Shire of Brookton v Water Corporation

[2003] WASCA 240

SHIRE OF BROOKTON -v- WATER CORPORATION & ORS [2003] WASCA 240

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 240
Court:	THE FULL COURT (WA)
Case No:	FUL:111/2002	Heard:	28 JULY 2003
Coram:	ANDERSON J STEYTLER J MCLURE J	Delivered:	10/10/03
No of pages:	28	Judgment Part:	1 of 1
Result:	Appeal dismissed Notice of contention dismissed
Category:	B
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Parties:	SHIRE OF BROOKTON WATER CORPORATION WESTERN POWER CORPORATION ANNE ASTILL IAN DOUGLAS ASTILL CYRIL BRUCE BRECHIN WINIFRED EDITH BRECHIN BARRY DAVID CROCKETT NORMA VIVIENNE CROCKETT MALCOLM LESLIE CUNNINGHAM BRONWYN MAREE CUNNINGHAM ALLAN CLAYTON CUNNINGHAM JOANNE ELIZABETH CUNNINGHAM ALEX HAIG HAMILTON CUNNINGHAM MALCOLM LESLIE CUNNINGHAM AS TRUSTEE FOR THE MALBRO FAMILY TRUST BRONWYN MAREE CUNNINGHAM AS TRUSTEE FOR THE MALBRO FAMILY TRUST ROBERT DOUGLAS EVA JAMES HENRY EVA TALMA THERESE EVA JOHN FREDERIC MARTIN GILLETT MARGARET ANNE GILLETT KIRRALEE FARMS PTY LTD AS TRUSTEE FOR THE KE LANGE FAMILY TRUST KENNETH THOMAS HALL CORAL FLORENCE HALL HILLROY FARMS PTY LTD AMBIKA PTY LTD AS TRUSTEE FOR THE TJ HART FAMILY TRUST STEVEN CHRISTOPHER KOLB LINDSAY KELVIN LANGE KELSIE GRAZING CO PTY LTD KELVIN ERNEST LANGE NANTHANA NOMINEES PTY LTD AS TRUSTEE FOR THE LEAKE FAMILY TRUST STEPHEN BARTLETT LEAKE ROBERT BRUCE LEAKE VERONICA LINDIANTINI LEAKE JOHN EDMUND MATTHEWS DAPHNE ELEANOR MATTHEWS MATTHEWS BROOKTON (WA) PTY LTD LYNTON JAMES MESSENGER NEVILLE JAMES MESSENGER JAMES ARTHUR MESSENGER JEAN CLARIBEL MESSENGER ALAN ARTHUR MESSENGER THOMAS WILLIAM MITCHELL DIN-MORE PTY LTD AS TRUSTEE FOR THE POWELL FAMILY TRUST WENDY ELIZABETH POWELL FRANK AUSTIN POWELL JAMES AUSTIN POWELL ANTHONY RICHARD ROBINSON AS TRUSTEE FOR THE MEDERBERRIN FARM TRUST ANTHONY RICHARD ROBINSON ROBERTA BEATRICE ROBINSON GRAEME LEIGH TOWNEND LINDA TOWNEND GREGORY JOHN WARD ROSALYN JOY WARD BENSFIELD NOMINEES PTY LTD AS TRUSTEE FOR THE G & A WATTS FAMILY TRUST GRAEME ALEX WATTS ROSEMARY ANNE WATTS HAMP PTY LTD AS TRUSTEE FOR THE HG & AM WILLIAMS FAMILY TRUST HARRY GEORGE WILLIAMS ALEXANDRA MARY WILLIAMS DOUGLAS GRAHAM WINDSOR JENNIFER KAY WINDSOR
Catchwords:	Negligence Spread of fire resulting from smouldering grain on waste disposal site Whether error of law or fact in finding of negligence Duty and standard of care Whether a finding of causation Test of causation Construction Environmental Protection Act, Pt V Whether statutory purpose the prevention of damage to property by fire
Legislation:	Environmental Protection Act 1986 (WA), s 3, s 56, s 62
Case References:	Bennett v Minister of Community Welfare (1992) 176 CLR 408 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Chappel v Hart (1998) 195 CLR 232 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2002] 3 WLR 89 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337 McLean v Tedman (1984) 155 CLR 306 Naxakis v Western General Hospital (1999) 197 CLR 269 Quigley v Commonwealth of Australia (1981) 35 ALR 537 Rosenberg v Percival (2001) 205 CLR 434 Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1989) Aust Torts Rep 80-227 Chapman v Hearse (1961) 106 CLR 112 Cohen v City of Perth [2000] WASC 306 Hotson v East Berkshire Area Health Authority [1987] AC 750 Hughes v Lord Advocate [1963] AC 837 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 MacPherson v Proprietors of Strata Plan 108757 [2003] NSWCA 96 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 O'Connor v SP Bray Ltd (1937) 56 CLR 464 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SHIRE OF BROOKTON -v- WATER CORPORATION & ORS [2003] WASCA 240 CORAM : ANDERSON J

STEYTLER J
MCLURE J

HEARD : 28 JULY 2003 DELIVERED : 10 OCTOBER 2003 FILE NO/S : FUL 111 of 2002 BETWEEN : SHIRE OF BROOKTON

Appellant

AND

WATER CORPORATION
WESTERN POWER CORPORATION
ANNE ASTILL
IAN DOUGLAS ASTILL
CYRIL BRUCE BRECHIN
WINIFRED EDITH BRECHIN
BARRY DAVID CROCKETT
NORMA VIVIENNE CROCKETT
MALCOLM LESLIE CUNNINGHAM
BRONWYN MAREE CUNNINGHAM
ALLAN CLAYTON CUNNINGHAM
JOANNE ELIZABETH CUNNINGHAM
ALEX HAIG HAMILTON CUNNINGHAM
MALCOLM LESLIE CUNNINGHAM AS TRUSTEE FOR THE MALBRO FAMILY TRUST
BRONWYN MAREE CUNNINGHAM AS TRUSTEE FOR THE MALBRO FAMILY TRUST
ROBERT DOUGLAS EVA
JAMES HENRY EVA

