Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management
[2012] WASCA 79
•4 APRIL 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79
CORAM: McLURE P
PULLIN JA
BUSS JA
HEARD: 1 & 2 NOVEMBER 2011
DELIVERED : 4 APRIL 2012
FILE NO/S: CACV 29 of 2010
BETWEEN: SOUTHERN PROPERTIES (WA) PTY LTD
OLD VASSE VINEYARD PTY LTD
BARWICK ESTATE VINEYARD PTY LTD
First AppellantsSOUTHERN PROPERTIES SYNDICATE
OLD VASSE SYNDICATE
Second AppellantsAND
EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
First RespondentTHE STATE OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURPHY J
Citation :SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [No 2] [2010] WASC 45
File No :CIV 1065 of 2005
Catchwords:
Torts - Negligence - Public authority - Prescribed burning and smoke damage to grapes - Whether a duty of care - Whether nondelegable - Whether breach of duty - Application of Civil Liability Act 2002 (WA) - Nuisance - Whether pleaded - Whether Civil Liability Act applies to cause of action in nuisance - Immunity of employee - Whether employer immune
Legislation:
Civil Liability Act 2002 (WA), s 5B(1), s 5B(2), s 5U, s 5W, s 5X
Conservation and Land Management Act 1984 (WA), s 5 , s 18, s 19, s 32, s 33, s 36, s 38, s 54, s 55, s 57, s 58, s 60, s 132
Crown Suits Act 1947 (WA), s 3
Result:
Appeal dismissed
Notice of contention dismissed
Category: A
Representation:
Counsel:
First Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
Second Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
First Respondent : Mr R M Mitchell SC & Mr B P King
Second Respondent : Mr R M Mitchell SC & Mr B P King
Solicitors:
First Appellants : Mony de Kerloy
Second Appellants : Mony de Kerloy
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Sullivan v Moody [2001] HCA 59
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bader v Jelic [2011] NSWCA 255
Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660
Bell v Western Australia [2004] WASCA 205; (2004) 28 WAR 555
Benning v Wong [1969] HCA 58; (1969) 122 CLR 249
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Briggs v Lunt [No 3] [2011] WASCA 44
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202
Chief Executive Officer, Department of Environment and Conservation v Szulc [No 2] [2011] WASC 315
Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Donoghue v Stevenson [1932] AC 562
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Edwards v Blue Mountains City Council [1961] NSWR 803; (1961) 78 WN (NSW) 864
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Haris v Bulldogs Rugby League Club Ltd [2006] NSWCA 53; [2006] Aust Torts Rep 81‑838
Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Manchester Corporation v Farnworth [1930] AC 171
McKell v Rider [1908] HCA 9; (1908) 5 CLR 480
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Network Rail Infrastructure Ltd v CJ Morris (t/as Soundstar Studio) [2004] EWCA Civ 172
Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330
Rylands v Fletcher (1868) LR 3 HL 330
Shaw v Thomas [2010] NSWCA 169
State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
The Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258
The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
McLURE P: This is an appeal from the dismissal of the appellants' claims against the respondents for damage to wine grapes caused by smoke from a prescribed burn conducted in part of the Warren National Park in the south‑west of Western Australia. The prescribed burn was carried out by officers of the Department of Conservation and Land Management (the Department) from late March to early April 2004. The prescribed burn was on 560 ha of land in the Warren National Park (referred to as DPHB8).
The first appellants were the registered owners of land on the north‑east boundary of DPHB8. The second appellants leased portions of the land on which they (with one of the first appellants on its land) cultivated vines and grapes for wine production. The prescribed burn was conducted in the period between veraison (a grape developmental stage which commenced on 14 January 2004) and harvest (which was completed on 6 May 2004). Smoke from the prescribed burn tainted the grapes, causing a loss of $620,000.
