform a validation exercise of the reliability of fire pattern indicators. Parker and Babrauskas created three burn plots on level, scrubland terrain in low to moderate burning conditions and documented fire movements with drone videos, ground-based videos and photographs. Four experienced wildland fire investigators independently assessed the direction and type of fire spread at each artefact using the photographic site evidence together with limited information provided about conditions (not including wind direction). The investigators viewed drone image segments, without data sites identified.
[16] Keith Parker and Vytenis Babrauskas, ‘Validation of NWCG wildfire directional indicators in test burns in coastal California’ (2023) 7(1) Fire.
The authors performed a statistical comparison between the actual fire movement direction and the experts’ estimates which indicated an average error of 103 degrees in direction estimates. The authors concluded that the study showed that in a detailed photographic analysis, the artefacts did not provide reliable fire direction indication for protection, grass stem, staining, angle of char and white ash fire pattern indicators. The authors concluded that the error band would not enable the investigator to triangulate to the correct origin and commented that there was no specific pattern in the high error rate.
I therefore find on the balance of probabilities that:
·smouldering combustion was continuing within the active heap on 11 January 2021;
·smouldering materials within the active heap were exposed to the surface of the active heap including through the effect of the weather conditions on the day;
·those smouldering materials transitioned to flaming combustion when exposed to oxygen;
·the flames spread to the surrounding vegetation in the hot, dry conditions and spread under the influence of wind to become the Lucindale fire;
·the fire moved in the directions I have found above;
·the resulting fire ultimately burnt the area depicted in the fire scar map at the commencement of my reasons.
PART J: Negligence and nuisance – remaining issues
Negligence
Did the respondents owe a duty of care to the applicants?
The applicants referred to the legislative framework including the Fire and Emergency Services Act 2005 (SA) (“FES Act”); Environment Protection Act 1993 (SA); Environment Protection Regulations 2009 (SA) and the Environment Protection Agency (EPA) Burning Policy, September 2003 as contextually relevant to and informing the cause of action in negligence. The FES Act requires owners of private land to take reasonable steps to prevent or inhibit the outbreak of fire on land or the spread of fire.[272] The State Bushfire Coordination Committee refers to a framework for the safe and effective management of potential ignition sources and fire on land in South Australia and provides examples including the CFS Code.[273]
[272] Fire and Emergency Services Act 2005, s 105F(1).
[273] State Bushfire Coordination Committee, Bushfire Management Area Plan Handbook (CFS Bushfire Management Planning Unit, Version 2, February 2018) at 12.3.2; CB76 (CFS Code).
The applicants relied on the risk of harm from a smouldering vegetation heap being reasonably foreseeable and not insignificant; the applicants being vulnerable to harm and the respondents’ control over lighting vegetation heaps.
The respondents denied they owed a duty of care with the content and scope alleged by the applicants. However, they accepted that a person in control of premises who introduces dangerous activities to the premises owes to persons outside the premises, who have no control over those premises or the activities taking place on them, a duty of care to avoid a reasonably foreseeable risk of injury or damage to those people or their property.[274] During the respondents’ submissions, the respondents accepted that all other issues, such as duty and foreseeability, would “live or die” with the Court’s determination on causation. It follows there was no real issue about the question of duty of care or breach if causation was found.
[274] Burnie Port Authority v General Jones [1994] HCA 13; (1994) 179 CLR 520.
I find the respondents owed a duty to the applicants to exercise reasonable care in the conduct of the activities on their land to avoid causing harm to others, including to their property.[275] In light of the CFS Code, the respondents’ farming operations and vegetation heap burning activities, and the risk arising from fire in rural areas, I find it was reasonably foreseeable that a person in the position of the respondents would have known or ought reasonably to have foreseen that the manner of construction of the active heap, the lack of proper monitoring, the failure to extinguish the active heap prior to the fire season and the failure to create a proper fire break constituted a risk of fire such that a reasonable person in the position of the respondents knew or ought reasonably to have foreseen that such a fire could cause harm including to property owners in the region of the respondents’ property. The risk of escape of fire generally and in the specific locality was not insignificant. I accept the applicants were vulnerable to harm and the respondents relevantly controlled vegetation heap burning practices on their land.