(Page 2)

TALMA THERESE EVA
JOHN FREDERIC MARTIN GILLETT
MARGARET ANNE GILLETT
KIRRALEE FARMS PTY LTD AS TRUSTEE FOR THE KE LANGE FAMILY TRUST
KENNETH THOMAS HALL
CORAL FLORENCE HALL
HILLROY FARMS PTY LTD
AMBIKA PTY LTD AS TRUSTEE FOR THE TJ HART FAMILY TRUST
STEVEN CHRISTOPHER KOLB
LINDSAY KELVIN LANGE
KELSIE GRAZING CO PTY LTD
KELVIN ERNEST LANGE
NANTHANA NOMINEES PTY LTD AS TRUSTEE FOR THE LEAKE FAMILY TRUST
STEPHEN BARTLETT LEAKE
ROBERT BRUCE LEAKE
VERONICA LINDIANTINI LEAKE
JOHN EDMUND MATTHEWS
DAPHNE ELEANOR MATTHEWS
MATTHEWS BROOKTON (WA) PTY LTD
LYNTON JAMES MESSENGER
NEVILLE JAMES MESSENGER
JAMES ARTHUR MESSENGER
JEAN CLARIBEL MESSENGER
ALAN ARTHUR MESSENGER
THOMAS WILLIAM MITCHELL
DIN-MORE PTY LTD AS TRUSTEE FOR THE POWELL FAMILY TRUST
WENDY ELIZABETH POWELL
FRANK AUSTIN POWELL
JAMES AUSTIN POWELL
ANTHONY RICHARD ROBINSON AS TRUSTEE FOR THE MEDERBERRIN FARM TRUST
ANTHONY RICHARD ROBINSON
ROBERTA BEATRICE ROBINSON
GRAEME LEIGH TOWNEND
LINDA TOWNEND
GREGORY JOHN WARD
ROSALYN JOY WARD

(Page 3)

BENSFIELD NOMINEES PTY LTD AS TRUSTEE FOR THE G & A WATTS FAMILY TRUST
GRAEME ALEX WATTS
ROSEMARY ANNE WATTS
HAMP PTY LTD AS TRUSTEE FOR THE HG & AM WILLIAMS FAMILY TRUST
HARRY GEORGE WILLIAMS
ALEXANDRA MARY WILLIAMS
DOUGLAS GRAHAM WINDSOR
JENNIFER KAY WINDSOR
Respondents

Catchwords:

Negligence - Spread of fire resulting from smouldering grain on waste disposal site - Whether error of law or fact in finding of negligence - Duty and standard of care - Whether a finding of causation - Test of causation

Construction - Environmental Protection Act, Pt V - Whether statutory purpose the prevention of damage to property by fire

Legislation:

Environmental Protection Act 1986 (WA), s 3, s 56, s 62

Result:

Appeal dismissed

Notice of contention dismissed

(Page 4)

Category: B

Representation:

Counsel:

Appellant : Mr C L Zelestis QC & Mr G R Hancy
Respondents : Mr K J Martin QC & Mr P D Quinlan

Solicitors:

Appellant : Minter Ellison
Respondents : Talbot & Olivier

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

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Chappel v Hart (1998) 195 CLR 232
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2002] 3 WLR 89
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337
McLean v Tedman (1984) 155 CLR 306
Naxakis v Western General Hospital (1999) 197 CLR 269
Quigley v Commonwealth of Australia (1981) 35 ALR 537
Rosenberg v Percival (2001) 205 CLR 434
Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1989) Aust Torts Rep

80-227

Chapman v Hearse (1961) 106 CLR 112
Cohen v City of Perth [2000] WASC 306


(Page 5)

Hotson v East Berkshire Area Health Authority [1987] AC 750
Hughes v Lord Advocate [1963] AC 837
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
MacPherson v Proprietors of Strata Plan 108757 [2003] NSWCA 96
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
O'Connor v SP Bray Ltd (1937) 56 CLR 464
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332


(Page 6)

1 ANDERSON J: I agree with the judgment of McLure J that this appeal must be dismissed. There is nothing I wish to add to her reasons for coming to that conclusion.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of McLure J. I agree with them and with her Honour's conclusion that both the appeal and the respondent's notice of contention should be dismissed. There is nothing I wish to add.

MCLURE J:

Introduction

3 On 15 December 1997 a fire started at the waste disposal site occupied and operated by the appellant (defendant), the Shire of Brookton ("Shire"). A spark, ember or firebrand from the fire at the waste disposal site (referred to at trial and hereafter as the "tip") was carried through the air some 500 metres or so into a paddock owned by Mr and Mrs Hall, two of the respondents (plaintiffs) in the proceedings. Hall's paddock had been sown with clover which, by mid-December had died off and was crisp and dry. The fire became established in Hall's paddock and quickly got out of control and moved to the south and east. At issue below was the question of the Shire's liability for negligence and breach of statutory duty. Damages were to be tried separately. However, it was conceded by the Shire that each of the respondents had suffered relevant damage. Master Sanderson presided at the trial. He concluded that the Shire had been negligent and dismissed the claim for breach of statutory duty.

4 At the hearing of the appeal, the Shire abandoned a number of the grounds of appeal in its Notice and contended only that:

(a) there were errors of law and fact in the Master's finding of negligence by failing to have a standing instruction to employees to promptly extinguish fires;

(b) there was no finding by the Master that such an instruction would have averted the fire in question or its spread.