The trial judge held that the respondents did not owe a general law duty of care to the appellants to avoid smoke damage to their grapes and even if they did, there had been no breach of duty under s 5B, s 5W(d) and s 5X of the Civil Liability Act 2002 (WA) (CLA). The trial judge did not consider or determine whether the respondents were liable in nuisance. Further, he did not determine the respondents' claim that they were exempt from liability under s 132 of the Conservation and Land Management Act 1984 (WA) (CALM Act).
In this appeal the appellants challenge the trial judge's findings in relation to duty of care and breach and contend the trial judge should also have found the respondents liable in nuisance. The respondents have filed a notice of contention seeking to uphold the trial judge's decision on the further ground that they are exempt from liability under s 132 of the CALM Act.
I differ from Pullin JA in relation to the issues that properly arise for determination in this appeal, the scope of the trial judge's factual findings and Pullin JA's conclusions on duty, breach and nuisance. He has concluded that the respondents, when conducting a prescribed burn on DPHB8 pursuant to its statutory power, owed a non‑delegable duty to grape growers in the Donnelly District to ensure that reasonable care was taken by CALM employees to avoid the reasonably foreseeable risk of smoke damage to the grape growers' grapes.
Pullin JA has also concluded that the option of deferring the prescribed burn, season by season, until it was possible to burn outside the veraison to harvest period, was open on the evidence and that the respondents breached their duty by not deferring it. At the hearing of the appeal, the appellants' counsel repeatedly resisted invitations to widen the grounds of appeal to challenge the trial judge's finding in [488] that, practically speaking, a prescribed burn of DPHB8 was safe and effective only during the period when grapes were at a stage where smoke taint poses a not insignificant risk. For the reasons given below, I have concluded that counsel was correct to do so.
The statutory framework for the conduct of the prescribed burn is central to the determination of all the issues.
The statutory framework
The Executive Director has two capacities. He is the Chief Executive Officer of the Department (s 36(3) of the CALM Act). He is also a body corporate bearing the name 'Executive Director of the Department of Conservation and Land Management' (s 38) in which capacity he is sued in this case.
The Department is a department of the Public Service of the State (s 32). Subject to the direction and control of the Minister, the functions of the Department are to, inter alia, manage land to which the CALM Act applies (s 33(1)(a)(i)).
By s 33(3)(a):
The management of land referred to in subsection (1)(a)(i) and the associated forest produce, flora and fauna shall be carried out ‑
(a)where there is a management plan for the land, in accordance with that plan.
Land to which the CALM Act applies includes State forest and national parks (s 5(1)). It was common ground that DPHB8 was on land to which the CALM Act applies.
The Conservation Commission of Western Australia (Conservation Commission) is a body corporate established under the CALM Act (s 18). Section 19 sets out the functions of the Conservation Commission which include:
(1) …
(a)to have vested in it State forest, timber reserves, national parks, conservation parks, nature reserves … ;
…
(g)in relation to management plans for land vested, whether solely or jointly with an associated body, in the Conservation Commission ‑
(i)to develop guidelines for monitoring and assessing the implementation of the management plans by the Department;
…
(h)to advice the Minister on the application of the principles of ecologically sustainable forest management in the management of ‑
(i)State forests and timber reserves … ;
…
(2)For the purposes of subsection (1)(h) the principles of ecologically sustainable forest management are ‑
(a)that the decision‑making process should effectively integrate both long‑term and short‑term economic, environmental, social and equitable considerations;
…
(3)It is declared that the vesting in the Conservation Commission of State forest, timber reserves, national parks, conservation parks and nature reserves is only for the purposes of subsection … [(1)(g), (h)] … and does not otherwise limit the functions of the Department under section 33.
Part 5 div 1 of the CALM Act deals with management plans. The Conservation Commission is a 'controlling body' for the purposes of that division. Section 54 relevantly provides:
(1)A controlling body shall be responsible ‑
(a)for the preparation of proposed management plans; and
(b)the review of expiring plans and preparation of further management plans,
for all land which is vested in it whether solely or jointly with an associated body.