What was the requisite standard of care?
[275] Burnie Port Authority v General Jones [1994] HCA 13; (1994) 179 CLR 520; Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40.
The standard of care required of a respondent is that of a reasonable person in the respondents’ position in possession of all information the respondents either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.[276] A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, that is, the person knew or ought to have known of it; the risk was not insignificant; and in the circumstances, a reasonable person would have taken those precautions.[277] In determining whether a reasonable person would have taken precautions against a risk of harm, the Court is to consider, among other relevant things, the probability the harm would occur if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity creating the risk of harm.[278]
[276] Civil Liability Act 1935 (SA), s 31.
[277] Civil Liability Act 1935 (SA), s 32(1).
[278] Civil Liability Act 1935 (SA), s 32(2).
The applicants pointed to the fact the escape of fire gives rise to a well-known category of risk; a person lighting a fire owes a duty to prevent the escape of fire; the standard of care in relation to escape of fire is stringent and requires the landowner to ensure reasonable care was taken; that standard varies with the extent of risk and potential damage; and the standard of reasonable care may involve a degree of diligence tantamount to a guarantee of safety. The applicants submitted the inherent danger associated with lighting the active heap and not taking steps to ensure it was fully extinguished before the fire danger season gave rise to inherent danger. Combined with the weather conditions on 11 January 2021, the magnitude of the risk was high and the standard of care owed had to be commensurately strict.
The respondents submitted that the standard of care is that which was reasonable in the circumstances or that which a reasonably prudent person would exercise in the circumstances.[279]
[279] Burnie Port Authority v General Jones [1994] HCA 13; (1994) 179 CLR 520 at 554 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
The CFS Code states that it applies to all persons engaged in vegetation pile burning. The experts agreed that the CFS Code was an appropriate guide to assisting the practice of safe vegetation pile burning outside the fire danger season.
While the respondents did not agree with the applicants’ submission that the accepted standard was the CFS Code, nevertheless, in taking the position that all other issues would follow from the Court’s findings on causation, there was no real contest on the standard of care.
I accept the applicants’ submissions and find that the standard of care owed by the respondents to the applicants was commensurate with a high degree of risk posed by the escape of fire. I accept the CFS Code represented an appropriate guide and accordingly, represented an accepted standard of care for safe vegetation pile burning practices.
Did the respondents breach their duty of care and, if so, with what consequences?
The respondents’ position was that the active heap was not lit in mid-2020. Accordingly, there was no evidence from Mr Degoumois, Mr Mills or any other staff that the respondents had taken steps to make sure the active heap itself was surrounded by a fire break, monitored after it was lit or otherwise checked or fully extinguished in the lead up to the fire danger season.
Without traversing his evidence again, I do not accept as reliable Mr Mills’ evidence about the construction, burning or monitoring of vegetation piles on Westlands.
As set out above, there was no evidence which supported the proposition that fire breaks were constructed around the active heap. There was evidence from a number of people who inspected the active heap after the fire, including Dr Marsden-Smedley, Mr Woods, Ms Rice, and Brevet Sergeant Downs, supporting a finding that there was no fire break around it.
The evidence of Mr Materne, Mr Mills and Mr Angus Brinkworth justifies a conclusion that the respondents’ staff were not trained about the risk of smouldering combustion in burn piles. Mr Thomas Brinkworth did not have conversations with any of the employees or contractors about smouldering fires, being on the lookout for them or making sure that safeguards were in place. He had not discussed or instructed anyone to check whether there was smouldering in a vegetation pile, for example by feeling it for heat or putting a spade into it. Mr Angas Brinkworth did not think he was aware of the CFS Code prior to this bushfire.