5 The respondents take issue with the Shire's description of the Master's finding as to the nature and extent of the breach by the Shire of its duty of care. The respondents also claim by way of notice of contention that the Master erred in dismissing their claim for breach of statutory duty.
(Page 7)

Undisputed Findings

6 The Master made many findings that are not challenged in the appeal. The tip is located on a reserve of just under 30 acres. The reserve is rectangular in shape with the long sides of the rectangle running north-south. At the time of the fire, the actual tipping area was located just to the west of the centre of the reserve. The "tip pad" was an area of rubbish that had been covered with gravel and compacted to provide a solid surface over which vehicles could travel. To actually dispose of refuse, it was necessary to travel north along the tip pad for some distance to arrive at the active face of the tip. The active face was the area where rubbish was deposited but had not yet been covered.

7 On either side of the tip pad running roughly north and south were mounds of earth referred to at the trial as "bunds". The bunds defined the edge of the tip pad. Beyond the western bund, the land fell away down to a wooded area covered with wandoo trees. Some distance further to the west there was a firebreak and then the bush continued to the western boundary of the reserve. To the south of the tip pad there was a narrow area of bush and a firebreak running roughly east to west. Beyond this firebreak there was a further area of bush of about 200 metres. Beyond that bush to the south was Mr and Mrs Hall's farm.

8 The weather on 15 December 1997 was hot and dry and a strong wind was blowing from the north. A harvest ban had been declared. Around mid-morning Mr K Watts, an employee of the Shire, drove a front-end loader to the tip site to undertake certain work. Sometime between 11.00 am and 11.15 am he noticed a fire in rubbish which had been dumped on the tip site. He deposited two bucket loads of gravel onto this fire and it appeared to be extinguished. At the same time he noticed that grain was smouldering in an area that he had not covered with gravel. He took no action to extinguish the smouldering grain. He said he did not cover the smouldering grain "as I thought it was safe". At the time Mr Watts left the tip, there was no fire burning in the sense that no flames were visible. What he saw was smouldering grain giving off a wisp of smoke. Mr Watts drove the front end loader back to the Brookton town site where he undertook other tasks until he arrived back at the Shire depot around 12.00 pm to eat his lunch.

9 Sometime after Mr Watts' departure from the tip site, the smouldering grain set fire to combustible material on the western bund of the tip pad. Fanned by the strong winds, the fire spread to the south and

(Page 8)

to the west towards the firebreak on the western side of the tip reserve. It leapt this firebreak and commenced to burn to the south and west of the reserve, all the while gathering intensity.

10 Between 11.35 am and 11.50 am on 15 December 1997 Mr Butcher was travelling to the Brookton township along the Corberding Road. At a distance of some 4 to 5 kilometres from the tip site he observed what he presumed to be smoke rising from the area of bush where the tip was located. He went directly to the Shire office and reported his observation to the receptionist, Ms Suzanne Rayner. In Mr Butcher's presence, Ms Rayner contacted the Shire's Works Supervisor, Mr Forward, at the Shire depot concerning Mr Butcher's report. Having satisfied himself that his concerns about any fire at the tip were being addressed, Mr Butcher went about his business.

11 Mr Watts was at the Shire depot and says he heard the conversation between Mr Forward and Ms Rayner. Mr Forward asked Mr Watts if there was a fire at the tip. Mr Watts responded that there was no fire although he mentioned to Mr Forward the smouldering grain. Mr Watts heard Mr Forward advise Ms Rayner that he would investigate the report straight away. However, Mr Forward advised Mr Watts to finish his lunch prior to attending the tip to check the report of fire.

12 Before Messrs Watts and Forward had left the depot for the tip, Mr Butcher called in at the depot to enquire about the situation. It was not disputed that between 35 and 50 minutes had elapsed between the first report by Mr Butcher of smoke at the tip and Mr Forward leaving the depot to investigate the report. The Master accepted Mr Butcher's evidence that Mr Forward told him that there was wheat smouldering at the tip and that he (Forward) would send a couple of men to the tip with a fire unit to investigate. After Mr Butcher left the depot, Messrs Forward and Watts drove in a utility from Brookton towards the tip. They observed smoke coming from the tip and radioed to Mr Bowron, another Shire employee, to bring the Shire's fire truck to the tip. When Messrs Forward and Watts arrived at the tip pad area, they observed that the fire had burnt out the western side of the western bund, had crossed the western firebreak and was burning on a front 60 metres long and 20 metres wide. They observed that the fire was 3 to 4 metres high and was burning fiercely. Mr Bowron arrived with the Shire fire truck. The fire was brought under control after 15 or 20 minutes.

13 Just as the fire was brought under control at the tip site, smoke was seen rising from Hall's paddock. The fire had not, at this stage, burnt

(Page 9)

through the bush to the south of the tip reserve. Rather, a spark ember or a firebrand had been carried through the air from the fire at the tip site, some 500 metres or so into Hall's paddock. The fire became established in Hall's paddock and quickly got out of control. It then moved to the land further to the south and east and consumed a large part of the district.

14 The respondents called three witnesses who gave expert evidence concerning the origins and behaviour of fires generally and bushfires in particular. The Shire did not adduce expert evidence to contradict that given on behalf of the respondents. On the basis of the uncontradicted expert evidence the Master found that the point of origin of the fire was the smouldering grain located on the western side of the tip pad and that the fire in Hall's paddock was caused by spotting from the fire on the western side of the tip site.

15 The Master concluded that all of the witnesses gave their evidence in an honest and forthright manner and that there was no relevant conflict of evidence that had to be resolved.

Licence under the Environmental Protection Act 1986 (WA)

16 The Shire was the holder of a licence under the Environmental Protection Act 1986 (WA) in relation to the tip. The Shire's licence issued in June 1997 and contained, inter alia, "General Conditions" and "Air Pollution Control Conditions". General Condition G12(a) is relevant and provides:

"COVER MATERIAL

G12(a) The licensee shall ensure putrescible waste is covered with a minimum of 230mm of cover material, typically soil, at the completion of the tipping of the regular municipal waste pickup."

17 The Air Pollution Control Conditions state:

"BURNING OF WASTE

A2(a) The licensee shall not burn putrescible waste.