(2) …
(3)Proposed management plans for any land shall be prepared ‑
(a)by ‑
(i)the controlling body for that land through the agency of the Department;
(ii)if the land is State forest or a timber reserve, the Conservation Commission through the agency of the Department in consultation with the Forest Products Commission.
The content of management plans is dealt with in s 55 which relevantly provides:
(1)A management plan for any land shall contain ‑
(a)a statement of the policies or guidelines proposed to be followed; and
(b)a summary of the operations proposed to be undertaken,
in respect of that land during a specified period, which shall not exceed 10 years.
The proposed management plan must be published in the Gazette (s 57). Provision is made for public submissions (s 58) and the management plan only comes into operation after being approved by the Minister (s 60). A Forest Management Plan for the period 2004 - 2013 (the Forest Management Plan) was approved by the Minister and came into operation on 1 January 2004. It replaced the Forest Management Plan for the period 1994 ‑ 2003.
The Forest Management Plan deals with prescribed burning under the heading 'Ecosystem health and vitality'. The objectives and actions proposed are as follows:
Objective
The plan proposes the following Actions at the whole of forest and landscape scale for the purpose of seeking to use and respond to fire in a manner that:
•optimises the maintenance of forest ecosystem health and vitality;
•promotes the conservation of biodiversity;
•controls adverse impacts of fire on the social, cultural and economic values of land managed by the Department and adjoining land; and
•minimises the risk of smoke emanating from prescribed burns impacting on population centres and other sensitive areas.
Actions proposed
17.1The Department will:
17.1.1maintain a competent fire management, suppression and response capability;
17.1.2prepare and maintain a fire management plan and smoke management guidelines;
17.1.3undertake an annual prescribed burning programme in a manner that:
•is in accordance with the fire management plan;
•is in accordance with the smoke management guidelines;
•has regard to the Goals for Understorey Structural Diversity referred in Action 4.1; and
•considers any special vulnerability of fauna and flora known to exist in a particular area to burning in that area; and
17.1.4consult with stakeholders and interested community members in a manner that seeks to develop community understanding of and support for, and enable constructive discussions and deliberations on, the planning and implementation of prescribed burning and other fire management programmes.
The trial judge found that the Department had prepared a 'master burn plan' which was the fire management plan for the Donnelly District (the fire management plan) for the purposes of cl 17.1.2 of the Forest Management Plan [157], [481]. There is no challenge to that finding. The trial judge also found that the fire management plan involves planning at four levels: (1) a three‑year (six‑season) indicative burning plan for the Donnelly District; (2) an annual indicative burning plan; (3) prescriptions for individual burns on the annual indicative burning plan; and (4) daily schedules in relation to the burning of particular areas on particular days [164]. If, for operational or other reasons, a burn in an annual programme is not able to be carried out in any year, it will generally be rolled over into the programme for the following year [167].
The burn prescription specifies the burn objectives, the weather and fuel conditions required to meet those objectives, the lighting sequences and patterns to be adopted, the burn coverage standards and smoke management requirements. It also includes a 'pre‑burn' checklist which identifies potential risks and impacts, including smoke impacts.
The daily operational scheduling of prescribed burns is done via daily, State‑wide telephone conferences in the morning (8.30 am) and evening (4.15 pm). Participants include Departmental district, regional and fire management services personnel. The daily burn programme is determined having regard to, inter alia, weather forecast and synoptic information provided by the Bureau of Meteorology, existing fire commitments, the level of resources available and smoke management. The approved programme is submitted to the Director of Regional Services where burns may be politically sensitive.
The Department had also complied with its duty to prepare smoke management guidelines. However, their content was not an issue at trial (or in the appeal).
In summary, the land the subject of DPHB8 is vested in the Conservation Commission who is responsible, with the Department, for developing a management plan. However, it is the duty of the Department to manage the land in accordance with the approved management plan. The Executive Director in his corporate capacity has no relevant role in the process.
