Prestage v Barrett
[2021] TASSC 27
•2 July 2021
[2021] TASSC 27
COURT: SUPREME COURT OF TASMANIA
CITATION: Prestage v Barrett [2021] TASSC 27
Thorne v Barrett
Howells v Barrett
FILE NOS: 3391/2018
3392/2018
3393/2018
PARTIES: PRESTAGE, Alan Michael
ARNOLD, Lee
AUSTRALIAN BUS & COACH COMPANY
BISCOE, Gillian Mary
BROWN, Warren
CALCRAFT, Mark
CALCRAFT, Lois Marilyn
CAMERON, Ian Geoffrey
CAMERON, Barbara Anne
CAMPBELL, Peter Norman
CAMPBELL, Denise
CLEAVER, Philip Andrew
CUNNINGHAM, Maxwell Peter
DALY, Gerard Patrick
DALY, Susan
DEAN, Ian
DEAN, Rosalie
DEAN, Rachel Anita
DEBBILL PTY LTD trading as DUNALLEY HOTEL
DIENAAR, Peter Joseph
DIENAAR, Rachel
DODDRIDGE, Dion
DODDRIDGE, Elizabeth
EDWARDS, David John
EDWARDS, Megan Sarie Anne
ENGLAND, Todd
FORSTER, Margaret Nancye
FROHMADER, Carolyn Patricia
SPAULDING, G & K trading as PENINSULA
READY MIXED
GUNNS PLANTATIONS LIMITED
HARLOW, Robert Stanton
HARRINGTON, Jane
HOGG, Harvey trading as SUNSET BEACH CABINS
HATCHARD, Leanne Marie
HATCHARD, Amanda
HENRY, Matthew
HOGG, Harvey
HOGG, Marie Anne Sylvaine
HOWELL, Peter
HOWELL, Sue
IRVINE, Andrew
ELDRIDGE, J L & ELDRIDGE, R C trading as
FOX & HOUND INN
JAHNKE, Lisa
JONES, Lois
KING, Sam
KRAMAR, Carolyne
L A ARNOLD PTY LTD
LANGLOIS, David Reginald
LANGLOIS, Anne Elizabeth
LAWRENCE, Margaret
LEACH, Robert Gordon
LEACH, Robyn Eleanor
LIEBACH, Ryszarda Romana
L M CALCRAFT CONSTRUCTION PTY LTD
MACDONALD, Jillian Faye
MARION BAY OYSTERS PTY LTD
McDONALD, Sally
MILLAR, Graham
MILLAR, Anne
NAILON, Mary
NAILON, John
CAMPBELL, P N & D trading as
CAMPBELLS CRANKSHAFT SERVICES
CAMPBELL, P N &D trading as
CAMPBELLS ENGINE MACHINING SERVICES
PARRY, Justin Nicholas
PEART, Greg
PHILLIPS, June
PICKETT, Megan
POWELL, Bryan
RISBY, Mark
SAM KINGPTY LTD
SAULIS, Vic
SAULIS, Kim
SCARR, Brendon
SHALANG PTY LTD
SPAULDING, Gerrard
SPAULDING, Kathy
SPAULDING, Peter
SUTCLIFFE, Robert Norman
SUTCLIFFE, Jillian Fay
TAYLOR, William
THORPE, Robert Stanley
THORPE, Dianna Christina
W DOWNIE FAMILY TRUST
WADE, Wendy
WALKER, David
WHELAN, Vanessa
WILSON, Barryv
BARRETT, Melisa Jane
ROBINSON, HamishTHORNE, Michael
ACKERLEY, Jillian
ACKERS, Scott George
ANDERSON, Peter
ANDERSON, Lesley
APTED, Michael
AVERY, Simon
BARKER, Kim
BATE, Ben
BELBIN, Donald Neal
BIRD, Kathryn
BIRD, Robin
BLANKSBY, Graham
BOLT, Eilderdina Aaltj
BONNER, Lesley
BOSWORTH, Gavin
BOWDEN, Michael
BOWDEN, Paula
BOYD, James
BRADBURY, Andrew
BRANCH, Alexander John
BRANCH, Jodie Ann
BRANCH, Alexander
BRANCH, Jodie
BRENNAN, Sharon Elizabeth
BRICKNELL, Stacey Louise
BROWN, Anthony
BROWN, Douglas
BROWN, Dawn
BURGESS, Gregory
CAMPBELL, Donald
CAMPBELL, Agnes
CAMPBELL, Ralph
CAMPBELL, Tracie Leanne
CAMPBELL, Matthew Alan
CAMPBELL, Stephen Craig
CAMPBELL, Peter
CAMPBELL, D
CARTER, Anthony
CARTER, Lesley
CASTLE, Noel
CHIVERS, Jill
CLARK, Sonya
CLARK, Karen
CLEAVER, Lance
CLEAVER, Jullian
CLEMENTS, Lauren Margaret
CODY, Peter
CODY, Gale
COLVILE, Julian David Asgill,COOK, William,
COOPER, Steven.COOPER, Julia
COWEN, Brian
COWEN, Josi
COWEN ENTERPRISES
COWLEY, M C
CUATT, Lisa
CUNNINGHAM, Maxwell Peter
CUNNINGHAM, Peter
CUNNINGHAM, Julie
CUTHBERTSON, Guy
CUTHBERTSON, Judith Ann
CUTHBERTSON, Judy
DARE, Joseph Bernard
DAX, Richard Charles Cunningham·
DAX, Anne
DEAN, Brendan Rodney
DEAN, Clare Maree
DELLAS, Emmanuel
DELLAS, Christina
DOBSON, Steve
DOBSON, Robert
DODGE, Phil
DODGE, Phil
DOWNIE, William
DOWNIE, Robert
DUNBABIN, James
DUNBABIN, Margaret
DUNBABIN, Mark
DUNBABIN, Matthew.
EICKHOFF, Joesph
EICKOFF, Lynne
ELLESMERE TRUST PTY LTD
ELLIS, Elizabeth Winsome Ellis
ELLIS, Annette
ENDURANCE PTY LIMITED
ENGELS, Paul
EVANS, Gareth
FAHEY, Gany John
FALZARI, Frank
FALZARIPO, Frank
FALZARIPO, Linda
FEATHERSTONE, James
FEATHERSTONE, Barry
FISHER, Debra,
FLORENCE, Marion Joyce
FLORENCE, Ian Keith
FORWARD, Wilson
FORWARD, Jane
FOSTER, Matthew
FOSTER, Charito
FOX, Kay
FOX, Maureen
G J HOARE & G L HOARE trading as Al PARTY ICE AND FRIDGE HIRE
GAFFNEY, Anita Maree
GAFFNEY, Anita
GHIONI, Gina
GOC, Justin
GOC, Lisa
GOURLAY, Bruce
GOURLAY, Melita
GRAHAM, Marie
GRIFFITHS, A T
GUNN, William John
HALBERT, William
HALES, Steven William
HALES, Wendy Anne
HALLAM, Gavin
HALLAN, Lynette
HANNAN, Bany
HANNAN, Dawne
HANSEN, Jeffrey Scott
HARMON, David
HAVNABITE TUCKER SPOT
HAVN A DIP BUS REPAIRS PTY LTD
HAZELWOOD PTY LIMITED
HEYCOCK, D J
HEYCOCK, M
HILDYARD, Peggy Ruth
HILLS, Anthony Euan
HILLS, Catherine Louise
HOARE, G J
HOARE, G L
HOOKER, Reid
HOOKER, Belinda
HUTCHEON, Stewart
HUTCHEON, Angela
HUTCHINS, Dean
HUTCHINS, Donna
ITCHlNS, Michael
ITCHINS, Saakia
JACKSON, Thomas
JEFFREY, Michael
JENNISON, , Fiona
JOHNSON, Peter
JOHNSON, Sue
JOHNSON, Allan
JOHNSON, Jenny
JOHNSON, L.
JOHNSON, Val
JONES, Nicole
KEAN, Philip
KING, Michael John
KING, Peter
KING, Beverley
KING, Samuel
KING, Vicky
KINGSTON, ., Ian
KNIGHT, Brad
KNOTT, Maxwell
KNOTT, Karen
KNOTT, Max
LARNER, Roger Maxwell
LARNER, Adrianna Martina,
LAWRENCE, Barbara
LAWRENCE, Chris
LEACH, Amy
LEE, Ian
LITTLE, Shami
LITTLE, Karina
LLOYD-BOSTOCK, Chris
LLOYD-BOSTOCK, Dorothy
LOWE, Colin
M T DUNBABIN & V M DUNBABIN
trading as W DUNBABIN & SONS
MAJOR EVENTS CATERING GROUP PTY LTD
MANNING, Murray
MARRIOTT, Kelly
MARTIN, Graham
MAYNE, Alroy
MAYNE, Rhelma
McCULLOCH, Amanda
McGINNISS, Shane
McGINNISS, Sandra
McGREGOR, James
McGREGOR, Catherine
McKENZIE, Donald
McKENZIE, Julie
MEAD, Stephen Denis
MEARNS, Alistair
MEJON PTY LTD
MIDDLETON, Ga1y
MILLAR, Luke·
MILLAR, Anita
MILLS, Jonathon
MILLS, Jill
MUELLE, Susanne Gabriele
MUELLER, Susanne
MUENCH, Claudio
MUNDAY, Gregory
MURRANVILLE GOLF CLUB INCORPORATED
NEWBOLD, Trevor
NEWBOLD, Xanath
NORMAN, Peter
OLIVE, Patricia
PACE, Richard
PANNELL, Tracey
PARKER, Paul
PARKER, Rita
PARKINSON, Paula
PARR, Susan
PARSONS BAY LODGE PTY LTD
PATEL, Ramesh
PENINSULA AQUATIC CLUB INC
PIERCE, Thomas
PINECREST PRODUCTS PTY LTD
PLUMMER, Justin,
PLUMMER, Kristy
PLUMMER, Gareath Edward
PORTER, Ralph Edwin
PORTER, Marlene Anne
PREBBLE, RichardValentine,
PRIEST, Vicki
PRIEST, Arthur Reginald
PRIEST, Jan
PRIEST, Giovanna,
PROKOPIEC, John
PUBLIC TRUSTEE as personal representative
of PEGGY RUTH HILDYARD
RAINEY, Diana Mary
RAINEY, Robert Alexander
RANDT PTY LTD
RATCLIFFE, Noel Jeffrey
RATCLIFFE, Jennifer Faye
RATCLIFFE, Pennelope Susan
ROBERTSON, Kim
ROBERTSON, Todd
ROBINSON, Scott David
ROPER, Garth
ROPER, Sharon·
SAYER, Mark
SCHWERTFEGER, Rosalie
SHARMAN, Mathew
SHARMAN, Carey
S J CONSULTING PTY LTD
SMITH, Gaylene Ann
SMITH, Anthony John
SMITH, Wayne Douglas
SOWERBY, S.