A2(b) The licensee shall ensure that when greenwaste is burnt on site:


i. the greenwaste is dry and seasoned for two months before burning;

(Page 10)

ii. the greenwaste is burnt in a dedicated area at least 25 metres from any boundary or putrescible fill area;

iii. an adequate water supply and distribution system is available during control burns;

iv. burning is performed in such a manner which minimises the generation of smoke;

v. the waste is burnt in windrows or trenches;

vi. the volume of waste burnt is restricted to an amount which can be completely burnt during daylight hours;

vii. the fire is attended by the licensee or his nominee until it is extinguished."

18 The term "putrescible waste" is defined as waste that will decompose readily under microbial attack and includes green waste and wastes arising from residential, commercial and industrial sources.

19 Prior to 1996, control of rural tips had been dealt with under the Health Act. Subsequently, responsibility was transferred to the Department of Environmental Protection ("DEP") and the licensing requirements under the Environmental Protection Act became applicable to rural tips from 1 October 1996. A Code of Practice dated 1 November 1996 was issued although it is unclear whether the Code of Practice ever progressed beyond the status of a discussion paper. Section 4.7 deals with fire control and provides:

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

(Page 11)

It is not suggested that the Shire was unaware of the Code of Practice. The DEP and the Shire communicated about the terms and condition to be imposed under the proposed licence to be granted to the Shire.

20 On 18 September 1997 a DEP representative, Ms Archdeacon, undertook an inspection of the tip. On 25 September 1997 she wrote to the Shire advising of her inspection and what she had observed. She described the tip as being poorly managed and identified some specific aspects involving, she said, failure to meet the Code of Practice and the Conditions in the Shire's licence. She noted, inter alia, that there were no stockpiles of cover material and that on her visit a face of putrescible waste was burning (allegedly) in contravention of Condition A2(a). The Shire responded, inter alia, that a large quantity of cover material was stored on site and it did not burn any putrescible waste but "cannot control pyromaniacs at the site".

Duty of Care and Foreseeability

21 The Master's formulation of the Shire's duty of care to the respondents was not directly in issue in the appeal. However, it is indirectly relevant to the identification of the Master's findings concerning the nature and extent of the Shire's breach of duty.

22 Although the Shire in its pleading denied it owed the respondents a duty of care, that proposition was not pressed in closing at the trial. In the appeal the parties accepted that the Shire owed a duty of care to the respondents although they differed as to the correct formulation of the duty.

23 The respondents pleading of the Shire's duty of care was broad ranging and specific. It was to the effect that the Shire owed the respondents a duty to take reasonable care to, inter alia:

- control any fires on the tip site;

- prevent fires escaping from the tip site;

- prevent spontaneous combustion of putrescible waste, including grain, at the tip site;

- instruct its employees not to light fires or to permit fires to continue burning at the tip site unless it was completely safe for that to occur;

- instruct its employees to properly control and to timeously extinguish any non-authorised fires which occurred at the tip site;

(Page 12)

- comply with and to instruct its employees to comply with the conditions of its licence issued under the Environmental Protection Act.

24 The respondents also plead non-delegable duties in identical terms. On the issue of duty of care, the Master stated at par 62 of his reasons:

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

25 There is a danger in formulating a duty of care in specific terms. It was referred to by McHugh, Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337. McHugh J said (at 366):

"The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations."

26 The same point was made in a slightly different way by Gummow and Hayne JJ (at 388):

(Page 13)

"An analysis of the competing considerations referred to in Wyong Shire Council is impeded, not assisted, by formulating the relevant duty of care in terms of its breach, which was the approach that the majority in the Full Court appeared to adopt. …

A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That enquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."

27 The respondents' pleading of the duty of care suffers from the defects identified by the High Court in Graham Barclay Oysters (supra). I am also of the opinion that the Master's formulation bears the hallmark of a hindsight-assisted formulation that is too specific. In my view, the Shire had a duty to take reasonable care to prevent damage to the respondents' property as a result of a fire at the tip site. This formulation is intended to cover the prevention of fires at, as well as controlling the escape of fire from, the tip site.

28 The Master dealt separately (and discretely) with foreseeability. He found that it was clearly foreseeable that if fire broke out at the tip, it could escape from the Shire's land and damage the respondents' land and that was so notwithstanding the Shire had taken steps to prevent a fire at the tip escaping. It had undertaken controlled burning in the vicinity of the tip site and installed firebreaks. However, it was not suggested on behalf of the Shire that, having taken those steps, there was no realistic prospect of fire starting at the tip and spreading to adjacent properties. On the question of spotting, the Master stated (at [64]):

"It may well be the case that the defendant, its servants or agents, did not anticipate that a fire which started in the tip would spot with the effect that Hall's paddock would be set alight and the fire would spread throughout the district. But it is of no moment that the precise mechanism of the spread of the fire was not anticipated and could not reasonably be anticipated by the defendant. What was foreseeable was the prospect the fire might escape. In the circumstances that is sufficient …"

(Page 14)

29 In context, the Master is not suggesting that the spread of fire by spotting was not reasonably foreseeable. Earlier in his reasons he referred to what was accepted by everyone questioned on the subject (expert and non-expert alike) of the propensity for bushfires to jump ahead or to "spot" as a result of sparks, embers or burning leaves being caught by the wind and leading to a secondary or spot fire. The Master's comment on foreseeablity concerns a fire which started at the tip spotting in Hall's paddock, having regard to the distance from the tip and the type of trees separating them. There was expert evidence to the effect that the propensity to spot is dependant upon the type of forest involved (wandoo, jarrah or karri) and the maturity of the trees.

30 However, it is the Master's analysis of and findings relating to the Shire's breach of its duty of care that is the subject of the first ground of appeal.