Background and findings
What follows is the unchallenged background and factual findings of the trial judge. There are 926,604 ha of National Parks, State Forests, Conservation Reserves and unallocated Crown lands managed by the Department in the Warren Region [17]. The Warren Region is in the south‑west of Western Australia and includes the towns of Manjimup, Pemberton and Northcliffe [18]. This region is, for Departmental purposes, referred to as 'the Donnelly District'.
There are approximately 60 vineyards around Manjimup and Pemberton. In many cases these vineyards abut land managed by the Department which is or will be the subject of a prescribed burning programme by the Department [19].
The Warren National Park has considerable environmental significance for the State, particularly with respect to its veteran karri forest. It is also a public asset of importance for recreational activities and tourism [20].
DPHB8 was located about 8 km south‑west of Pemberton. The southern boundary of DPHB8 was the Old Vasse Road. To the north of DPHB8 there was private property including the appellants', and an area of State forest. The Warren National Park extended to the south. The area to the east and west of DPHB8 was surrounded by private property, with a number of dwellings close to its western boundary.
DPHB8 contained a substantial amount of karri forest. Karri forest is a dense, wet forest with deep litter which dries out very slowly compared with other forest types such as jarrah and wandoo [27]. The burn area for DPHB8 contained predominantly K1 and K2 understorey. That is the densest and wettest karri forest environment which dries out the most slowly and has the fewest number of days available for effective burning in any calendar year [32], [47].
The south‑west forests of Western Australia are fire prone. The climate, characterised by cool wet winters and hot dry summers, provides the optimum conditions for the build up of litter on the forest floor [53]. The litter provides fuel for forest fires. When heavy fuel is combined with strong, hot and dry winds, uncontrollable high‑intensity and damaging forest fires can result.
Fuel is the only factor affecting forest fire behaviour that humans can influence to reduce the speed and intensity of fire and make suppression easier. In all eucalypt forests the spread of fire depends on the debris and litter on the forest floor. Even under the worst conditions a fire cannot spread independently through the crowns of the trees. A crown fire in a eucalypt forest is always supported by intense fire-burning surface fuel. In essence, if there is no surface fuel there is no fire [56].
Fire suppression is a hazardous and dangerous activity to those undertaking it. Planned burning assists fire suppression by, inter alia, reducing the speed of growth of the fire from its ignition point, reducing the height of flames and the heat radiated from the flames, increasing the visual range in the forest and reducing the potential for spot fires [60].
For prescribed burning to be effective in reducing the impact of large fires under extreme weather conditions, a mosaic of recently burnt areas has to be established and maintained over large areas [61].
There are two primary sources of ignition of bush fires: lightning and humans. On average, about 35 bushfires are caused by lightning in the south‑west forest every year [65]. Humans are responsible for around 90% of all fires in Western Australia, most of which are deliberately lit. Arson frequently occurs under severe fire weather conditions and arsonists often select the most difficult areas in which to operate [66].
Bushland in the south‑west of Western Australia has three important characteristics in relation to its capacity to fuel a fire. They are: (1) the vegetation itself is highly flammable; (2) fine, flammable dry matter such as leaves, twigs and bark is constantly shed from living plants and accumulates; and (3) many tree species have stringy or fibrous bark which can be carried aloft as burning brands and embers in high winds, setting spot fires ahead of the main fire. Spotting and hop‑overs are very common features of Western Australian forest fires and are nearly always associated with heavy and dry fuels [68].
The south‑west fire season is in summer when hot, dry and windy conditions occur [73]. The south‑west of Western Australia experiences, in effect, a form of drought every summer [74].
There are a number of consistent weather features which operate during the south‑west fire season. Thunderstorms, which frequently generate lightning, occur regularly in the south‑west region during the summer months. There is also the regular passage of a series of high pressure systems from west to east across the southern half of the continent, known as the West Coast Trough. These systems generate several‑day cycles of increasingly hotter weather, with dry continental easterly winds backing into the north and north‑west. Winds blowing from the north to north‑west during summer and autumn are typically hot, gusty, dry and unstable. The transition from north‑east to north‑west winds often takes place abruptly and in the space of a few hours [75], [78].