There is no evidence that the respondents disseminated the CFS Code or trained staff in relation to the risks associated with smouldering holdover fires in vegetation burn off piles. Mrs Materne could not say that the CFS Code featured in a fire safety workshop held in October 2020. She did not have knowledge of the CFS Code ever being handed out to farm managers or employees.
On the basis of the evidence of Mr Angus Brinkworth, Mrs Materne, Mr Materne, Mr Degoumois and Mr Mills, I find that the respondents did not provide copies of the CFS Code to Mr Degoumois, Mr Materne or Mr Mills in their capacity as farm managers or farm hands. I find the respondents did not provide training to Mr Degoumois, Mr Mills or Mr Materne in relation to the CFS Code or steps required to minimise or prevent the risk of smouldering holdover fires within vegetation piles.
Given the nature and the size of the respondents’ farming operations and the fact that the respondents engaged regularly in vegetation pile burning activities, as deposed to by Mr Materne, Mr Degoumois and Mr Mills, I find the respondents ought reasonably to have known of the CFS Code, to have known of the risk of smouldering in vegetation piles giving rise to a risk of fire, and to have abided by the requirements of the CFS Code. The respondents thus ought to have ensured relevant staff were appropriately aware and trained about the risks and requirements.
As set out above, I have found that the active heap was larger than recommended in the CFS Code, it contained logs which were significantly larger than advised and it contained significant amounts of soil. Mr Woods, Mr Fenwick and Dr Marsden-Smedley did not observe physical evidence of turning over of the active heap and I infer the active heap was not turned over. The witnesses did not observe any evidence of the construction of fire breaks and I infer that fire breaks were not constructed around the active heap. It follows from my finding that fire escaped from the active heap on 11 January 2021 that the active heap was not fully extinguished before that date.
I accept the consensus opinion of the experts concerning whether the precautions they identified were taken and whether the fire more likely than not would have started even if the precautions were taken.[280] In the light of all of the evidence to which I have referred, I infer and find that after the active heap was lit, steps were not taken to monitor the active heap to ensure it was not smouldering within and/or to ensure it was fully extinguished in winter 2020 or before the start of the bushfire season.
[280] CB17, p 855-863.
Based on my findings above, the applicants have proved on the balance of probabilities that:
·the active heap was lit in mid-2020;
·the active heap was constructed in a way which gave rise to a risk of smouldering combustion;
·the active heap was not surrounded by a fire break;
·the active heap was not monitored, adequately or at all;
·after it was lit, the active heap continued to smoulder within the heap;
·the active heap was not fully extinguished after it was lit or before the start of the fire danger season;
·smouldering combustion continued until 11 January 2021;
·the smouldering combustion transitioned to flaming combustion in the hot, dry and windy weather on 11 January 2021;
·the flaming combustion escaped to surrounding vegetation and started the Lucindale fire.
Dr Marsden-Smedley opined that if the active heap was smaller and with less soil, it was highly probable it would have burnt out over a few weeks. In the consensus report, Dr Marsden-Smedley and Mr Woods considered that if the active heap was smaller in size it would have burned out in a shorter timeframe which probably would have resulted in the consumption of all flammable material before the fire season and thus the fire would not have started. Dr Marsden-Smedley, Mr Woods and Mr Fenwick agreed that if the active heap had been inspected and smouldering detected, it could have been treated and then re-inspected to ensure it was fully extinguished in which case the fire would not have started. Dr Marsden-Smedley, Mr Woods and Mr Fenwick considered that if steps had been taken to ensure the active heap was fully extinguished, the fire would not have started. Dr Marsden-Smedley and Mr Woods considered that if a four metre wide fire break had been created it was possible, but not certain, the fire would have been contained, thus reducing the risk but not preventing the fire. Mr Cousins did not agree with the first and last statement above. I prefer the opinions of the other experts over Mr Cousins’ views.
I find that if the active heap had been constructed in accordance with the CFS Code and the precautions in the CFS Code had been followed, the risk of smouldering combustion remaining in the active heap would have been significantly reduced, if not eliminated. Fire breaks would have reduced the risk of fire escaping the active heap and appropriate monitoring would have identified that the active heap was still burning, prompting steps to extinguish it before the commencement of the bushfire season.