Breach of Duty

31 The parties contentions as to the scope of the Master's findings in relation to the Shire's breach of duty have to be seen in the context of the respondents' pleading. The respondents' particulars of negligence are extensive. They include the Shire's failure to manage the tip site so as to minimise the risk of a fire starting and spreading into neighbouring properties, its failure to comply with its licence conditions and its failure to instruct its servants or agents:

(a) not to leave the tip site if there was a fire burning or smouldering at that site;

(b) to extinguish all fires at the tip site before leaving the site;

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

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

32 The respondents also pleaded that the Shire was vicariously liable for the negligence of Mr Watts and Mr Forward in failing to extinguish the fire or to take steps to cause the fire to be extinguished or controlled.

33 It is common cause that the Master found the Shire was negligent in not having instructed its employees to promptly extinguish fires at the tip. The Shire says that it was the only finding of breach made by the Master. The respondents say the Master also found that the Shire was negligent in

(Page 15)

breaching its licence conditions, or some of them, and that Messrs Watts and Forward had been negligent, for which the Shire is vicariously liable.

34 I deal firstly with the question whether the Master erred in finding the Shire to have been negligent in not instructing its employees to promptly extinguish fires at the tip.

35 It was accepted that the Shire had not issued instructions to its employees or agents directing that any fire at the tip be immediately extinguished. The Shire confirmed in an answer to an interrogatory that it had not instructed any of its employees:

(a) not to leave the tip if there was a fire burning or smouldering;

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

(c) to immediately obtain assistance to extinguish a fire at the tip if assistance was needed;

(d) to inform the Shire clerk or the Fire Control Officer of any fire burning or smouldering at the tip.

36 The Master referred to these facts and continued:

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

This is not a case where the defendant is being asked to meet some esoteric standard conjured up by lawyers acting with the benefit of hindsight. Nor is it a case where what the defendant is being asked to do is expensive, inconvenient or in any way unrealistic. All the defendant was required to do was to instruct its employees to ensure that any fire seen on the tip site was extinguished as soon as possible. This might have been done by way of an in-house course held at the beginning of the fire risk period. It might even have been as simple as putting a notice in

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a prominent position in the defendant's works depot. Perhaps given the importance of fire control it could have been done by way of written directive issued to each of the defendant's employees. None of these alternatives is difficult, none is expensive to implement. Yet the defendant did nothing.

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

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

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

37 Thus, the failure to instruct concerns Mr Watts inaction in relation to the smouldering grain and Mr Forward's delay in responding to Mr Butcher's report of smoke coming from the tip site.

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38 The substance of the Shire's challenge to the Master's finding of breach is that there was no foundation for his conclusion that the Shire breached its duty of care by failing to instruct the employees to promptly extinguish fire at the tip, especially insofar as that finding was intended to relate to smouldering grain. It is said the Master did not evaluate the Shire's conduct by reference to what people do, or can be expected to do, in real life situations. In particular, it is said the Master did not refer in his reasons to a substantial body of evidence given at trial by local people, many with firefighting experience, that showed how people responded in fact to evidence of smouldering grain at the tip. I have already referred to the evidence of Mr Watts. He was an experienced volunteer firefighter. He extinguished a flame fire. He saw smouldering grain giving off a wisp of smoke probably no bigger than his finger. He said there was no sign of fire by which I infer, he meant flame. He did not cover the smouldering grain because he thought it was safe.

39 Mr Leslie Eyre was a Shire councillor and its Chief Bush Fire Control Officer. He had the responsibility of imposing harvesting bans if a measure called the "fire danger index" was above a certain level. He placed a harvesting ban at approximately 10.30 am on 15 December 1997. He was formerly employed with the Bush Fire's Board and in that role he visited country tips to inspect them for fire safety. There had never been an escape of fire from Brookton tip prior to 15 December 1997. He had seen grain at the tip which was smouldering but he had never seen a fire start in the grain.

40 Neil Flood was the Shire's Environmental Health Officer and building surveyor. He saw smouldering grain at the tip in September and December 1997. He visited the tip on 11 December 1997. He saw wisps of smoke coming from dispersed grain and did nothing about it and did not instruct anyone else to do anything about it because he did not think it was a problem. David Willis was the captain of the Brookton Fire and Rescue Service. He saw smouldering grain at the tip in the months leading up to 15 December 1997. He did not give evidence that he was concerned or that he took any action in relation to the smouldering grain. Andrew Beaton was also a member of the Brookton Fire and Rescue Service. He too had seen grain burning at the tip around four or five times before 15 December 1997. He did not give evidence that he took any action concerning what he had seen. Harold Shipley salvaged cans and bottles from the tip and saw grain smouldering three to four months before the day of the bushfire and one to two weeks before the fire saw flames coming from the surface of the grain. He did not report what he saw to anyone at the Shire.

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41 Allan Chittleborough was a Brookton farmer. He visited the tip on average about one or two times per week. The grain had been smouldering for a number of months before the fire on 15 December 1997. He was present at the tip on 15 December 1997. He noticed grain smouldering. Mr Watts was present at the same time. He did not discuss the matter with Mr Watts or report smouldering grain to anyone. Another Brookton farmer, Mr Leonard Mattingly, saw wisps of smoke coming from grain on the day of the bushfire and did not report it to anyone. Marke Thorne was a roustabout. On the day of the bushfire he saw rubbish with flames flickering less than 1 foot high. The fire was not out of control. It was not unusual to see fire at the tip. He did not report fires to the Shire or anyone else.

42 As I understand the Shire's submission, it is to the effect, firstly that the Master erred in the test he applied and secondly that, applying the correct test, there is no foundation for a finding of breach. I start with the first aspect. The Master in his reasons draws no distinction between the process or stage of combustion in which both light (flame) and heat are generated and visible ("flame fire") and the process or stage of combustion in which heat is generated but flame or light is not visible ("smouldering fire"). Further, the Master does not refer to the magnitude of the risk of smouldering grain becoming or causing a flame fire. The inference is that the Master concluded that there is no relevant distinction between a smouldering fire and a flame fire. The Master reasoned that as it was reasonably foreseeable that a fire could escape from the tip site and there being no relevant expense, difficulty or inconvenience to the Shire taking the suggested alleviating action of instructing its employees, negligence was proven.