SPENCE, Ronald
SPENCE, Gloria
SSAA BLUE HILLS SPORTING SHOOTERS CLUB INC
STANSBIE, Barbara Alain
STINKENS, Steph,
STOKES, Lindey Albert
STRONACH, Patrick
STROUD PTY LIMITED as trustee for the
J M BIGNELL FAMILY TRUST
STUART, Karen Margaret
STUART, Rodney Lawrence
SUGARLOAF RIDGE PTY LTD
SUTTON, Janice
TATNELL, Laurence Willian
TATNELL, Maureen Yvonne
TAYLOR, Russell
TAYLOR, R
THE ESTATE OF ANTOINETTE FAIL
THE ESTATE OF GUY DAVID CUTHBERTSON
THE ESTATE OF N A REARDON
THOMPSON, Wayne Berkeley
THORPE, Martin
THORPE, Dianna Christina
THORPE, Robert Stanley
THORPE, Dianna
TOLLARD, Mandy
TURNER, Marge
TURVERY, Derek
TURVERY, Lona
VASSIE, Ken
VASSIE, Raine
WAKE, Bronwyn
WAKE, Christopher John
WARE, Dean James
WATSON, Gaylene Joy
WATSON, Timothy William,
WAVELL-BIRD, Adam
WAVELL-BIRD, Sarah
WELLARD, C
WHELAN, Bruce
WHELAN, Robyn
WHISH-WILSON, Michael Patrick
WHISH-WILSON, Grace Theresia
WHITE, Michael
WHITE, Noel
WHITE, Patricia
WHITE BEACH TOURIST PARK
WICKS, Daniel
WICKS, Kiah
WILLAM PTY LTD as trustee for the P S & S B JOHNSON FAMILY TRUST
WILLIAM, Barry,
WILLIAMS, Jason Wayne,
WILLIAMS, Kylie Jane
WILLIAMS, Brett
WILSON, Peter John
WILSON, Noreen Olive
WOOD, Nicholas Dutton
WOOD, Nicholas
WOODWARD, Grant
YEOLAND, Stuart
YEOLAND, Stuart
YOUNG, Jacinta
ZANELLA, Innocente
ZOLYNIAK, Christine
ZOLYNIAK, W
vBARRETT, Melisa Jane
ROBINSON, Hamish
HOWELLS, Scott Francis
BARTON-JOHNSON, James Arthur
BENDER, Will Antony Kirwen
BLOOMFIELD, Karen Jane
BLOOMFIELD, Jason Lawrence
BOMFORD, Brett
BOMFORD, Melissa
BOOTH, Kristy-Lee
BROWN, Jacqueline
CAMPBELL, Matthew John
CASHIN, Gregory John
CASHIN, Jenny Lee
CHURCHILL, Ceri James
CRAWFORD, Debbie Maree
CRONK, James
CULLEN, Shannon Kate
CURTAIN, Leonard
CURTAIN, Toni
DALY, Sonia Louise
DOBSON, Scott William
DOBSON, Linda Margaret
DUNNING, Laurine
ECKHARDT, Peter
EDWARDS, David
FLASSMAN, Thomas
FRASER, Darren James
FRASER, Lisa Maree
GRANT, Wayne Anthony
HANSON, Craig
HASSETT, Sharee Ann
HAWKINS, Robert
HIGGINS, Nigel
HIGGINS, A
LEISHMAN, Paul James
MACKENZIE, Craig Andrew
MACKENZIE, Joanne Maree
NIETZ, Gregory
PURSELL, Stephen
RANSLEY, Colin
RANSLEY, Yvonne Patricia
RHODES, Sean Michael
RICHARDS, Heath Daniel
THOMPSON, Margot
VERNON, Desmond Frederick
YAXLEY, William Edward
YAXLEY, Helen Lyall
vBARRETT, Melisa Jane
ROBINSON, Hamish
DELIVERED ON: 2 July 2021
DELIVERED AT: Hobart
HEARING DATES: 27 April 2021 – 19 May 2021, 2 June 2021, 2 July 2021
JUDGMENT OF: Estcourt J
CATCHWORDS:
Torts – Negligence – Damage and causation – Causation – At common law – Generally – Circumstantial case – Campfire lit in a tree stump and not fully extinguished – Bushfire spread to surrounding areas – Campfire cause of bushfire – Bushfire the cause of the plaintiffs' loss and damage.
Civil Liability Act2002 (Tas), s 13.
Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2019] TASSC 26; Wallace v Kam [2013] HCA 19, 250 CLR 375, considered.
Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18, applied.
Aust Dig Torts [1178]
Torts – Negligence – Standard of care, scope of duty and subsequent breach – At common law – Generally – Relevance of defendant's breach of statutory prohibition not to light fire in tree stump to defendant's breach of duty – Breach of statutory prohibition in this case is a fact among others which combine to answer the question of breach of duty in favour of the plaintiffs.
Fire Service Act1979 (Tas), s 69.
Mills v Meeking (1990) 169 CLR 214; Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48, 239 CLR 420; CAL (No 14) Pty Ltd t/as Tandara Motor Inn v Scott [2009] HCA 47; 239 CLR 390, considered.
Sibley v Kais (1967) 118 CLR 424, applied.
Aust Dig Torts [1161]
Torts – Negligence – Standard of care, scope of duty and subsequent breach – Generally – Escape of fire – Higher degree of care of occupier – Duty breached by lighting a campfire in a tree stump, failing to extinguish the fire and failing to adequately respond to observations of steam from the area of the tree stump.
Civil Liability Act2002 (Tas), ss 9 and 11.
Fire Service Act1979 (Tas), s 69.
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, applied.
Woodhouse v Fitzgerald [2021] NSWCA 54; Vairy v Wyong Shire Council [2005] HCA 62, 223 CLR 422; AD & SM McLean Pty Ltd v Meech [2005] VSCA 305, 13 VR 241; Benic v State of New South Wales [2010] NSWSC 1039; Roads and Traffic Authority of NSW v Refrigerated Roadways PtyLimited [2009] NSWCA 263, 77 NSWLR 360, considered.
Aust Dig Torts [1160]
Torts – Negligence – Standard of care, scope of duty and subsequent breach – Generally – Where invitee lights a fire on occupier's land with occupier's permission and fire escapes from land – Occupier under a non-delegable duty to ensure invitee took reasonable care to extinguish fire – Duty not discharged.
AD & SM McLean Pty Ltd v Meech [2005] VSCA 305, 13 VR 24; Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2019] TASSC 26; Leichhardt Municipal Council v Montgomery [2007] HCA 6, 230 CLR 22, considered.
Aust Dig Torts [1160]
Torts – Negligence – Contributory negligence – Application of apportionment legislation in cases of contributory negligence – Generally – Liability of jointly negligent occupier and invitee under civil liability legislation – Non-delegable duty and apportionment – The apportionment regime of the Civil Liability Act 2002 applies in the case of a non-delegable duty – A non-delegable duty does not obviate the apportionment process – Responsibility for damage or loss apportioned between defendants accordingly.
Civil Liability Act2002 (Tas), ss 3C, 43A, 43B, 43C, 43G.
Civil Liability Act 2002 (NSW) s 5Q.
Woodhouse v Fitzgerald [2021] NSWCA 54; Leichhardt Municipal Council v Montgomery [2007] HCA 6, 230 CLR 22; Podrebersek v Australian Iron and Steel Ltd (1985) 59 ALJR 492, considered.
Aust Dig Torts [1327]
Torts – Nuisance – Private nuisance – What constitutes and generally –– Reasonable foreseeability of harm is an element of private nuisance – Failure to take reasonable care is not an element – Reasonable use of land in the context of a private nuisance is an enquiry into whether the use of the land is reasonable in how it impacts other properties – Unreasonable use of land – Defendants liable for private nuisance.
Fire Service Act 1979, (Tas) s 69.
Wrongs Act1954, (Tas) s 3.
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79, 42 WAR 287; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Herridge v Electricity Networks Corporation (No 4) [2019] WASC 94; Hargrave v Goldman (1963) 110 CLR 40; Goldman v Hargrave [1967] 1 AC 645, considered.
Aust Dig Torts [1382]
Torts – Nuisance – Private nuisance – Application of apportionment legislation – Liability in private nuisance is not apportionable under the Civil Liabilities Act 2002 – The Wrongs Act 1954 applies to the defendant's contribution proceedings for damages for private nuisance – Contribution assessed accordingly.
Civil Liability Act2002 (Tas), s 13.
Wrongs Act1954 (Tas) s 3.
Aust Dig Torts [1382]
REPRESENTATION:
Counsel:
Plaintiffs: L Armstrong QC and T Cox
Defendant: K Read SC and B Brewer
Solicitors:
Plaintiffs: Hall and Wilcox
Defendant: Dobson Mitchell Allport
Judgment Number: [2021] TASSC 27
Number of paragraphs: 784
Serial No 27/2021
File Nos 3391/2018
3392/2018
3393/2018
ALAN MICHAEL PRESTAGE AND OTHERS
v MELISSA JANE BARRETT, HAMISH ROBINSON
MICHAEL THORNE AND OTHERS
v MELISSA JANE BARRETT, HAMISH ROBINSON
SCOTT FRANCIS HOWELLS AND OTHERS
v MELISSA JANE BARRETT, HAMISH ROBINSON
REASONS FOR JUDGMENT ESTCOURT J
2 July 2021
Introduction
On the evening of 28 December 2012 the first defendant (Ms Barrett) and the second defendant (Mr Robinson) lit a campfire within the remnants of an old tree stump (the old stump), a short distance east of the residence on Ms Barrett's property at 242 White Hill Road in Forcett (the Barrett property). It was a cool night. They lit the fire for warmth and for the enjoyment of Mr Robinson's 10 year old son.
The plaintiffs have settled their action against Mr Robinson and have discontinued their action against him. There remain contribution proceedings between Ms Barrett and Mr Robinson.
It is alleged that Mr Robinson and Ms Barrett set and lit the campfire or, alternatively, that Mr Robinson set and lit the campfire, with Ms Barrett's permission or acquiescence, and they sat by it for some hours. The fire burned down to coals. Some steps were taken by Mr Robinson, and then by Ms Barrett, to extinguish the fire. Mr Robinson says he checked the fire pit the next morning and was satisfied the fire was extinguished.
It is alleged that on or about 1 January 2013 there was some rain and that Ms Barrett who was at the property noticed steam rising from the area of the old stump but did nothing about it.
It is alleged that at around 2pm on 3 January 2013 Ms Barrett looked out from her residence toward the old stump and saw the grass around it on fire. It was a hot, windy day and the plaintiffs' case is that the gusty wind, blowing from the west-northwest, drove the fire immediately into a steep, wooded gully to the south and east of the Barrett residence. The fire then spread rapidly to the east and southeast of Forcett, through Dunalley and eventually across much of the Tasman Peninsula, even jumping across Eaglehawk Neck to the Taranna area.
This is what is referred to as the "2013 Forcett Bushfire". Some 25,520 ha were burned in total, including the property of the test case plaintiff, Ms Sonia Daly, at 12 Fulham Road in Dunalley.
The proceedings
Pursuant to r 559 of the Rules of the Supreme Court 2000 (the Rules), it was ordered on 2 September 2019 that subject to further order of the Court, there be an initial trial of all issues raised by the pleadings in the proceedings, including the fact and quantum of losses suffered by such plaintiffs as may be agreed or ordered (test case plaintiffs), but not including the fact or quantum of losses suffered by other plaintiffs (initial trial).
There are some 400 plaintiffs involved in the present proceedings. It is alleged that the test case plaintiff and the other plaintiffs, as at 3 January 2013, all owned real and/or personal property located at the addresses that are identified in respect of each of them in Schedule 1 to the uniform statement of claim filed in respect of each of three writs which comprise the proceedings.
The proceedings are not, therefore, "representative proceedings" or "class actions" under Part VII of the Supreme Court Civil Procedure Act 1932 (SCCPA). Rather, the Court made orders pursuant to the Rules to the effect that there be an "initial trial" in which the claim of a "test case" plaintiff or plaintiffs would be determined to finality, and in relation to the other plaintiffs the issues raised by their claims, other than the fact or measure of any loss or damage, would be determined, with questions of loss or damage to be reserved to a further hearing if required.
The plaintiffs' case
On the trial evidence was given, on behalf of the plaintiffs, by the Tasmanian Fire Service (TFS) officers, Messrs Bones and Walkley, of their examination of the weather records (in particular lightning) for the time of the fire, of possible links to other scrub fires in the recent past, of the possibilities of inadvertent ignition (for instance, from a discarded cigarette butt), and the possibilities of ignition somewhere on the Barrett property away from the old stump.
The investigators gave evidence of the physical indicators as to the point of origin of the bushfire. Their conclusion was that the fire was caused by the 28 December 2012 campfire burning down into the bole of the tree stump, and smouldering underground through the root system until it emerged through a crack or hole in the ground and flared into a flame amidst surrounding dry grass on 3 January 2013.
The plaintiffs have sued in negligence and private nuisance.
As to negligence, the plaintiffs argue that ignorance of the law is no defence and that quite apart from the sheer foolishness of lighting a campfire in a wooden receptacle, s 69 of the Fire Service Act 1979 (FSA), which prohibits the lighting of fires in tree stumps, is decisive as to the questions of foreseeability and as to the unreasonableness of the defendants' conduct.
The plaintiffs argue that there can be no dispute that the defendants had control over the risk of harm, namely, the risk that a fire ignited on the Barrett property could escape and become a bushfire, and that the owners of surrounding properties were vulnerable to the defendants' management of that risk.
In short, the plaintiffs contend that there can be no tenable dispute that Ms Barrett and Mr Robinson owed a duty of care in negligence to persons who owned or had an interest in property, or carried on business in the area around the Barrett property.