There is a well recognised association in the south‑west between northerly winds and dangerous fire conditions. Given that association and the fact that the transition of the wind from north‑east to north‑west often takes place abruptly and in the space of a few hours, the Department avoids commencing prescribed burns when such conditions are likely to occur before the burn is completed and mopped up [82].
The trial judge found that: (1) wildfires cannot be accepted as an uncontrolled variable in forest management as they represent a real risk to life, property, townships, plantations, young regrowth, tourism, recreation and nature conservation; and (2) the most effective and strategic way to reduce the risk of severe wildfire damage is by broad scale fuel reduction by prescribed burning during mild weather conditions [94] ‑ [95]. The trial judge accepted the evidence of the experts called by the parties that:
(a)Prescribed burning is a necessary part of public land management to meet biodiversity, economic, silviculture, water and community protection objectives;
(b)Prescribed burning is the only effective way of reducing the potential impact of wildfires at a landscape level.
(c)Prescribed burning is complex and requires a high level of skill and planning.
(d)Prescribed burning operations are performed in a way in minimise environmental and economic damage.
(e)The Department has a detailed and thorough prescribed burn planning process.
(f)Prescribed burning prescriptions can be applied with some flexibility and discretion provided that approval to vary the prescription is received at the appropriate level. Professional judgment should be used to assess relevant risk mitigation or other operational factors and the prescribed burn should still meet the burn and operational management objectives [99].
In 1994, the Department determined that an annual prescribed burning programme of around 200,000 ha each year in the south‑west forest regions was desirable to provide a reasonable level of fuel reduction and hence protection from wildfires across the land managed by the Department in that area. There was bipartisan political support in Western Australia for prescribed burning as the primary fire protection strategy for private and public assets and for rural communities in the south‑west [123] ‑ [124].
The Department was unable to achieve its 200,000 ha target in the years between 1997 and 2003 due to a combination of factors including dry seasons that were unfavourable for safe and effective burning, the risk of smoke being transported to the Perth metropolitan area, lack of available resources due to the occurrence of wildfires and planning and implementation difficulties [125]. During these years, a combined backlog of 452,837 ha of prescribed burns was accumulated. This added significantly to fuel loads across the south‑west [127].
The years 2002 ‑ 2003 was one of the worst seasons for bushfires in Western Australia since the early 1960s. In the Donnelly District alone there were 51 wild fires, 24 of which were caused by lightning [133].
After major bushfires in New South Wales, Victoria and the Australian Capital Territory in 2002 and 2003, a Select Committee of the House of Representatives of the Australian Parliament and the Council of Australian Governments conducted national inquiries relating to bushfires. The reports recommended prescribed burning programmes. The Western Australian Government strongly supported prescribed burning and provided additional funding for it in late 2003 [139].
The Department had developed a system for analysing the threat from, and planning appropriate responses to, wildfires (the Wildfire Threat Analysis). It provides a standardised, repeatable framework to analyse quantified data relating to the significant factors likely to contribute to the threat of wildfire [153]. The Wildfire Threat Analysis provides an objective comparison of wildfire threat between different areas with different risks. There is also a rating system devised for prescribed burning which uses the fire protection and other management values referred to in the Wildfire Threat Analysis. The rating system is used to provide a guide for burning priorities and is used to ensure that the highest priority areas are burnt. Under the rating system the strategic value of a burn is allocated points between zero and 60. DPHB8 was given the highest strategic value of 60 points [155].
There are also tactical benefits derived from burning areas in an integrated scheme which are taken into account in the planning of burns by the Department [156].
To assist in predicting burning opportunities in the karri forest, the Department uses a publication developed by its officers entitled 'The Forest Fire Behaviour Tables for Western Australia' (known as the 'Red Book') [329]. Based on the evidence of the experts, the trial judge found that the Red Book was the best predictive tool for determining suitable prescribed burning conditions in karri forests.