43 However, the question whether a defendant was negligent is not answered solely by an affirmative answer to the questions whether damage was reasonably foreseeable and whether the risk was reasonably preventable. The failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. It is necessary to ask the further question of whether a defendant's failure to eliminate the relevant risk showed a want of reasonable care for the safety of the plaintiff's property: Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 at 472, 473 per McHugh J; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472, 502; Graham Barclay Oysters Pty Ltd v Ryan (supra) at 367. It is in this context that McHugh J in Tame (supra) says (at 473) that the law of negligence should accord with what people really do, or can be expected to do, in real life situations.

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44 The process is described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in a defendant's position."

45 It was submitted on behalf of the respondents that the Shire owed a higher standard of care to adjoining property owners in relation to the escape of fire from the tip than ordinarily applies, indeed a standard close to or indistinguishable from strict liability, relying on the High Court decision in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. The High Court held that under the common law of Australia, any special rule relating to the liability of an occupier for fire escaping from his premises had been absorbed into, and qualified by, more general rules or principles including that of negligence. In that case, the owner of a building retained an independent contractor to do work on extensions to it. The work involved welding in close proximity to cartons containing highly flammable material. Due to the contractor's negligence, the flammable material caught fire which spread to an area of the building occupied by the plaintiff. The majority in Burnie Port Authority (supra) (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) said (at 554):

"… the standard of care remains 'that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances'. In the case of [a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher], however, a reasonably prudent person would exercise a higher degree of care. Indeed, 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'."

46 Thus, although there is only a single standard of care, it may require greater or lesser precautions depending on the nature of the risk. This is consistent with the Wyong Shire Council approach whereby the magnitude of the risk of damage as a result of fire, the probability of the risk eventuating (which will depend on a number of variables including
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the season, climatic conditions and the nature and state of the surrounding vegetation) and the nature of the alleviating action will determine what is required of a reasonable person in the position of the Shire. However, I am not persuaded that the High Court's reference to "practically to a guarantee of safety" was intended to apply generally to bush fires in rural areas.

47 Whether there has been a breach of duty is to be decided objectively according to the standards of a reasonable person in the position of the Shire. That involves a Wyong Shire Council evaluation. It is not answered by reference to the actual conduct of the local witnesses although that conduct may be relevant to at least one aspect of the evaluative process, namely the extent of the risk. I say may, because what is a breach will depend on the particular conditions and circumstances prevailing at the time of the conduct complained of: Quigley v Commonwealth of Australia (1981) 35 ALR 537 at 539 per Stephen J.

48 The next issue is whether, applying the correct test, there is a proper foundation for the Master's finding of breach. In my view, the answer is yes. The uncontradicted evidence was that there is a risk of grain spontaneously igniting. Mr Tong gave expert evidence for the respondents. He said that if a large quantity of grain had been dumped and become damp or affected by rain, it was possible that if it was not dispersed or adequately covered, spontaneous heating to ignition temperature could occur. Unless the oxygen supplied to combustible material is excluded by compacting and putting an adequate depth of gravel or similar material over it, spontaneous heating to ignition temperature could continue to re-occur and would do so until the combustible material was consumed. Mr Tong said there were actions that could have been taken by the Shire to address the risk of such a fire igniting on the tip including dispersing the grain over a wide area of the tipping face, covering it with gravel to exclude oxygen or conducting a controlled burn of the material at appropriate times with fire defence equipment on the site.

49 Save for Mr Watts and Mr Flood, none of the local witnesses gave a positive explanation for their failure to report what they had seen or to take any other action. In some instances the witness' response to smouldering grain and other fires at the tip was indistinguishable. Even assuming that, like Mr Watts, the local witnesses thought smouldering grain was safe, there may be a number of possible explanations for that attitude, none of which were explored in evidence. Possible explanations for their inaction may include that they thought there was only a small risk

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of smouldering grain becoming or causing a flame fire or that there was a small risk of fire escaping from the tip or the tip site because of the Shire's precautions or that they drew an inference of safety based on the Shire's inactivity. However, the fact that the witnesses describe the grain as "smouldering" is an acknowledgement that it is burning internally or invisibly, but burning nonetheless. That being so, there is an obvious risk of the smouldering grain generating a flame fire if only by causing other combustible material to catch alight.

50 Although there is no evidence of the degree of probability of smouldering grain generating a flame fire, the evidence establishes that it has the potential to become a flame fire, directly or indirectly, with the consequences attendant upon that eventuality. There is an obvious risk and its extent would be affected by prevailing weather and site conditions. The fact that many in the local community did not take any positive action in response to fires, including smouldering grain, at the tip is not in this case determinative of the standard of care required of the Shire in its capacity as the occupier and operator of the tip site.

51 In my view, the breach analysis produces the same result whether the issue is one of flame fire or smouldering fire having regard to the other factors in the evaluative process, in particular, the magnitude of the consequences if the risk eventuated, the exacerbation of the risk because of the weather and site conditions and the proposed alleviating action. That is, in the event of fire at the tip site, there was a real risk it could escape from the tip reserve causing very significant harm to surrounding property owners and the proposed alleviating action is such that the balance favours a finding of breach. It is important when considering the suggested alleviating action that a hindsight analysis be avoided. The source and extent of the risks of fire at the tip site and the manner of it spreading will be numerous and what a reasonable person in the Shire's position can be expected to do in real life situations has to be determined in that broad context. In this case the Master identified, correctly in my view, what was in effect a system's failure by the Shire. Although the Master did not analyse the question of breach in accordance with the authorities, I do not accept the Shire's contention that there is no foundation for his conclusion that the Shire breached its duty of care by failing to instruct employees to promptly extinguish fire, including smouldering grain, at the tip. I would dismiss the first ground of appeal.