It follows that I find the manner in which the active heap was constructed and the failure to take the precautions required by the CFS Code increased the probability of harm arising from lighting the active heap. The likely seriousness of the potential harm was obviously severe. The respondents did not submit that there would have been a disproportionate or unreasonable burden in taking the precautions recommended by the CFS Code. No submissions were put to me to the effect that there was some social utility to the activity.
I find that the respondents breached their duty to take reasonable care in the conduct of their vegetation burn off activities conducted on Westlands. The respondents breached their duty by:
·failing to construct the active heap in accordance with the CFS Code;
·failing to surround it with a fire break;
·failing to adequately monitor the active heap after it was lit;
·failing to fully extinguish the active heap after it was lit and had burned;
·failing to check the active heap before the fire danger season started to ensure it was fully extinguished; and
·failing to ensure the active heap was fully extinguished prior to 11 January 2021.
The applicants have persuaded me on the balance of probabilities that the poor construction of the active heap, lighting it without adequate precautions or monitoring and failing to ensure it was fully extinguished prior to the start of the bushfire season were a necessary condition of the occurrence of harm and it is appropriate for the scope of the respondents’ liability to extend to the harm which was caused as a result.
Nuisance
The tort of nuisance is constituted by an unreasonable or unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it, or material damage caused to land or other property on the land affected by the interference.[281] The proof of fault required to establish nuisance on the part of the landowner from whose premises the nuisance emanates generally involves foreseeability.[282] If foreseeability is established, it is then a question of whether the interference was reasonable.[283] Whether the respondents’ use of the land is non-natural is relevant in determining reasonableness.[284]
[281] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 at [244]-[248] (McLure P); Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 59 (Windeyer J); Kraemers v Attorney-General (Tas) [1966] Tas SR 113 at 122 (Burbury CJ).
[282] Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 22) [2019] NSWSC 1657 at [238] (Beech-Jones J).
[283] Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [142] (Ward J).
[284] Burnie Port Authority v General Jones [1994] HCA 13; (1994) 179 CLR 520.
The respondents contended that in cases in which physical damage is caused, there is almost complete overlap between nuisance and negligence such that there will be very few cases of liability in nuisance which would also not constitute liability in negligence.[285]
[285] Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 59, as affirmed in Goldman v Hargrave [1966] UKPC 12; (1966) 115 CLR 458.
I conclude the applicants have succeeded in establishing nuisance based on my findings.
While the activity of burning vegetation heaps in farming operations is a reasonable use of land, to do so in a manner giving rise to unreasonable risk of fire escaping and causing a bushfire is not. The risk of bushfire during the fire danger season is a well-known risk in rural Australia. The active heap was lit, not monitored, and not extinguished. That conduct did not constitute a reasonable use of the Westlands property.
I find the fire caused a substantial and unreasonable interference with the use and enjoyment by the applicants of their properties. The interference was unreasonable in light of the extent of the interference, the lack of reasonable precautions being taken to minimise the potential interference, the damage suffered, and the lack of established social or public interest in constructing and burning vegetation heaps in the manner in which that activity was carried out on the respondents’ property.
I therefore conclude the applicants succeed in their case in nuisance as against the respondents.
Limitation period
Mr Thomas Brinkworth was a joint registered proprietor of Westlands until his death on 20 August 2020. Probate was granted in relation to Mr Thomas Brinkworth’s estate on 18 May 2021. The respondents to all proceedings were Mrs Patricia Brinkworth and Mr Benjamin Brinkworth, Mr Angas Brinkworth and Mr John Finnis as executors of the estate of the late Mr Thomas Brinkworth.
The Class Action and the Higgins, Justin and Trimboli actions were commenced before the period of six months from the grant of probate. However, a number of applicants (the “Joined Applicants”)[286] opted out of the Class Action and thereafter were joined as members of the Subrogated Claims or filed separate proceedings after that period had elapsed.[287] The respondents contended that claims of the Joined Applicants were out of time.