The plaintiffs say that once a duty to take reasonable care is established, the question as to whether there was a breach of duty amounting to negligence depends upon the analysis mandated by Part 6 of the Civil Liability Act 2002 (CLA). The plaintiffs allege breach in four respects:
(a) lighting the fire on 28 December 2012;
(b) failing to extinguish the fire on 28 December;
(c) failing to inspect the fire pit after 28 December; and
(d) failing to respond to observations of steam on 1 January 2013.
The plaintiffs argue that the defendants must be held to a particularly high standard of care as fire is a notoriously dangerous substance, and fire in a forested area in southeast Tasmania in the summer months is especially dangerous. They say that the stringency of the test to be applied to a defendant will vary according to the inherent risk of the activity being undertaken: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.
As to the breach of that duty by lighting the fire, the plaintiffs rely on s 69 of the FSA, arguing that non-compliance with a legislative norm is prima facie evidence of negligence: Sibley v Kais (1967) 118 CLR 424 at 427. They concede that it is not conclusively so, but argue that in the circumstances of the present case it is compelling. That is to say, that the section is clearly explicable by the risk of hard to detect and hard to extinguish fires in trees or stumps. That provision they say, ought to be taken as the legislative expression of community expectations both as to foreseeability and as to the appropriate reflexive behaviour, namely, "don't light fires" in those places.
Moreover, the plaintiffs contend that:
(a)public information campaigns in Tasmania warn against lighting fires in any stump, log or standing tree;
(b)Ms Barrett was interviewed by Tasmania Police and the TFS following the fire, and disclosed that:
(i)she was aware a permit was required to light outdoor fires during bushfire season;
(ii)her normal practice was to only do burn-offs in winter and autumn;
(iii)she was aware that only a month or so earlier a fire had escaped from a neighbour's property when he was attempting to conduct a burn off;
(iv)she knew it was unwise to light a campfire in the tree stump during summer - and did not think it was a good idea at the time; and
(v)she knew a fire in a tree stump may burn for days.
The plaintiffs contend that the foreseeability of the particular risk of harm, namely, that a fire ignited in the stump could smoulder and flare up some time later, is clearly established, and that there were obvious precautions readily available to Ms Barrett and Mr Robinson. They say that even if a fire were allowed on 28 December, a separate fire pit could have been dug, away from combustible material.
They say that the same considerations as to the foreseeability of a risk of harm from lighting the fire apply to the second and third alleged breaches, namely the failure to extinguish it, and the failure to inspect the pit after 29 December. They say that the risks were actually foreseen, as both defendants took some steps to douse the fire, either by kicking soil over (Mr Robinson) or dousing with a bucket of water (Ms Barrett).
As to the fourth alleged breach, namely, lack of response to the emission of steam from the stump, the plaintiffs claim that Ms Barrett told Mr Robinson, the fire investigators and the police investigators about her observation of steam rising after a rain shower on or about 1 January 2013, which was nearly three full days after Mr Robinson had examined the fire pit on the morning of 29 December. They say that was an obvious sign of a heat source in or near the tree stump which demanded investigation, and if no obvious sign of burning was apparent, then someone needed to dig into the fire pit and around the tree stump to identify the source of heat sufficient to cause steam.
The plaintiffs also plead that Ms Barrett owed them a non-delegable duty and is responsible for the conduct of Mr Robinson as she was the landowner and he was an invitee or licensee on her property. She had a legal right to direct him not to light a fire, and how to manage any fire he did light. The plaintiffs say that if Mr Robinson in fact lit the fire, he did so with Ms Barrett's authority, or at least her acquiescence. The plaintiffs say that Ms Barrett retained a right and an obligation to ensure that Mr Robinson turned over the coals and thoroughly extinguished the fire before he left the property, and that she is liable for his failure to do so.
As to the plaintiffs' action in private nuisance, as an unreasonable interference in the use or enjoyment of interests in land, they say that no issues of "duty" arise and the question is simply whether the defendants caused or allowed an interference in the enjoyment of rights in land by persons entitled to exclusive enjoyment of those rights (whether as owners, lessees or licensees in exclusive possession), which interference was not such as ought reasonably be regarded as an ordinary incident of the particular rights or the particular land. They say that Ms Barrett as owner of her land, and Mr Robinson as an invitee or licensee, can each be liable for any nuisance thus created.
The plaintiffs say that given s 69 of the FSA, there can be no doubt that the lighting of the campfire was a non-reasonable use of the Barrett property. Nor, they contend, can there be any doubt that the escape of the fire onto other lands resulted in an unreasonable interference in the enjoyment of rights in those lands, by the persons holding those rights.
Ms Barrett's case
Ms Barrett on the other hand, contends that this case is principally a causation case. She says that in order to prove that the fire on her property on 3 January was a necessary element of the harm to the plaintiffs, it must be proved that the campfire caused a fire to ignite six days after it had been alight in the immediate area around the tree stump and that it needs to be proved where that fire went. The defence case is that neither of those matters are capable of proof.
Along the lines of a "Merck order" in a class action, (Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26, 355 ALR 20), I ordered, by consent, that the parties formulate "key issues" in the form of questions to be answered in my reasons for decision upon the initial trial.
The parties prepared a document entitled a Key Issues Statement. That document is as follows:
"Causation
1 What was the cause of the Forcett Bushfire?
a Did a smouldering burn in the tree stump and its root system ignite grass on the surface of the ground in the immediate area around the tree stump as pleaded in paragraph 12 of the Statement of Claim?
b If 'yes' to 'a', was that smouldering burn the result of the campfire lit in the tree stump on 28 December 2012?
c If 'yes' to 'b', was the fire seen by Barrett on her property on 3 January 2013 a necessary element of the occurrence of the harm caused to the plaintiffs, alternatively the test-case plaintiff?
2 What was the fire area (footprint) of the Forcett Bushfire?
Negligence
3 If 1 a b and c are all answered favourably to the plaintiffs, did the defendants breach a duty of care owed to persons including the plaintiffs, by:
a lighting the fire,
b failing to extinguish the fire on or after 28 December 2012, or
c in the case of the first defendant (Barrett) – failing adequately to respond to observations of steam alleged by the plaintiffs to be from the area of the tree stump and alleged to have been on or about 1 January 2013?
4 If Barrett owed a duty of care as alleged:
a was the duty non-delegable; and
b if so, is Barrett liable for any conduct of the second defendant (Robinson) within Questions 3(a) or (b) above?
5 If the defendants are or either of them is liable to the plaintiffs in negligence, what apportionment should be applied under the Civil Liability Act (CLA) and the Wrongs Act 1954:
a if Barrett's duty was not a non-delegable duty; alternatively
b if Barrett's duty was a delegable duty.
Nuisance
6 If the campfire was the (or a) cause of the Forcett Bushfire:
a what is the role of reasonable foreseeability in a claim for private nuisance?
b what is the role of reasonable use of Barrett's land, in a claim for private nuisance?
c what is the role of reasonable care, in a claim for private nuisance?
d did the fire cause unreasonable interference with the plaintiffs', alternatively the test-case plaintiff's land?
e is an action in nuisance an apportionable claim under the CLA?
f do the provisions of the Wrongs Act apply to this claim?
Test case plaintiff
7 What is the quantum of loss suffered by the test-case plaintiff (Sonia Daly) and how is the figure derived?"
By reference to the first key issue as to causation, namely whether a smouldering burn in the old stump and its root system ignited grass on the surface of the ground in the immediate area around the tree stump, Ms Barrett says that when the origin of the fire on her property was investigated by the TFS on 5 January 2013, the view was formed, and the police were advised, that the fire had started in the area between "the big log" and "the septic tank" which is an area to the south of the old stump.
She says that her evidence, consistently with her police interview of 5 January 2013, when she said that the fire when first seen by her was 10 to 15 metres to the east of the tree stump and creeping towards it and her house, indicates that the fire could not have started in the immediate area around the tree stump.
She says that the plaintiffs do not plead a case with a point of origin of the fire at least 10 to 15 metres east of the old stump, and that neither the pleading nor the investigation relied on to support the plaintiffs' case can accommodate a finding that, when first seen by her, the fire was 10 to 15 metres to the east of the stump.
With respect to the second of the key issues as to causation, namely, was the smouldering burn the result of the campfire lit in the old stump on 28 December 2012, Ms Barrett says that the evidence shows that the TFS investigators did not trace the root they concluded was responsible for the fire, back to any particular tree or stump, and hence they are not able to provide any direct evidence of connection.
Ms Barrett also says the evidence of Mr Colin Thomas who was commissioned to excavate the area around the stump establishes that his "detailed examination" of the stump revealed no evidence of fire extending from the stump itself via the root structure.
Further, Ms Barrett says that the evidence of arboriculture expert, Mr Philip Jackson, establishes that the roots with apparent orientation almost perpendicular to the subject stump belong to a tree other than the subject stump.
Finally on this key issue, Ms Barrett says that it is possible for a fire to smoulder in old trees or stumps containing much rotted wood internally, for as long as nine months, and that the evidence will indicate a far more vigorous fire than the campfire on 28 December had been lit in the stump in September 2012. Thus, she says, it is to invite speculation to suggest a finding can be made that the December campfire caused a fire to smoulder rather than the September fire.
As to the third issue as to causation, namely, whether, if fire did emanate from the old stump, the fire seen by Ms Barrett on her property on 3 January 2013 was a necessary element of the occurrence of the harm caused to the plaintiffs, Ms Barrett says that her property is situated about 850 metres to the north-west of a property owned by Darren Lawrence at 112 Inala Road, and that whilst the first 000 call in respect of fire in this region on 3 January 2013 was a call at about 2.12pm reporting a fire burning on the Barrett property, which was a small fire likely to be in its early stages, the case to be met pleads that this fire started at around 2pm.
Moreover, Ms Barrett says, that at about 2.15pm a 000 call was made reporting a fire at Inala Road and that the evidence shows that this fire had been under observation by a member of the public from well before 2pm and thus could not be a result of the fire at the Barrett property.
Ms Barrett says that within less than 20 minutes following that latter call, TFS personnel were at 112 Inala Road and by then the fire was well established and had moved from a south westerly position in the vicinity of some dams to the south west of the property at 112 Inala Road, northerly around the property and then continued in an easterly direction. By 3pm, Ms Barrett says, the Inala Road fire was burning at Gangells Road approximately 1.5km from the property at 112 Inala Road. Accordingly, Ms Barrett says that it was the fire that started at Inala Road that caused harm to the plaintiffs and not the fire on her property.
Ms Barrett also says that the question of breach of duty is a live issue and that the evidence establishes that Ms Barrett (and Mr Robinson) acted with the foresight, reactions and conduct of ordinary members of the community.
Further, she says that the risk of harm for the purposes of s 11(2) of the CLA is the risk of the campfire igniting surrounding combustible material and escaping, that the circumstances relevant to the judgment required by s 11(1)(c) of the CLA are those surrounding the particular fire on the Barrett property on the days of the alleged breaches, and that the following facts are important:
(a)Ms Barrett had spent much time clearing around her home to minimise the risk of fire damage to the residence.
(b)She had lit prior campfires and much larger bonfires in the same location on a number of occasions, and there had been no issue.
(c)There has never been any suggestion that one or more of these fires continued to burn underground.
(d)There has never been any suggestion that one or more of these fires escaped or burnt surrounding vegetation.
(e)It was common practice in the Forcett community to eradicate dead stumps by lighting fires in them in this way. Ms Barrett was directed by a neighbour to get rid of the old stump by lighting fires in it.
(f)28 December 2012 was not a day subject to a declaration of total fire ban. The first declaration of fire ban was made on 2 January 2013.
(g)It was a small campfire.
(h)It was lit to enhance the camping experience of a young boy. He and his father slept next to it that night once it had been extinguished.
(i)There is no suggestion that sparks or embers from the fire escaped or caused damage on the night of the camp fire.
(j)When Ms Barrett and Mr Robinson decided to retire the fire had "burnt down", soil was placed on it, and then approximately 15 litres of water poured on it.
(k)The fire pit was examined on the day after the fire and no evidence was found consistent with the fire continuing to burn.
(l)Ms Barrett saw a wisp of steam coming from the pit when it was raining.
(m)It rained in the days after Ms Barrett saw the steam, and at no time after she saw it did she notice anything unusual, or any sign to indicate that the small campfire had not been extinguished.
(n)She did not observe any further signs of smoke, steam or fire coming from the stump remains. She would pass the old stump by foot and by car on numerous occasions each day.