52 For the sake of completeness I will deal with the respondents' submissions on the extent of the Master's findings on breach. The respondents say the Master also found that Messrs Watts and Forward had

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been negligent, for which the Shire is vicariously liable. The respondents put that proposition on the basis of a proper construction of the Master's reasons. They did not file a notice contending that the Master should have made these findings.

53 It is the case that the Master is critical of the conduct of Messrs Watts and Forward. He describes Mr Watts as having made in effect a basic and fundamental error. Of Mr Forward's conduct, he said it "almost beggars belief" that a person in Mr Forward's position would instruct his staff to finish their lunch before responding to Mr Butcher's report. He describes that as a lapse of judgment on Mr Forward's part. However, the Master's reasons do not contain a conventional analysis of whether or not the employees were personally negligent. There is no analysis of, or express conclusion, that the employees breached a duty of care, no specific identification of the duty owed by the employees and no reference to, or analysis of, the reasons why they consciously decided not to act in the way the Master thought appropriate. In addition, there is no express finding that the Shire is vicariously liable for their negligence or any discussion on vicarious liability. I am not persuaded that the Master considered or made findings on this aspect of the respondents' pleaded case.

54 The respondents also submit that on a proper construction of the Master's reasons he found the Shire was negligent in breaching its licence conditions, or some of them. Again, there is no notice of contention that such a finding ought to have been made. This is not the respondents' action for breach of statutory duty. In this part of its case, the respondents rely upon the alleged breach of the conditions of the Shire's licence as evidence of negligence.

55 As appears from the Master's reasons cited above, he completed his discussion of the Shire's failure to instruct its employees with the observation that they were but two aspects of what was "overall shocking mismanagement" of the tip site. Thereafter, in the balance of his reasons on breach of duty he refers to the background to the licensing system, the Code of Practice, the conditions of the Shire's licence and the exchange of correspondence between Ms Archdeacon and the Shire relating to her visit to the tip in September 1997. After referring to these matters the Master's focus returns to what steps the Shire took with respect to fire management and control having regard to the DEP advice of a fire at the tip in September 1997. There is no express finding by the Master of which conditions had been breached, whether the breaches constituted evidence of negligence and if so, why. Such would be expected if the Master was

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addressing his attention to that issue. I do not believe he was. The further discussion was relevant to what the Shire knew of fires at the tip, the risks involved and its response, all of which relate to the Shire's breach of duty in failing to give a fire extinguishment instruction to its employees.

56 In any event, the claim must fail. As with breach of statutory duty, a breach of the conditions will not be evidence of negligence if the conditions are imposed for a purpose other than preventing the escape of fire from the tip site. As discussed below, that purpose is outside the statutory power of the DEP under the Environment Protection Act.

Causation

57 The Shire contends that the Master did not make a finding that a fire extinguishment instruction would have averted the fire or its spread. My understanding of the Shire's submission is that it raised the further contention that there was no foundation for any such finding. This ground of appeal relates to both Mr Watts' response to the smouldering grain and Mr Forward's delay in responding to Mr Butcher's report of smoke.

58 Senior counsel for the respondents informed the Court that the respondents did not contend at trial and did not propose to contend in the appeal that the delay in responding to the report of smoke caused the damage. Accordingly, it is unnecessary to address that question.

59 It is the case that the Master does not make an express finding that a fire extinguishment instruction would have averted the loss. However, it is apparent from the Master's reasons as a whole that he combined consideration of breach of duty and causation. It can be inferred from the first paragraph of the Master's reasons quoted above that he concluded that a fire extinguishment instruction would have lessened the likelihood of employees failing to act promptly to extinguish a fire at the tip.

60 The Master identified the relevant breach as the Shire's failure to act. A failure to act in some circumstances may amount to a positive act. For example, there may be situations where the Shire's inaction could amount to a representation. But that is not how the case was argued and I say nothing further about it. The parties and the Master approached the case on the basis of an omission to act.

61 It is implicit in the Shire's submissions that the test of causation in this case is subjective. That must be so. A particular employee, Mr Watts, was at the tip site and saw the situation that became or caused the tip fire. He deliberately refrained from covering the smoking grain

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with gravel because he thought it was safe. Thus, the question of causation depends upon the hypothetical question of what Mr Watts would have done if the Shire had issued a fire extinguishment instruction. He was not asked and did not give evidence on that issue. However, his failure to give evidence is not determinative. Regard can be had to objective facts and probabilities: Rosenberg v Percival (2001) 205 CLR 434 at 449 per McHugh J and 460-465 per Gummow J.

62 As the relationship between the Shire and Mr Watts was that of employer and employee, the Shire had the capacity to prescribe, command and enforce directives to him and its other staff: McLean v Tedman (1984) 155 CLR 306 at 313. No attention was given in this case to the actual content of the fire extinguishment instruction, in the same way as no attention is usually given to the content of the warning in failure to warn cases. However, it is clear from the reasons that the fire extinguishment instruction should address fires of all types, including smouldering fires. In those circumstances, and in the absence of any sufficient evidence to the contrary, the proven facts support an inference that a fire extinguishment instruction would, on the balance of probabilities, have resulted in Mr Watts covering the smouldering grain with gravel (which is what he used to extinguish the flame fire on the day in question) and thus have averted the fire and its spread.

63 It is the case that the Master did not make such a finding. On one view, his approach to causation has similarities to that identified by Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408. She said (at 422-423):

"… where questions of causation depend on hypothetical considerations, allowance should be made, as in the assessment of damages, for the possibility that some event would not have occurred. Possibilities, if they are not fanciful, must be taken into account, at least in a general way, when ever causation or the related issue of prevention is in issue. But questions of that kind are not answered 'maybe' or, even, 'more probably than not'. They are answered 'yes' or 'no' depending on the probabilities for or against. In this respect, they are indistinguishable from the question whether an event happened where possibilities are taken into account but, once the question has been answered, those possibilities have no further bearing on that matter."