[286] The 19th to 21st Higgins Applicants opted out on 24 December 2021; the 54th to 57th Justin Applicants opted out on 24 December 2021; the 58th and 59th Justin Applicants opted out on 18 February 2022; the Copping Applicants opted out on 3 August 2022; the 60th to 63rd Justin Applicants did not opt out of the Class Action.
[287] Claims by the 19th to 21st Higgins Applicants and the 54th to 57th Justin Applicants were filed on 25 January 2022; the Copping action was filed on 23 March 2022; claims by the 58th to 63rd Justin Applicants were filed on 3 October 2023.
In their opening, the applicants submitted that the limitation period in s 4 of the Survival of Causes of Action Act 1940 (SA) (“Survival Act”) only applied in respect of a cause of action in tort which, by virtue of the Survival Act, has survived against the estate of a deceased person. The applicants contended that the introduction of the Survival Act was designed to remedy the defect whereby the personal representative could not recover damages for personal injuries, although they could recover damage to the deceased’s property. Accordingly, it was argued that the Survival Act was not intended to, and did not, replace the existing common law in relation to causes of action that resulted in damage to property. Alternatively, the applicants contended that the respondents were estopped from relying on the limitation period in the Survival Act. In the further alternative, the applicants sought an extension of time pursuant to the Limitation of Actions Act 1936 (SA) (“Limitation Act”).
In opening, the respondents maintained the limitation period in the Survival Act applied and the respondents were not estopped from relying on the limitation period. The respondents did not put any submissions in relation to an extension of time under the Limitation Act.
In closing, the applicants submitted that as the respondents did not require any of the witnesses for cross-examination, nor file any affidavits in opposition, the relevant facts could be regarded as uncontentious. Further, the applicants submitted that if the Court were to find the fire was caused by the respondents’ negligent construction and management of the active heap during the months after it was initially lit, the limitation issue would not need to be determined. That was because the respondents themselves, in respect of whom no limitation issues arise, will be liable for their breaches of duty by failing to properly monitor and manage the active heap in the months following its initial ignition and by failing to ensure the active heap was extinguished prior to the start of the fire danger season which continued after Mr Thomas Brinkworth died in August 2020. Similarly, the applicants submitted that if the respondents were found to have maintained and not abated the nuisance created by the active heap during the months after Mr Thomas Brinkworth’s death, the limitation point fell away.
The respondents did not put any submissions to me in closing in relation to the Survival Act, estoppel or the Limitation Act.
I have found that the respondents owed duties of care and breached those duties of care to the applicants. The respondents’ breach of their duties included failing to ensure the active heap was extinguished prior to the start of the bushfire danger season. Those obligations continued past the date of Mr Thomas Brinkworth’s death. It follows that I accept the applicants’ submissions. Accordingly, I have not further addressed the applicants’ arguments about the proper interpretation of the Survival Act.
For the sake of completeness, if it had been necessary to determine, I would have granted an extension of time to the Joined Applicants pursuant to s 48 of the Limitation Act. The respondents did not at trial object to or contest any of the evidence relied on by the Joined Applicants in support of the extension of time. The applicants’ reasons in support of the exercise of the discretion were compelling. Those reasons included that the respondents were aware of the potential claims by all persons impacted by the fire since the commencement of the Class Action, which was filed in time; some of the Joined Applicants were previously members of the Class Action; other of the Joined Applicants were persons or entities related to existing applicants; the claims of the Joined Applicants arise out of the same facts and raise the same issues; the respondents’ defences are the same and the granting the extension will not cause specific prejudice to the respondents. Therefore, had it been necessary to do so, I would have exercised the discretion to extend time for the reasons relied upon by the applicants in their submissions.
Conclusion and orders
The respondents are liable for losses of the applicants caused by the respondents’ breaches of duty with the quantum of such losses to be assessed.
The applicants are entitled to judgment against the respondents in amounts to be assessed.
I will hear the parties in relation to consequential orders required to give effect to my reasons.
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