(o)Steam from the stump does not provide evidence that the roots were combusting.
(p)There was a gap of 6 days from the camp fire to the time the plaintiffs say the fire ignited.
As to the plaintiffs' cause of action in nuisance, Ms Barrett says that the pleading adds nothing to the plaintiffs' pleading in negligence because in order to succeed in nuisance the plaintiffs would have to prove that Ms Barrett's interference with a property right of the plaintiffs was unreasonable, and that "if her actions do not depart from the scope of her duty in negligence, neither will they have been unreasonable". And, Ms Barrett says, "the negligence causation issues also apply to nuisance".
Finally as to apportionment, Ms Barrett says that the campfire was lit by Mr Robinson; the decision to light it was his; it was lit for the benefit of his son who was camping beside the stump, and Mr Robinson had the same opportunity as Ms Barrett, to observe the stump and take any precautions which might be found should have been taken. Ms Barrett says that Mr Robinson, by reason of his relationship with her, had as much effective control over the fire and the land as she did.
The plaintiffs' action in negligence
The legal framework
There can be no doubt that Ms Barrett and Mr Robinson owed a duty of care in negligence to persons who owned or had an interest in property, or carried on business, in the area around the Barrett property. So much is admitted in the further amended defence of the first defendant. The defendants had control over the risk of harm that a fire ignited on the Barrett property could escape and become a bushfire, and owners of surrounding properties were vulnerable to the defendants' management of that risk.
As to the question of Ms Barrett's duty of care and the question of the standard of care, the stringency of the test to be applied to a defendant will vary according to the inherent risk of the activity being undertaken: Burnie Port Authority v General Jones Pty Ltd (above).
As to questions of breach of duty, the standard of care, proof of causation and the onus of proof, ss 11, 12, 13 and 14 of the CLA provide a statutory framework, as follows:
"11 General principles
(1) A person does not breach a duty to take reasonable care unless –
(a) there was a foreseeable risk of harm (that is, a risk of harm of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken precautions to avoid the risk.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the potential net benefit of the activity that exposes others to the risk of harm.
(3) For the purpose of subsection (2)(c), the court is to consider the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.
12 Other principles
In a proceeding relating to liability for breach of duty –
(a) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(b) the subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute evidence of liability in connection with the risk.
13 General principles
(1) Prerequisites for a decision that a breach of duty caused particular harm are as follows:
(a) the breach of duty was a necessary element of the occurrence of the harm ('factual causation');
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused ('scope of liability').
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty, being a breach of duty that is established but which can not be established as satisfying subsection (1)(a), should be taken as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach –
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
14 Onus of proof
- GS9@ENIn deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact on which the plaintiff wishes to rely relevant to the issue of causation."
This is a largely circumstantial case in which the plaintiffs allege breach in four respects. It is as well therefore to note what was said recently by this Court in Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4 and also earlier in Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18.
In Brocklands, Blow CJ said at [37]-[47]:
"Circumstantial evidence (Ground 2)
37 … his Honour said that he was satisfied, on the basis of the respondent's expert evidence, supported by the modelling evidence from one of its expert witnesses, Dr Muthumuni, that the appellant had not established a surge event of the magnitude alleged, nor that the respondent's acts or omissions were a necessary element of the harm to the PLC. He went on to set out his reasons for that conclusion at [212]-[258], referring in detail to the evidence of the parties' expert witnesses. At [259] he repeated his conclusion that the appellant had 'not established on the balance of probabilities that there was a high voltage surge event in December 2010 which damaged the PLC'.
38 The proper approach to a case based on circumstantial evidence is as stated by Lord Cairns in Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279:
'… in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.'
39 The case law as to wholly circumstantial civil cases was usefully summarised by Porter J in Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18 at [119]-[126]. The following propositions were made clear by his Honour's analysis:
• 'Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found'. 'A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.' Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J (with whom McColl and Bell JJA agreed) at [55].
• 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances … should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6.
• 'Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation': Langmaid, per Porter J at [124], citing Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, 49 NSWLR 262 per Spigelman CJ at [89]; McDonald v Girkaid Pty Ltd [2004] NSWCA 297, Aust Torts Reports 81-768, per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [104].
40 In Langmaid, the appellant's case was that 'hot work' undertaken by the respondent had caused a fire. There were two other possibilities that had to be considered, namely a possibility that the fire was not caused by hot work at all, and a possibility that it was caused by hot work undertaken by an employee of one of the appellants. At [126], Porter J indicated that it was necessary to acknowledge 'the combined strength of the possibilities that the fire was not caused by hot work at all, and that it was caused by the hot work of the first appellant's employee'. Similarly, in this case, it is necessary to evaluate the 'combined strength' of the possibilities asserted by the appellant.
41 That is not what the learned trial judge did. At the beginning of the passage in his reasons relating to causation, he said, at [157], 'Each of the factual matters upon which the plaintiff relies to prove causation must be proved by it on the balance of probabilities'. His Honour seems to have regarded it as axiomatic that proof of causation in this case required the identification of at least breach of duty that was established on the balance of probabilities to have caused or materially contributed to the appellant's damage. Similarly, counsel for the respondent, in their submissions to this Court, appear to have regarded that as axiomatic. The respondent's submissions as to causation appear to assume that a claim for damages for negligence cannot succeed without the claimant establishing on the balance of probabilities that there has been both a breach of a duty of care and a suffering of harm resulting from that particular breach. However the appellant's contentions are based on the premise that, where there are pieces of circumstantial evidence akin to strands in a cable, it is sufficient to establish on the balance of probabilities that there were breaches of duty, that harm was suffered, and that the harm must have resulted from one or more breaches of duty, even if no individual breach of duty can be identified as causative.
42 This is no ordinary case. I have been unable to find any civil case in which findings have been made as to multiple breaches of duty, damage resulting from one or more of those breaches of duty, and insufficient evidence for the causative breaches to be established. There are certainly cases that stand for the proposition that a plaintiff does not need to establish precisely how an injury was suffered: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 23-24; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, 243 CLR 361 at [53]-[54]; Duma v Mader International Pty Ltd [2013] VSCA 23, 42 VR 351 at [3]; Langmaid v Dobsons Vegetable Machinery Pty Ltd (above) at [141]. However those cases did not involve distinct breaches of duty, competing possible causes of harm, and a shortage of evidence pointing to one or more particular causes.
43 A criminal case involving multiple possible causes of harm has been considered by the English Court of Appeal: Attorney-General's Reference (No 4 of 1980) [1981] 1 WLR 705. That reference related to the trial of a man who was acquitted on a charge of manslaughter. The Crown alleged that he had killed a woman, but the woman's body was never found. On the evidence there were three possible causes of death. She might have died as a result of the accused pushing her and causing her to fall and hit her head, or as a result of the accused strangling her with a rope, or as a result of him cutting her throat. The trial judge held that the Crown bore the burden of proving beyond reasonable doubt which act caused the woman's death, and that the evidence was insufficient for the jury to be satisfied beyond reasonable doubt that any particular act was the cause of death. He therefore directed an acquittal. Ackner LJ, reading the opinion of the Court of Appeal, said, at 710:
'... this reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is "No, it is not necessary to found a conviction to prove which act caused the death". No authority is required to justify this answer, which is clear beyond argument ...'.
44 For a jury to convict on circumstantial evidence alone in a criminal case 'the circumstances must exclude any reasonable hypothesis consistent with innocence': Chamberlain v The Queen (No 2) (1984) 153 CLR 521 per Gibbs CJ and Mason J at 536. There is nothing in that principle that requires a jury to conclude that an accused person committed the crime charged in a particular manner when the evidence leaves open the possibility that the accused committed the crime in two or more ways, each of which are consistent with guilt.
45 In civil cases, when harm is shown to have resulted from one or more breaches of duty by a tortfeasor, and there is uncertainty as to which breach of duty caused the harm, it would be extremely unjust if plaintiffs were required to establish on the balance of probabilities which particular tortious act or acts resulted in the harm. It would be most unjust if a tortfeasor could escape liability as the result of a plaintiff being unable to discharge such a burden. A plaintiff might establish on the balance of probabilities that he had suffered damage as the result of a defendant's negligence, but recover no damages because there were two or more breaches of duty that could have caused the harm, and no individual breach of duty could be identified as causative. Furthermore, tortfeasors committing multiple distinct and varied breaches of duty would enjoy an advantage not shared by tortfeasors responsible only for single breaches of duty.
46 A number of the leading cases about causation in the law of negligence contain statements of principle which, at face value, might be taken to suggest that a plaintiff bears the burden of establishing causation by a particular breach of duty. For example, in Chappel v Hart (1998) 195 CLR 232 at [23], McHugh J said that 'causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty'. However such pronouncements should not be taken out of context and treated as authority in relation to a point of law that they were not intended to relate to.
47 As a matter of principle, if a plaintiff establishes on the balance of probabilities that a defendant owed him duties of care, and breached them, and that he suffered damage as a result of the plaintiff breaching such duties, then that plaintiff must be entitled to recover damages, even if it is not possible to establish on the balance of probabilities which breaches were causative. It follows that the learned trial judge was required to treat this case as a 'strands in a cable' case, and to assess the combined strength of the possibilities that the appellant's damage had been caused by the various asserted breaches of duty on the part of the HEC and Aurora. By considering the evidence as to each asserted breach of duty in isolation from the evidence as to the other asserted breaches, his Honour erred in the manner asserted by ground 2 of the notice of appeal." [Emphasis added.]
In Brocklands I said at 169-176
"169 Factual causation in this case of course involves consideration of s 13(1) of the Civil Liability Act. The 'but for' test is the relevant inquiry: Adeels Palace Pty Ltd v Mourbarak [2009] HCA 48, 239 CLR 420 at [42]-[45]; Strong v Woolworths [2012] HCA 5, 246 CLR 182 at [18].
170 Notwithstanding a somewhat ambiguous statement by the learned trial judge at [157] of his reasons, as to the role of s 14 of the Civil Liability Act, that section is concerned with the onus of proof of factual causation, that is to say, causation as a fact. The words of the section '[i]n deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact on which the plaintiff wishes to rely relevant to the issue of causation', cannot sensibly be construed as requiring that every intermediate fact asserted as a strand in the cable of a circumstantial case going to causation must itself be proved on the balance of probabilities. Nonetheless, the respondent embraces such a construction in its submissions on this appeal, relying on Chamberlain v The Queen(No 2) [1984] 153 CLR 521 at 536. Chamberlain is no longer authority for the proposition advanced by the respondent.
171 As was pointed out in Neill-Fraser v Tasmania [2012] TASCCA 2 at [156]-[160] by Crawford CJ, with whom the other members of the Court of Criminal Appeal agreed:
'156 It was submitted for the appellant that the direction was erroneous and that the judge should have directed the jury that they could not return a verdict of guilty unless they were satisfied beyond reasonable doubt of the facts essential to their reasoning towards proof beyond reasonable doubt of each element of the crime.
157 Although arguments of that kind would have been expected following Chamberlain v R (No 2) (1984) 153 CLR 521, their validity was put to rest, for the circumstances of this case, by Shepherd v R (1990) 170 CLR 573. A direction that an intermediate circumstantial fact must be proved beyond reasonable doubt before it may be used as a basis for inferring guilt, is not usually required.
158 What is often quoted as a classic statement on the position is that of Lord Cairns in Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279:
"… in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel."
159 In Shepherd v R, Dawson J, at 579, explained the position concerning whether an intermediate fact must be proved beyond reasonable doubt. His Honour said:
"On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp.412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."
160 Where, therefore, the evidence consists of a number of strands in a cable from which guilt is sought to be inferred, no fact or facts being by themselves necessary for the ultimate inference of guilt, the jury should not be instructed that they must be satisfied that each such fact must be proved beyond reasonable doubt. Instead they may consider the accumulation of the evidence and draw an inference of guilt from a combination of a number of facts, none of which alone would justify a finding of guilt. The matter was explained in Shepherd v R by Dawson J at 579 – 580:
"As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately". [Emphasis added.]
172 Porter J in his judgment in Neill-Fraser, further explored the notion of indispensable links in a chain of reasoning towards an inference of guilt and the place for a 'prudential direction'. He said at [226]-[228]:
'226 By ground 6 the appellant complains that the trial judge was wrong in directing the jury that the facts and circumstances from which a conclusion of guilt may be drawn need only be established to the satisfaction of the jury. The appellant argued that the trial judge should have directed the jury that they could not return a verdict of guilty unless they were satisfied beyond reasonable doubt of the facts essential to their reasoning towards proof beyond reasonable doubt of each element of the crime. Ground 7 makes that complaint specifically referable to the issue of motive.