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64 Although the Master took the "maybe" approach to Mr Forward's delay in responding to the report of fire, I am satisfied that it is not the approach he took to Mr Watts' omission. On that issue, the Master found in substance, that the fire extinguishment instruction would have materially reduced the risk of harm to the respondents. In other words, the failure to give such an instruction materially increased the risk of harm to the respondents.

65 That test of causation has been applied in England where there is an evidentiary gap because, for example, indivisible harm is brought about by the cumulative operation of two or more factors (Bonnington Castings Ltd v Wardlaw [1956] AC 613) or there is successive exposure to the same harm from different defendants (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2002] 3 WLR 89; Ipp J, Review of the Law of Negligence, September 2002).

66 However, there is High Court authority for the approach taken by the Master particularly in cases where there is a failure to act and causation is dependent on hypothetical considerations. In Chappel v Hart (1998) 195 CLR 232 McHugh J said (at 244) that if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers. In the same case he also formulated a test close to, if not in effect the same, as that of Gaudron J in Bennett v Minister for Community Welfare (supra). McHugh J said in Chappel v Hart (at 247):

"… the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists."

67 In Bennett v Minister for Community Welfare (supra) Gaudron J said (at 420-421):

"… generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the

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common law duty caused or materially contributed to the injury."

68 This passage was cited with approval in Rosenberg v Percival (supra) at 461 per Gummow J; Chappel v Hart (supra) per Gaudron J, 257 per Gummow J, 273 per Kirby J; Naxakis v Western General Hospital (1999) 197 CLR 269 at 279 per Gaudron J.

69 On this view it would seem that there is no real distinction between breach of a common law duty and causation. As Gaudron J said in Bennett v Minister for Community Welfare (supra)(at 422), there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation because the duty relates to precautions a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of the harm of the kind suffered. A precaution would not be classified as reasonable unless its performance would, in the ordinary course of events, avert the risk that called it into existence.

70 However, in my assessment, it is unnecessary on the facts of this case to decide whether there is any real distinction between breach of duty and causation and whether a failure to take steps which would bring about a material reduction of the risk amounts to causation. Applying conventional principles, it was open to find, and the Master should have found, that the failure to give a fire extinguishment instruction caused the respondent's loss. I would dismiss this ground of appeal.

71 In the circumstances it is unnecessary for me to deal with the respondent's notice of contention. However, the issues were argued and for the sake of completeness I address them.

Breach of Statutory Duty

72 The Master rejected the respondents' breach of statutory duty claim on the narrow ground that he was not satisfied that any breach of the licence conditions was causally connected with the fire. He did not address the issues of statutory construction that arose. They included the general question of whether the Environmental Protection Act creates a cause of action at the suit of a private litigant, whether the analysis is affected by the fact that the duties are not contained in a statute or regulations but administratively imposed in licence conditions and finally, whether the legislative scope and purpose of the licensing provisions are relevantly directed at preventing or controlling damage from fire. If the statutory purpose is not the prevention of damage to property by fire then

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the respondents' claim must fail. On the other hand, if that question was answered in the affirmative, the general question would remain for consideration.

73 In this case, it is unnecessary to address the general question because the claim is determined by reference to the statutory scope and purpose of the licensing system under the Environmental Protection Act. Part V of the Environmental Protection Act deals with the control of pollution. The Shire was required to be licensed under s 56 of the Environmental Protection Act which materially provides:

"Subject to this Act, the occupier of any prescribed premises who –

(a) causes or increases, or permits to be caused or increased, the discharge of waste or the emission of noise, odour or electromagnetic radiation; or

(b) alters or permits to be altered the nature of the waste discharged or noise, odour or electromagnetic radiation emitted,


from the prescribed premises commits an offence unless he is the holder of a licence issued in respect of the prescribed premises and so causes, increases, permits or alters in accordance with any conditions to which that licence is subject."

74 Waste is defined to include matter whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment or that prescribed to be waste (s 3).

75 Part V of the Environmental Protection Act also contains other provisions for licences and for what are described as "works approvals". The Chief Executive Officer of the DEP has the power to grant the licences and works approvals referred to in Pt V and can do so on the conditions referred to in s 62. Section 62 concerns the conditions to which licences and works approvals may be subjected. By s 62(1)(c), the Chief Executive Officer may impose a condition to the effect that the occupier of premises take "… measures for the purpose of minimising the likelihood of pollution occurring as a result of any activity conducted or proposed to be conducted in any part of those premises".

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76 Pollution is defined to mean direct or indirect alteration of the environment to its detriment or degradation, to the detriment of any beneficial use or of a prescribed kind (s 3). I will assume without deciding that the definition is wide enough to include damage by fire.

77 However, it is clear from s 62(1)(c) in its statutory context that the pollution must be connected with any activity conducted or proposed to be conducted which gives rise to the requirement to be licensed. In the case of a licence under s 56, that relates to the discharge of waste or the emission of noise, odour or electromagnetic radiation. It is not directed at damage to property by fire. It is however, concerned with the discharge of smoke which falls within the definition of waste. The formulation of the conditions reflect the statutory purpose. General condition G12(a) which, requires that putrescible waste be covered with soil at the completion of the tipping of the regular municipal waste pickup, is directed to the discharge of odour. It is not appropriately adapted to the use of cover material to contain fires as and when they occur. Condition A2 is described as an "air pollution control" condition. It is directed at preventing the Shire from deliberately burning putrescible waste as a general disposal mechanism (as was previously the general practice) because of smoke discharge. There is no suggestion in this case that the Shire was deliberately burning putrescible waste.

78 As the statutory purpose is not directed at damage by fire (as distinct from smoke pollution), it cannot be said that the legislature intended to create a cause of action at the suit of the respondents for property damage as a result of the escape of fire from the tip site.

Conclusion

79 For these reasons I would dismiss the appeal and the respondents' notice of contention.