227 As Crawford CJ has held, the primary answer to the appellant's submissions is to be found in Shepherd v R (1990) 170 CLR 573, and the well-known statements of Dawson J at 579 – 580, the particularly relevant parts of which have been set out in the learned Chief Justice's reasons at [159] – [160]. It is not the law that in all cases a trial judge should instruct the jury that they must be satisfied beyond reasonable doubt of all facts essential to their reasoning leading to satisfaction of guilt. However, it may sometimes be necessary or appropriate to identify an "intermediate fact" and to tell the jury that they must be satisfied beyond reasonable doubt of such fact before the ultimate inference of guilt can be drawn: Shepherd per Dawson J at 579, R v Merritt [1999] NSWCCA 29 at [70]–[71].
228 In Shepherd, Dawson J said that such a warning would not be appropriate where the evidence consisted of strands in a cable rather than links in a chain, the metaphor of Wigmore's which Callaway JA has described as helpfully describing "two distinct kinds of reasoning": R v Kotzmann [1999] 2 VR 123 at 129 [16]. As Callaway JA went on to point out at [17], it does not follow that "wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt". [Original emphasis] Much depends on the fact or issue in question. As his Honour explained: "One or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable.'
173 His Honour went on to say at [231-[232]:
'231 At least in Victoria, there is an abundance of authority for the express proposition that a judge may choose to direct, as a matter of prudence, that a particular fact or matter in a circumstantial case should not be used unless the jury is satisfied beyond reasonable doubt of that fact or matter. A judge is not required to form the view that the evidence is an indispensable link in a chain of reasoning before giving such a direction. Consciousness of guilt evidence is often the subject of a "prudential direction": see for example the discussion in R v Ciantar (2006) 16 VR 26.
232 In R v Kotzmann (above) it was held that the standard of proof of "additional facts" in a circumstantial case was as explained in Shepherd, and that it did not follow from later High Court cases that there were some additional facts that had to be proved beyond reasonable doubt even though they were not, in the strictly logical sense, indispensable links in a chain of sequential reasoning. Callaway JA referred to the need to direct a jury that it must be satisfied beyond reasonable doubt of a lie, if the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, and at 130 [21] said:
"Similarly, it is customary to direct a jury, for prudential reasons, that they should not act on a confession unless they are satisfied beyond reasonable doubt that it was made and that it was true … The confession may simply be part of the evidence. It may be the proverbial straw that breaks the camel's back." [My emphasis.]
174 In the present case I can identify no indispensable link in a chain of sequential reasoning. To my mind the case is purely a 'strands in a cable' case, albeit some individual strands may rely on sequential reasoning.
175 The respondent's written submissions are permeated with the contention that no error has been identified by the appellant as to the trial judge's findings because:
'As identified by His Honour at [157], Brocklands bore the onus of proving each fact on which it relied, relevant to the issue of causation, on the balance of probabilities. Proving that something "could" have occurred does not meet that onus.'
176 If that is what the learned trial judge meant at [157] and I do not believe it was, then as a statement of law it is incorrect. That such a finding has not been the subject of a specific ground of appeal is of no consequence as this Court, in reviewing the whole of the evidence, is required to approach the circumstantial evidence in accordance with the law."
The full text of that which was written by Porter J in Langmaid (above) at [119]-[126] is as follows:
"Questions of proof – the relevant principles
119 By virtue of the Civil Liability Act, s13(1)(a), the appellants need to establish that it was more probable than not that the respondent's breach of duty was a necessary element of the fire's occurrence. That involves the drawing of inferences. The discharge of the civil burden of proof was discussed by McDougall J (with whom McColl and Bell JJA agreed) in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246. At [55], his Honour summarised the position as follows:
'(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.'
120 In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 – 6, the High Court noted the distinction between the application of the criminal and the civil standards of proof to circumstantial evidence, saying as to the civil standard:
' … you need only circumstances raising a more probable inference in favour of what is alleged. … [W]here direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture …
All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.'
121 In Jones v Dunkel (1959) 101 CLR 298 Dixon CJ at 304 said that an inference must not be drawn where it is but 'a choice among rival conjectures'. There must be '… evidence supporting some positive inference … and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind'. His Honour referred to the above extract from Bradshaw (then unreported but the passage was set out in Holloway v McFeeters (1956) 94 CLR 470 at 480–481), and observed:
'But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.'
122 It follows, of course, that 'a court is not authorised to choose between guesses, even on the ground that one guess seems more likely than another or others': ACCC v Metcash Trading Ltd (2011) 198 FCR 297 per Buchanan J at 306 [31]. However, a court is entitled to draw an inference from 'even slim circumstantial facts that exist so long as that goes beyond speculation': Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq (Ipp JA and Davies AJA agreeing); Condos v Clycut Pty Ltd [2009] NSWCA 200 per McColl JA at [68] (Campbell and Macfarlan JJA agreeing).
123 Expert opinion of a possibility can be used as circumstantial evidence, and a finding of factual causation may be made where the expert evidence 'does not rise above the opinion that a causal connection is possible'; the evidence will be sufficient if, but only if, the materials justify an inference of probable connection: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 per Glass JA at 197. See also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 per Spigelman CJ at 274 – 275 [79] – [83] and, in the context of a 'fire' case, McDonald v Girkaid Pty Ltd [2004] NSWCA 297 per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [103], [107].
124 Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation: Seltsam (above) per Spigelman CJ at 276 [89]; McDonald v Girkaid Pty Ltd (above) at [104].
125 As to the ultimate question of proof on the balance of probabilities by inference, in Lithgow City Council v Jackson (2011) 244 CLR 352 at 386 [94], Crennan J noted that whilst a more probable inference may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences so as to avoid guess or conjecture. Her Honour continued:
'In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable.'
126 It is no answer to the question of whether something has been demonstrated as being more probable than not to say that there is another possibility open; the determination of the question turns on consideration of the probabilities: Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 per Hayne JA at 430; Strong v Woolworths Ltd (2012) 246 CLR 182 per French CJ, Gummow, Crennan and Bell JJ at 196 – 197 [34]. In this case, it might be shown that it is more probable than not that the respondent's hot work caused the fire, while at the same time acknowledging the combined strength of the possibilities that the fire was not caused by hot work at all, and that it was caused by the hot work of first appellant's employee, Mr Michael Cooper." [Emphasis added.]
Porter J also observed in Langmaid at [132]-[133]:
"132 As to whether hot work caused the fire, the relevant omissions are the same irrespective of whose hot work it was. The appellants call in aid the approach described by Dixon J in Betts v Whittingslowe (above). The question is whether the omissions amounting to the breach, coupled with an accident of the kind that might thereby be caused, is enough to justify a factual inference about a causal link. In Amaca Pty Ltd v Booth (above) at 57 [49], French CJ highlighted the words 'that may thereby be caused', and explained that the logic in the approach 'encompasses the case of an ex ante probability, of accident given breach, supported by a causal explanation linking breach and accident'. Causal explanations can lie in expert evidence. No doubt those explanations can be general, as in that case, or specific.
133 Whilst in some cases the inference might be drawn on that basis, that is not a rule of law; 'It is an aspect of an available process of drawing of conclusions about causation': Bauldserstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 per Allsop P (Beazley and Campbell JJA agreeing) at [240]. In Roads and Traffic Authority v Royal (2008) 82 ALJR 870, Kirby J at 888 [88] said that Dixon J in Betts had helpfully explained the way in which a finding of a breach of duty 'may open the way for (whilst not compelling) an inference of causation-in-fact.' See also Kiefel J at 897 [139]–[140]. For that process to alone justify drawing the inference, 'the facts proved need to be compelling': Stitz v Manpower Services [2011] QSC 268 at [109]. 'The facts must warrant no other inference inconsistent with a defendant's liability': Betts per Dixon J at 649." [Emphasis added.]
And finally of relevance, at [139]-[141] Porter J said:
"139 It might be thought that it is unlikely a fire would occur in the circumstances established in this case, but there is a clear distinction between the prospective assessment of a risk of something happening, and the retrospective exercise of making findings of fact about what has happened. In Amaca Pty Ltd v Booth (above) French CJ said (omitting references):
'42 It is necessary, nevertheless, to reflect upon the relationship between risk and causation. In ordinary usage "risk" refers to a hazard or danger or the chance or hazard of loss. Assessment of the risk of an occurrence is prospective in character. It can be expressed as an ex ante probability that the occurrence will occur. If quantifiable, that probability may be expressed numerically as a figure greater than "zero" up to "one" which denotes certainty. The range of probabilities may be traversed by terms such as "mere possibility", "real chance", "more likely than not", "highly likely" and, ultimately, "certainty".
43 The existence of an association or a positive statistical correlation between the occurrence of one event and the subsequent occurrence of another may be expressed as a possibility, which may be no greater than a "real chance" that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event "creates" or "gives rise to" or "increases" the probability that the second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a "mere possibility" or "real chance" that the second event would occur given the first event. There may of course be cases in which the strength of the association, as measured by relative risk ratios, itself supports an inference of a causal connection.'
140 Lack of evidence about the precise mechanism of how injury or damage came to be suffered does not necessarily prevent the inference being drawn about the causal link. To begin with, a plaintiff does not have to establish that the precise sequence of events leading to the particular damage was foreseeable. It is sufficient if the general kind or type of injury is reasonably foreseeable: Chapman v Hearse (1961) 106 CLR 112 at 121; Rosenberg v Percival (2001) 205 CLR 434, per Gummow J at [64]; Metrolink Victoria Pty Ltd v Inglis (2008) 25 VR 633 per Neave JA at 636 [12] .
141 As to causation, the law does not insist on the need to demonstrate the mechanism of loss or damage 'to a fine degree': Duma v Mader International Pty Ltd [2013] VSCA 23 per Neave JA at [3]. See also Strong v Woolworths Ltd (above) at 196, [34], and Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361 per French CJ and Gummow J at 381 – 382 [53] – [54]." [Emphasis added.]
Evidence as to the behaviour of the fire at White Hill Road
Melissa Barrett
Ms Barrett was interviewed by police on video on 5 January 2013 and again on 7 January at her property in a video recorded walk around the fire scene. She also gave evidence on the trial and was cross-examined.
It is necessary to approach with some caution all that she has said as to the first sighting by her of the fire on 3 January. First she was no doubt traumatised by the sudden outbreak of the fire and was naturally more concerned to stop it threatening her house and her horse and her neighbours than she was to observe the precise dynamics of the fire. Second Ms Barrett appears to be constitutionally discursive and such descriptions of the outbreak of the fire as she was able to give are very hard to follow. Third, she obviously believed when she was interviewed by police, at first at least, that the fire started as a result of the campfire that was lit in the old stump on 28 December 2012 and to my mind she was, understandably, defensive in her statements.
In general I am inclined to place more weight on her recollections as conveyed to police when her memory was fresh in early January 2013, than I am on her recollections given in evidence on the trial, over eight years later. And I place no weight on her evidence where it conflicts with the evidence of fire fighters who attended her property on the day and subsequently.
The very first account of observing the fire made to police by Ms Barrett was as follows:
"Went out on the deck and went to light the cigarette and that's when I saw everything on fire … I was holding out to have that cigarette and that yeah um and that's when I looked to the right and saw both my um both oh my property on both sides of the um um the little flat sort of driveway on fire, that was already on fire … Cause I just, I just saw th... I just saw the flames and it was coming towards the house and it was coming towards the rocky, my rocky steep driveway as well. Um so it was burning towards me... And it was also burning the other was so it was burning both ways. Um and that's yeah so I don't know how steep my other one but I would say, say if that, say if that driveway was um, it just, it just seemed be um I saw the fire just um on that right side, it, it's at that slightly little gentle slope. So it's like a sort of a peak area um so I'm just trying to think from the house, if I walked it from the house um I reckon it would have been twenty or thirty meters away from the house." [Emphasis added.]
A little later in the first police interview Ms Barrett added:
"Um and I was, I was actually running out of air and collapsing cause I was constantly filling those water things up and I was doing from the top cause it was just coming to the house and coming to Doug's paddock on the bottom like would have jumped the rocky road."
In her second interview she said:
"Just about to light the cigarette, looked to the right of me now um, yeah my right, sorry I get confused with my left and right, looked to the right of me and straight away I saw um, whether that's five or ten metres wide of um, very light colour flames … Um, and they would have been a good um, that red, ah, sorry that far pink line you can see … It actually started beyond that and then um, I just froze and said a lot of swear words um, and then went into shock and thought what do I do and I, then I realised how far away it was, I thought great I need to, as I'm running back inside I can control this. Dropped everything inside, came back out, when I came back out and looked again it had actually ignited um, the other side of the ah, just um, well the driveway that just slightly inclines it had actually leaped across and both of them were travelling um, just seconds they'd reached down the bottom of the road and I knew the other bit was then coming forward and it was actually starting to go around um, down the steep drive um, in the paddock, well in the part there of the land."
The reference to "that far pink line" is a reference to a pink line that had been painted on to the ground by Ms Barrett, at the request of TFS investigators on 6 January 2013, in order to mark the point where she had told them that the fire was in relation to her house when she first saw it, looking east from her deck. She told police that from first seeing flames until putting water on the fire, it had crept about two or three metres to within six metres of the house. She said that it was like an even line coming towards her.
It is difficult to glean much more of assistance from Ms Barrett's police interviews as to the state and behaviour of the fire when she first saw it, and her evidence on the trial was not given with any greater precision. It is clear that when she first saw flames the fire had already taken hold and that it was coming towards the house as a grass fire, backing against the wind, and was also burning strongly to the east among trees as far as she could see down towards the lower part of what she called her flat driveway, as well as burning to the west back to her adjacent rocky driveway towards the paddock where she kept her horse.
I set out the extract from the trial transcript where Ms Barrett was examined in chief on this issue:
"MR READ SC: Yes. (Resuming): So we'll come to the 3rd, a farrier came to look after Doug, we've heard about that, and he left and you were – and I'll try and put it politely, fiddling around wondering what you were going to do?……That's right, it was a dam hot day.
Yeah, and you walked out onto your balcony and you saw some – you saw something over to the east?……That's correct.
Right, now what did you see?……It was – because it was such a hot day, a bright day, I could just see – it's very hard to explain, but it was so far in the distance and it was – it was like a white light or spark, it was just like say, if you had a bit of metal or a bit of glass there and that's – and that's what I first saw.
Right, and what – what followed from that?……I did a double – double take and then I realised that's moving because it was – wasn't on the top of the property it was coming up the hill but I can't see down my hill because of where I stand, that I just saw it reach where it starts to come up my hill and that's when – then I saw other flames or just this white flickering going on and that's when I ran for my life and knew that it was a – there was fire on my property.
Now you've been using your hands during all of that.……Yeah –
That's fine, Ms Barrett, but I just need to record for the transcript - ……Yeah, yeah.
- you were indicating moving towards yourself, so that - ……So from the distance –
Yes.……- when I actually looked out to the east, I actually looked – I had to look past the pit –
Yes.……- the camp – and to actually just see the flickering in amongst, I have gum trees there –
Yes.……- and that's when I saw it first flicker there, and then as my eyes darted, you could see little flickers elsewhere coming up the hill.
Right. Now, up the – ?.......There was nothing on the hill.
Yes. So up the hill, is that towards your house or away from your house or – ?.......That's towards my house. So that's, say, the east coming towards the west.
Thank you?.......Directly in line with my house.
Right. Now, leaving aside calls to emergency services and just cutting to the chase of what you did in relation to that fire, you got some water and went down there; is that right?.......That's correct.
Yep?.......I raced –
Right. Well, just a moment, please. When you went down there, what it is that you saw?.......When I went down there?
Yes, you took some water down. What did you see?.......When I took my watering can, I then – when I got to before (indistinct word) down my property, when I actually stood there and could see all the rest of my property, that was all on fire.
Right?.......Going that way. It was dancing all over the place, coming up – going up –
Going – you're indicating going to the north?.......It was going to the north. It was coming up to the west and that was what I was focussing on.
Right. Now, what did you do with the water?.......I tried to put bits out because there was – it was coming towards the house and it was going around towards Doug's paddock.
Right. The first can of water that you had – ?.......Yep. I had a bucket – what I can remember is that I had a bucket –
Right?....... – and I had a watering can and I found that I was – with the bucket, it was useless.
Yes. All right. Just – the very first lot of water, which bit of the fire did you put it on?.......I put it on the first bit that I saw coming up, because that was my first threat.
Coming up towards the house?.......Yes, correct.
Right. Thank you. And you continued to go backwards and forwards to get more water?.......I did.
Right. And what happened to the fire?.......It just kept on burning.
In what direction?.......Everywhere. Coming – it kept on coming up, crawling towards the house and it was just beaming around the sides of the hill still coming north-westerly to go around the front of the property and take the paddock out that Doug was in.
That Doug was in?.......That –
Doug's paddock. Yep. Okay. Now, as a result of that, did you go down what we know as your steep driveway?.......There was – yes, there was, but there was no point. It was everywhere. So my focus was just trying to – it was sporadically coming up at all different ways, so I was just running around trying to do whatever was closest to the house, just kept on trying to put that – because it was on both sides coming up. So it wasn't only on that east side directly in line with the house. It had also come up on the other side of the driveway towards – so I was just trying to run between everything with a nozzle.
Thank you. Well, when you were down in the steep driveway, a fire truck arrived?.......Yes. In the end, it had got so close to the – I had to protect my horse and leave the rest.
Yes. But a fire truck arrived?.......But a fire truck arrived –
Thank you?....... – and I met them down the bottom of the driveway." [Emphasis added.]
Woodhouse did concern claims both in negligence and in nuisance. But very importantly, the plaintiffs point out, and as will have been observed from what I have earlier written, the nuisance claim was expressly pleaded as based upon the negligent acts of the defendant (see at [45]-[47]). That is to say, the pleading effectively incorporated negligence into the plaintiffs' nuisance case, with the result that the nuisance claim there was framed as being based upon a failure to take reasonable care. This they say, and as I have already observed, means that the observations of Basten JA on the question of whether nuisance ordinarily depends upon a failure to take reasonable care were obiter dicta.
Nevertheless, the plaintiffs say, the Court in Woodhouse did consider the present question. It noted at [37] that the plurality in Burnie Port Authority had reserved some continuing role for nuisance separately from negligence, but the analysis they then undertook as to the scope of that "unparticularised qualification" did not address in any considered way the plaintiffs' analysis on the present question as set out above. The critical distinction between reasonable foreseeability (the fault element that the plaintiffs have identified) and reasonable care is touched upon only with reference at [40] to Cambridge Water Co v Eastern Counties Leather Plc. Wagon Mound (No 2) was cited only in a footnote acknowledging that it was cited in Cambridge ([40] ) and Goldman v Hargrave (above), was not addressed at all in the present context. The Victorian first instance decisions in Riverman Orchards (above) and Butler Market Gardens (above) were likewise not mentioned.
The plaintiffs say that it may be accepted that Woodhouse, albeit obiter, does appear to hold that nuisance requires, as an element, a lack of reasonable care by the defendant, but in their submission it is not binding on me, for the reason that Woodhouse on this issue is squarely at odds with "the anterior, superior and binding authorities in Goldman v Hargrave, The Wagon Mound (No 2) and Burnie Ports."
To the extent it is not already clear from what I have written, I accept the plaintiffs' submission.
Thus, I accept that the principle established by the first two of those last mentioned cases, and "preserved" in the third, is that the "fault" required for nuisance is the doing of the act of commission or omission in circumstances where it was reasonably foreseeable that it might result in unreasonable interference in the enjoyment, by persons in the class including the plaintiffs, of interests in land. There is no further requirement that the act or omission also involve a failure to take reasonable care.
It follows that I do not accept the submissions of the first defendant on this issue, to which I will now turn.
As to the role of reasonable foreseeability and reasonable care in a claim for private nuisance, Ms Barrett says, citing, Bryson JA in Sutherland Shire Council v Becker [2006] NSWCA 344, 150 LGERA 184 at [119] citing Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; see also Sedleigh-Denfield v O'Callaghan [1940] AC 880, at 904-905, as cited by Preston CJ in Robson v Leischke [2008] NSWLEC 152, 72 NSWLR 98 at [44]-[46] and Bryson JA in Sutherland Shire Council v Becker at [118], says that strict liability for nuisance is no longer good law. The plaintiffs do not submit to the contrary.
She submits that it is well established, as noted by Bryson JA in Sutherland Shire Council v Becker (above) at 119 citing Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617, at 639 and Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282, at 284 that nuisance necessarily involves fault of some kind. And she says, citing Preston CJ in Robson v Leischke (above) citing The Wagon Mound (No 2), at 639-640; Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, at 522, 524; Solloway v Hampshire County Council (1981) 79 LGR 449, at 452, 457-458, 460 and 461; City of Richmond v Scantelbury [1991] 2 VR 38, at 45; Cambridge Water, at 300; Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321, at 332 [29], that such fault generally involves foreseeability. This analysis does not to this point appear to differ from the gravamen of the plaintiffs' submission.
I set out in full the following section of the first defendant's written closing submissions as they are not readily capable of a succinct narration:
"In Robson v Leischke[1], Preston CJ held that when a defendant creates the nuisance, the fault element is dependent on the nature of the defendant's conduct and his or her state of knowledge.[2] Citing the English text of Clerk & Lindsell on Torts, Preston CJ noted several possible states of knowledge and conduct of the defendant in a nuisance claim:
[1] [2008] NSWLEC 152, 72 NSWLR 98.
[2] Robson v Leischke [2008] NSWLEC 152 at 142.
'if the defendant deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and that harm is considered by a judge to be an unreasonable infringement of his neighbour's interest in his property…the defendant is liable for the foreseeable consequences.[3]
'if the defendant knew or ought to have known that in consequence of his conduct, harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable … here nuisance and negligence coincide'.[4]
'If the defendant neither knows and intends harm nor is negligent with regard to the consequences of his conduct…Strict liability within the rule in Rylands v Fletcher has been subsumed within the law of negligence by the High Court decision in Burnie Port Authority.[5]
In Butler Market Gardens Pty Ltd v GG and PM Burrell PTY LRD, 'Butler',[6] Richards J noted that factual causation is a central question of whether there was substantial and unreasonable interference with the use and enjoyment of land.[7] Foreseeability is therefore an essential element of nuisance.[8] While this case went on appeal, the grounds of appeal were confined to issues pertaining to damages.
Her Honour referred to the NSW Supreme Court cases of Quick v Alpine Nurseries Sales Pty Ltd and NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd.[9] These authorities traced back to a passage in the Privy Counsel's advice in Wagon Mound (No. 2):
'It is true that negligence is not an essential element in nuisance…although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability…'.[10]
Richards J further stated:
'Their Lordships went on to hold that foreseeability is a necessary element in all classes of nuisance, in that a defendant is not liable for harm that is the direct result of a nuisance if the harm was 'in the relevant sense unforeseeable.[11]There is a relationship between the foreseeability of a risk of harm and a defendant's obligation to act to prevent harm eventuating.'[12]
This line of reasoning accords with the judgement of Hoeben J in Rickard & Ors v Allianz Australia Insurance Ltd & Ors.[13] Citing Lord Wright in Sedleigh-Denfield, Hoeben J made the following observation:
'constructive knowledge for the purposes of nuisance does not equate with foreseeability in negligence. The test is not whether a risk is farfetched or fanciful, but whether there is evidence of facts, matters or circumstances from which the defendant ought to have known of the nuisance'.[14] "
[3] Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-39], p 1184; see the application of this reasoning in the judgment of Ward J in Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248.
[4] Ibid, 20-40, p 1185.
[5] Ibid, 20-41, p 1185.
[6] [2018] VSC 768.
[7] At 55.
[8] Butler Market Gardens Pty Ltd v GG and PM Burrell PTY LRD per Richards J at 98.
[9] [2013] NSWSC 309 .
[10] At 94 citing Wagon Mound (No 2) at 640.
[11] At 95.
[12] At 96.
[13] [2009] NSWSC 1115.
[14] At 188.
From these cited passages the first defendant draws the following proposition;
"Applying that line of reasoning to this case, the relevant question then becomes whether the first defendant maintained actual or constructive knowledge at the time of lighting the campfire, or at the time of observing steam in the area around the campfire, that such action, or inaction, would likely cause fire to escape her property and cause an unreasonable interference to her neighbours land.[15] The plaintiff's claim in nuisance is dependent on pleading and establishing such knowledge. No such constructive or actual knowledge is available on the evidence. The claim in nuisance must fail for that reason alone.[16]"
[15] Per Ward J in Quick v Alpine Nurseries Sales Pty Ltd at 144.
[16] NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2013] NSWSC 309, at 947.
I do not accept the first defendant's submission that it is necessary to plead the actual or constructive knowledge suggested by the first defendant. The pleaded claim is in private nuisance and, to the extent that there is any real difference in the parties' positions on the fault element in nuisance, I prefer the plaintiffs' analysis of the relevant authorities as leading to the conclusion the fault required to be proved for nuisance is the doing of the act or the making of the omission in circumstances where it was reasonably foreseeable that it might result in unreasonable interference in the enjoyment, by persons in the class including the plaintiffs, of interests in land.
And, as will be seen, I am of the view that the relevant fault element is made out in the present case and that at the very least the first defendant and Mr Robinson ought to have foreseen that the campfire lit in an old stump in almost midsummer could escape Ms Barrett's property and cause an unreasonable interference to her neighbours' land. Indeed the facts show that this was actually foreseen by Ms Barrett. There is no dispute in this case that harm to persons who held interests in land across the wide and unpredictable area across which a bushfire might spread, if a fire on Ms Barrett's property happened to escape, was plainly foreseeable to a reasonable person.
I set out, again in full, as they are not readily susceptible to narration, the balance of the first defendant's written closing submissions on the present issue:
"Davies A-J gave consideration to when an action should be pursued in nuisance or in negligence in Bonic v Fieldair (Deniliquin) Pty Ltd.[17] His Honour referred to the reasoning in Burnie Port and noted the following:
[17] [1999] NSWSC 636
'The principles of negligence are entirely apposite to the situation, there having been an unintended harm to the Bonics' property arising from a one-off circumstance … The principles of nuisance, insofar as they are different from those of negligence, are more appropriate to cases of intentional harm and to cases where damages or an injunction are sought in relation to an ongoing situation where issues of an environmental nature have to be considered'.[18]
[18] At 12. This line of reasoning was cited with approval in NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2013] NSWSC 309.
The acts creating the alleged nuisance were neither deliberate nor reckless in a way which the first defendant knew or could reasonably foresee would cause harm to the plaintiffs. The requisite element of fault cannot be established and the claim must fail.
We refer to Goldman v Hargrave where Lord Wilberforce stated that the tort of nuisance may comprise a wide variety of situations in some of which negligence plays no part, in others of which it is decisive.[19] The plaintiff's case, as in Daniel Herridge & Ors v Electricity Networks Corporation t/as Western Power, 'Herridge', rests upon the defendant's failure to take reasonable care.[20]
[19] [1967] 1 AC 645, at 461.
[20] Per Le Miere J at 544
The High Court case of Hargrave v Goldman established that a nuisance claim following an accidental fire requires a breach of reasonable care by the defendant.[21] The plurality rejected notions of strict liability to find that where the landowner does not cause the nuisance but allows it to arise, liability is dependent on breach of duty.
[21] [1963] 1 AC 645, 110 CLR 40 , per Taylor and Owen JJ at 51-52.
In the pivotal High Court case of Burnie Port Authority v General Jones Pty Ltd, 'Burnie Port', the majority held that the rule in Rylands v Fletcher had been absorbed by the principles of negligence, under which a person who takes advantage of the control of premises to introduce a dangerous substance, to carry on a dangerous activity or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another.[22]
[22] [1994] HCA 13; (1994) 179 CLR 520 per X at 556-557.
Burnie Port cemented the role of reasonable care and reasonable foreseeability within nuisance claims concerning the introduction of a dangerous substance such as fire on one's own property. Their Honours Mason CJ, Deane, Dawson, Toohey and Gaudron JJ held that:
'Although the standard of care is that which is reasonable in the circumstances, in the case of such substances or activities a reasonably prudent person would exercise a higher degree of care and, depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety'.[23]
In Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management, 'Southern Properties', McLure P found that the plaintiff's claim in nuisance must fail as the trial judge in that case had found that the defendant had not acted negligently.[24] McLure P went on to find that fault of the defendant may be a relevant consideration in a nuisance claim, however, a defendant's duty may not necessarily be discharged by the exercise of reasonable care.[25]
Southern Properties is distinguishable as that case was concerned with damage resulting from smoke, not from fire.[26] Smoke is not an inherently dangerous substance. Southern Properties was not a case where the existence or scope of a duty was well-established or well understood except at a high level of generality.[27] Consequently, Burnie Port was only considered in a limited sense.[28]
The case of Herridge concerned the Parkerville fires of January 2014.[29] The fires were ignited when a dilapidated jarrah pole supporting electrical cables, embedded in land owned by the third defendant, ignited surrounding vegetation. Both negligence and nuisance were pleaded.
Le Miere J held that the focus of nuisance is on the interference the plaintiff has suffered, however, the quality of the defendant's conduct is not to be discounted.[30] Le Miere J found that claims in nuisance may not involve fault, but the claims against the second and third defendant in this case did.[31] This was so because the plaintiff's case against the second and third defendants rested upon their respective failure to take reasonable care. As a corollary, it was held that reasonable foreseeability remains a factor to be considered in a claim of nuisance. This case is currently on appeal.
The plaintiffs claim in nuisance mirrors that of Herridge in that it relies on a failure to take reasonable care.
In Warragamba Winery Pty Ltd v State of NSW, 'Warragamba', Walmsley AJ held that a claim in nuisance must fail where the plaintiff cannot establish negligence. Counsel for the plaintiff conceded this point.[32] Relying on a passage from Fleming's Law of Torts, Walmsley AJ made the following observation:
'I have noted that the plaintiffs have sued in nuisance in the alternative to their other counts. In Fleming at 403 the authors note that many cases concerning fire damage have included claims for nuisance but that the common response of courts in such cases has been that such a claim cannot succeed without proof of negligence, the underlying logic appearing to be that proof of negligence is an essential precondition in circumstances in which physical damage to property is at issue.'[33]
Fleming cites the High Court cases of Wagon Mound No 2 and Goldman v Hargrave.[34] Le Miere J also cited the above passage from Fleming with approval in Herridge.[35]
It necessarily follows that if the plaintiff's claim in negligence fails, so too must their claim in negligence."
[23] Ibid at 554.
[24] Le Miere J in Herridge at 539, citing McLure P in Southern Properties [2012] WASCA 79.
[25] At 119.
[26] McLure P at 85.
[27] McLure P at 88.
[28] McLure P at 84-88.
[29] [No 4] [2019] WASC 94.
[30] Herridge per Le Miere J at 544.
[31] At 544.
[32] [2012] NSWSC at 673-674.
[33] At 673.
[34] Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 and [1963] 1 AC 645.
[35] At 531, citing Sappideen C, Vines P, Fleming's The Law of Torts (10th ed, 2011) [16.30] at 403.
I do not accept these submissions of the first defendant. They rely overly much on "cherry picked" judicial observations and unrealistic attempts to distinguish cases that are clearly against her. Moreover, in attempting to "shoehorn" the requirements of the tort of negligence into that of nuisance, they fly in the face of High Court and intermediate appeal court and first instance decisions in this country which, with the exception of Herridge (above), (which at the time of handing down these reasons, remains reserved on appeal on the point in question), are quite clearly to the contrary. I much prefer the more rigorous and principled analysis of the plaintiffs, as I have already indicated. In particular, I am, with respect, wholly in agreement with McLure P in Southern Properties (above), as to the state of the relevant law.
Answer to Key Issues 6(a) and (c)
It follows that I accept the answer to key issues (6)(a) and (c) posited by the plaintiffs, namely, that only reasonable foreseeability of harm is an element of private nuisance. That is, it is the creation of a nuisance, or a failure to abate it, in circumstances where harm of the general kind suffered by the plaintiff ought reasonably to have been foreseen by the defendant as a potential consequence of his or her acts or omissions, that constitutes the requisite "fault" element for liability in private nuisance. A failure to take reasonable care is not an element of the action in private nuisance.
Relevance of reasonable use of land
On this issue, the first defendant submits that Basten JA made the following observation in Woodhouse (above) at [47] while addressing whether the escape of fire from a controlled burn constitutes a nuisance:
"… it is not the case that private nuisance is established as a result of any harm resulting from an emanation from a person's land. The use of the land must be out of the ordinary, unreasonable or otherwise inappropriate".
Ms Barrett says that that having a small campfire on a cold night during a period which was not subject to any fire bans to enhance the camping experience of the second defendant's young son was not an unreasonable use of her land.
On that point the plaintiffs say, and I accept, that lighting a fire in open air, in a high-bushfire risk area, in the changeable weather conditions of south-east Tasmania in late December is an inherently dangerous activity. So much is reflected in the extensive regulations around such activities, including the declarations of "fire permit" periods pursuant to the FSA. Moreover, they say, the inherent danger of lighting a fire within 3m of a tree, stump, log or peat is stipulated by the legislature, in s 69 of that Act.
As to this issue generally, the plaintiffs submit, as noted above, private nuisance is not a tort of strict liability. This is so for two reasons that first, because an element of fault is required, in the way described above, and second, considerations of reasonableness, in a "physical sense", as opposed to reasonable foreseeability does come into play. The plaintiffs say that while elements of "physical reasonableness" are sometimes referred to as "reasonable user" or "reasonable use" of the defendant's interests in land, that shorthand might be convenient to describe a relevant consideration but the title is apt to mislead. They say that a proper consideration of the logic of the tort of nuisance shows that the notion of "reasonableness" is not one that looks at whether the defendant's acts or omissions on her land were reasonable from the perspective of a landowner considered within its own private sphere. Rather it is one that looks at whether the interference as experienced by the plaintiffs was reasonable having regard to the history, customs or characteristics of the local area.
In other words, the plaintiffs say that the question is not whether it was reasonable for the defendant to light or permit a small campfire. It is whether the plaintiff group is expected by the law to suffer without redress the consequences of a bushfire ignited by the campfire and spreading onto their own lands. They say that two cases exemplify that proposition:
· in Marsh v Baxter [2012] WASCA 79, 42 WAR 387 at [119], [247] interference from "spray-drift" (of crop chemicals) was not unreasonable because it resulted from normal and longstanding local farming practices; and
· in Woodhouse (above) interference by fire was not unreasonable, not merely because there was no negligence in the fuel-reduction work that had been undertaken but also because non-negligent fuel-reduction burn-offs were normal practice and responsible land management in the local area.
The plaintiffs say that it would make little sense for the enquiry as to "reasonable use" to focus on the defendant's conduct within the private space of her own property, in a vacuum. A person can do what they like in their own home. They submit that the only reason for the enquiry in a nuisance context, is the nexus between "the on-property act or omission and the off-property effect." That is, the question must be whether it is "reasonable use" of a given property to so use it as to have an impact on the other properties.
Thus the plaintiffs say in conclusion, the answer to key issue 6(b), is that it is not an answer to a claim in private nuisance that the defendant's acts or omissions might appear to have been a reasonable exercise of the defendant's prerogatives on her own land, as if the impacts were confined to the defendant's own land. They say that the inaptness of an enquiry as to whether the nuisance resulted from a "reasonable use" of the first defendant's interests in her land is demonstrated by the additional consideration that a private nuisance does not depend on the defendant even having an interest in land. A licensee upon one parcel of land can be liable in nuisance for the effects suffered on other parcels of land (Fennell v Robson Excavations [1977] NSWLR 486 at 491B-492A, 496A, 498E-499G).
Finally the plaintiffs submit in conclusion on this key issue that applying their conclusion to the present case, there is no warrant for concluding that they should here should be required to tolerate the consequences of a bushfire resulting from a campfire set for private recreational purposes. The campfire is not a "reasonable use" in that sense.
Answer to Question 6(b)
I accept the plaintiffs' submissions on this key issue and the answer to the question posed by it that, for the reasons articulated above the campfire lit in an old tree stump in the circumstances of this case was, for the purposes of the law of private nuisance, an unreasonable use by the first defendant of her land.
Key Issue 6(d) – did the fire cause unreasonable interference to the property?
The plaintiffs submit that the interference suffered by them, namely interference by bushfire – is of a type which the law has historically been most concerned to sanction, rather than to excuse. The traditional rules of ignis suus and perhaps Rylands v Fletcher, albeit both now absorbed into the general law of negligence, "were the classic manifestation of that concern". They say that there is absolutely nothing in the circumstances of the present case to support a conclusion that the plaintiffs are to be expected to tolerate the "interference" they suffered as a result of the defendant's campfire. Quite apart from the role of s 69 of the FSA in demonstrating, for the purposes of negligence, the lack of reasonableness in the defendant's conduct in setting the fire in the stump, the statute likewise demonstrates for the purposes of the nuisance analysis that campfires in tree stumps and their potential consequences for the wider public, are not something that the wider public should be presumed to accept.
The first defendant's only submission as to this key issue is that it is "largely non-controversial".
Answer to Key Issue 6(d)
It follows that the answer to the question posed by this key issue is "yes" on all counts.
Key Issue 6(e) – whether private nuisance is apportionable under the CLA
On this key issue the first defendant notes that McLure P noted in Southern Properties (above) at [115] that the court must proceed on the basis that nuisance is a separate cause of action, and that s 5AI of the Western Australian equivalent of s 43A of the CLA would only apply if the appellants had to prove negligence. She noted at [126] that:
"Parts 1A and 1C of the CLA only apply where there is a claim for damages for harm caused by the fault of a person. The causal link between damage and fault suggests fault must be an element of the cause of action. If so, it is not sufficient that fault may (not must) be relevant in the assessment of whether interference is unreasonable, or that proven absence of fault is a material element of a defence to the nuisance claim."
Ms Barrett submits that her Honour's observation suggests that fault is not an element of nuisance and the CLA is therefore not applicable. However, Ms Barrett submits that Southern Properties is distinguishable on the facts and that proportionate liability was not directly raised in the case. She says that discussion was based on Part 1A of the Western Australian legislation which I observe is the equivalent of Part 9A of the Tasmanian CLA, but employs the word "fault" in s 5A in applying the Part, as opposed to s 43A(1)(a) of the CLA which applies Part 9A to claims for economic loss or damage to property in an action for damages arising from a failure to take "reasonable care".
Ms Barrett notes that Le Miere J in Herridge made the following observation in relation to Southern Properties and the analysis of the CLA in regard to apportionment in nuisance at [538]:
"… counsel have not disclosed any case which has decided whether or not claims in nuisance are or may be apportionable. The plaintiffs referred to Southern Properties. The issue of whether claims in negligence are or may be apportionable claims for the purposes of s 5AI of the Civil Liability Act did not arise in Southern Properties. The issue which was referred to in the judgments was whether s 5B, s 5V and s 5W applied to claims in nuisance."
Ms Barrett says that Le Miere J reasoned at [544] that the claim in nuisance in Herridge involved fault as the plaintiff's case rested upon the defendant's failure to take reasonable care. On that basis, the claims in nuisance were apportionable and were determined on the same basis as the apportionment of damages in the negligence claim. She says that that the pleadings of the plaintiffs are analogous to Herridge in that regard and that therefore, s 43A of the CLA is applicable. It would be illogical for the proportionate provisions of the CLA to apply for one tort that contemplates reasonable care and not another which also contemplates reasonable care.
As I have already held, in my view the tort of private nuisance does not involve an element of failure to take reasonable care. It follows that I do not accept the first defendant's analysis on this issue. I am conscious that the Western Australian Court of Appeal is due to hand down its decision in Herridge later this day, however, given the difference between the language of s 5A of the Western Australian Act and s 43A(1)(a) of the CLA, and the potential for appeal in that case and in this, I have not postponed the date for publishing these reasons.
On this key issue, the plaintiffs note that the term "apportionable claim" is defined in s 43A of the CLA, relevantly, as "a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care" and that it is clear that the word "claim" in the body of that definition "equates to the inclusion of the relevant head of loss in the particulars of damage, while 'action' is used in the present sense of 'cause of action'." They say that the qualifying phrase "arising … care" conditions or qualifies the cause of action, not the particular claimed loss. That is, they say, it is the cause of action that must arise from the failure to take reasonable care, not the particular loss.
I agree that construction is to be preferred, particularly given the words in parentheses after the words "in and action for damages", namely, "(whether in contract, tort or otherwise)".
The plaintiffs submit that the requirement that a failure to take reasonable care be a technical element of the cause of action, and not merely a finding that might be made as an incidental matter or in respect of other pleaded causes of action, was recently "determinatively resolved" by the Victorian Court of Appeal in the Lacrosse Building Fire litigation Tanah Merah Vic Pty Ltd v Owners' Corporation No 1 of PS631436T [2021] VSCA 72. They observe that in a very detailed consideration of the controversy appearing from prior cases, the Court of Appeal at [116], endorsed the conclusion of MacFarlane JA in an earlier NSW Court of Appeal decision Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58 at [23] that:
"… the application of [the apportionment regime] turns not on the facts that happen to be found but on the essential character of the plaintiff's successful cause of action. Subject to cases that are conducted without regard to the pleadings, if negligence is an essential element of that cause of action, it will have been pleaded in the Statement of Claim. If it is not, it will not have been pleaded. It would be curious indeed if, to attract [the apportionment regime], the defendant pleaded and proved his or her own negligence when that was not alleged by the plaintiff. The text of [the NSW equivalent of s 43(1)] does not, in my view, contemplate that occurring. The natural meaning of the words used indicates that a failure to take reasonable care must be part of, and therefore an element of, the plaintiff's successful cause of action." [Footnotes omitted.] [Emphasis added.]
I note that Richard Douglas QC observed in an article entitled Please Apportion Me!- the VSCA clarifies candidature for an apportionable claim published in the journal Australian Civil Liability, June 2021, that Macfarlan JA had repeated his dictum in Perpetual Trustee Company, with the approval of two other members of the NSW Court of Appeal, in Rahme v Benjamin & Khoury Pty Ltd [2019] NSWCA 211, 100 NSWLR 550 at [132]–[137].
The plaintiffs submit that intermediate appellate courts should not depart from an interpretation placed on national legislation, in this case the apportionment regime, by other intermediate appellate courts unless convinced the interpretation is plainly wrong (Allianz Australia Insurance Ltd v Mercer [2014] TASFC 3, 309 ALR 154, per Porter J at [155].) They say that Tanah Merah is plainly correct, and that for the reasons given in that case at [118], "the view that the nature of the claim itself is irrelevant to the question whether the claim is one 'arising from a failure to take reasonable care' has a series of anomalous consequences."
Further, the plaintiffs submit, the result in Tanah Merah was also suggested by and is consistent with analogous High Court authority. The position concerning the candidate circumstance of a claim under federal (or, by parity of reasoning, State or Territory Fair Trading) legislation for contravention of s 18 of the Australian Consumer Law was resolved by the High Court in Selig v Wealthsure Pty Ltd [2015] HCA 18, 255 CLR 661 at [37]. That case held that a claim under one statutory provision having as one element a requirement of misleading conduct (Corporations Act s 1041H) was apportionable, but claims under other provisions were not, even though the causes of action under the other provisions also required an element of misleading conduct.
I accept the plaintiffs' submissions on this issue, in particular because, as Tanah Merah noted, the result ensures consistency with other provisions in the apportionment regime, and in particular (in Tasmanian terms) s 43B. That is, if a given head of loss (claim) is recoverable both upon a cause of action that arises from a failure to take reasonable care, and upon another cause of action that does not require such a failure, then the defendant remains liable under the second cause of action for the whole of the loss on the traditional solidary basis. The practical consequence is that the liability is not apportionable.
I agree, with respect, that their Honours' reasoning in Tanah Merah is compelling and I would not presume to depart from it.
And I agree with the plaintiffs' submission that as the fault element in private nuisance is only foreseeability and not a failure to take reasonable care, it follows that the cause of action in private nuisance does not "arise from" a failure to take reasonable care. There might in fact have been a failure to take reasonable care, but since the cause of action does not require it, the s 43A definition is not satisfied.
This result is not inconsistent with Woodhouse (above) where the plaintiff actually pleaded his nuisance claim as arising from the negligence of the defendant. Given that pleading, it understandably followed that the particular nuisance claim in that case by definition "arose" from the defendant's failure to take reasonable care. At the very least I agree with the plaintiffs' submission that such anomalous pleading in Woodhouse means that the case is distinguishable from the present case, on this issue of apportionability of liability in private nuisance. In the present case, because the nuisance is pleaded without incorporating any element of a want of reasonable care, and because nuisance does not otherwise depend on a want of reasonable care, it does not meet the definition of an "apportionable claim" and it is not apportionable.
Answer to Key Issue 6(e)
Accordingly, liability in private nuisance in the present case is not apportionable under the CLA.
Key Issue 6(f) – do the provisions of the Wrongs Act apply?
The first defendant submits that if the plaintiff succeeds in nuisance and it is found that a claim in nuisance is not an apportionable claim under the CLA, then the first defendant's notice of contribution brings the Wrongs Act into play. And she says there is no difference in principle between apportionment under the CLA and contribution under the Wrongs Act.
The plaintiffs submit that since the apportionment regime does not operate in respect of their cause of action in private nuisance, they are prima facie entitled to recover the totality of their losses from Ms Barrett. However, they acknowledge that the non-application of the "apportionment" regime in the CLA also means that the "contribution" provisions in the Wrongs Act are available to Ms Barrett in respect of the nuisance claims.
I am therefore required to determine whether and to what extent it is "just and equitable" that Mr Robinson be held liable for the plaintiffs' losses, in order to determine the proportion to which he is required to contribute toward Ms Barrett's liability.
As to the question of the actual proportion, the plaintiffs agree with the first defendant's submission that any allocation of liability by way of contribution should be in the same percentages as would apply if the claims were apportionable.
I too agree and would allocate liability as to 20% to Mr Robinson for the reasons I have earlier given with respect to the application of the CLA to the plaintiffs' claim in negligence.
Answer to Key Issue 6(f)
The provisions of the Wrongs Act apply to the contribution proceedings in the plaintiffs' claim in these proceedings for damages for private nuisance.
Key Issue 7 – quantum
The question posed by this key issue is "what is the quantum of loss suffered by the test-case plaintiff (Sonia Daly) and how is the figure derived?"
The plaintiffs and Ms Barrett have agreed the quantum of Ms Daly's losses as follows. It is agreed that on 4 January 2013, Sonia Daly, plaintiff number 19 in proceeding 3393 of 2018, suffered loss and damage when a property owned by her at 12 Fulham Road, Dunalley was impacted by a bushfire.
Answer to Key Issue 7
The loss and damage is particularised as follows:
Item Head of loss Agreed loss 1 Contents $63,532.22 2 Damage or loss of infrastructure $219,721.03 3 Cost of cleaning property $1,025.75 4 Loss of building materials $10,778.00 5 Alternative accommodation $1,200.00 6 Cost of clean drinking water $360 7 Loss adjusting fees $253 8 Loss of garden equipment and trees $430 9 Loss of boat, trailer and pumps $2,700 TOTAL $300,000
Disposition
For the reasons I have given, and from the answers I have provided to each of the questions posed by the seven key issues set out in the parties' Key Issues Statement, it follows that the first defendant is liable to the test case plaintiff for damages for negligence and for private nuisance. It also follows in principle that she should be liable to each of the other plaintiffs in negligence and in private nuisance, subject to proof of damage.
It will also be seen that I have found that the plaintiffs' claims in negligence are apportionable claims for the purposes of the CLA, notwithstanding the existence of a non-delegable duty on the part of the first defendant. I have limited the liability for the loss and damage claimed by the plaintiffs as to 80% in the case of Ms Barrett and as to 20% in the case of Mr Robinson.
Finally, I have found that the CLA does not apply to a claim in private nuisance, as the only relevant fault feature in private nuisance is reasonable foreseeability, and failure to take reasonable care is not an element in the tort. The Wrongs Act however applies to the contribution proceedings between the first defendant and Mr Robinson, and I have found contribution between them in the same proportions as the apportionment I have made under the CLA.
I will hear counsel whenever convenient as to the terms of the orders to be made in the case of the test case plaintiff. However, as requested of me, my findings and conclusions have been expressed so as to produce a binding ruling that can then be applied arithmetically to the assessed losses of the remaining plaintiffs, when their individual claims arise for assessment, either in the course of post-trial settlement discussions, or in subsequent hearings as to their individual claims, should that become necessary.
4
48
1