There are a number of variables in the identification of prescribed burning opportunities including the 'surface moisture content', 'profile moisture content' of all litter, 'fire danger index', 'soil dryness index' and weather conditions.
The surface moisture content, which relates to the moisture content of the surface litter and other near surface fuels, must be within the range of 10% to 18% to ensure good ignition and mild to moderate fire behaviour [334].
The profile moisture content of karri litter fuels, which are relatively deep, must be between 25% to 60%. The proportion of a fuel bed that is available to burn (known as the 'available fuel factor') needs to be between 30% to 70% for a fuel reduction burn to be safe and effective [338]. That proportion requires the surface moisture content and profile moisture content to be within the specified ranges.
There are only a limited number of days each year when the required combination of surface moisture content and profile moisture content occurs in conjunction with the mild conditions (wind, air temperature, relative humidity, atmospheric stability) required to conduct an effective and safe fuel‑reduction burn [339].
Wind speeds recorded in the open (or above the tree canopy) should not exceed 20 km per hour. Lower wind speeds are required if surface fuels are dry and where a high proportion of the fuel bed is available to burn [349]. Further, the wind direction is an important limiting factor as it affects the direction of the head fire and the embers that can 'spot over' a burn boundary [351]. The fire danger index is calculated from the surface moisture content and the wind speed for each forest type.
The acceptable wind direction is also dictated by the location of adjacent heavy and flammable fuels. DPHB8 was located immediately north of very old heavy karri fuels in the Warren National Park. A burn prescription for DPHB8 on north to north‑west winds would be inappropriate. The safest wind directions for a burn of the area of DPHB8 are those that blow from the south, albeit with an easterly component [353] ‑ [354].
Further, the stable weather conditions that are normally suitable for safe fuel reduction burning in the south‑west forests are frequently the same that lead to smoke being blown by southerly winds into Perth, Bunbury and Mandurah. Smoke can be trapped below a blanket of warm air, called an inversion. Smoke can also be trapped under the night‑time inversion that often develops in the south‑west during the cool nights in the spring and autumn burning periods [356].
The Department manages smoke from prescribed burns, primarily with a view to preventing smoke and haze from settling on Perth and major regional centres. Other locations sensitive to smoke and ash, such as harnessed water bodies and local towns and communities, are also taken into consideration in the management of smoke from prescribed burns [357].
The soil dryness index is a numerical value that reflects the dryness of soil, deep forest litter, logs and branches. The Red Book contains a table of recommended soil dryness index limits for fire control operations in the forest. Burning outside these recommended limits increases the risk of fire escape and the cost of control and mop up of the burn. The dense karri fuel types, K1 and K2, will usually not be sufficiently dry until the soil dryness index exceeds 800 [362]. The burn prescription for DPHB8 prescribed a soil dryness index of at least 800. That figure was first reached in the spring/summer of 2003/2004 on 6 January 2004 [364].
DPHB8 had last been burnt in 1988 ‑ 1989. At the time of the prescribed burn it was carrying fuel loads of 73 ‑ 93 tonnes per hectare when the limit at which most wildfires can be contained in karri forests is 15 ‑ 19 tonnes per hectare [267].
DPHB8 was put on the three‑year indicative burn plan in the 1998 ‑ 1999 fire season based on Wildfire Threat Analysis principles, fuel ages and the time since it was last burnt. DPHB8 was a high priority burn and was strategically important to protect the life of residents and visitors in the area, property on adjoining private property, departmental infrastructure in the Warren National Park and regrowth of the forest south of the Warren National Park. The Warren National Park south of the burn area had high fuel levels with some areas more than 25 years' old and there was a significant risk that a fire escape across the southern boundary of DPHB8 could result in an uncontrollable wildfire.
In 2000 the DPHB8 burn prescription was approved for entry into the annual burn programme. The initial burn prescription was checked, reviewed and approved for implementation. The objectives of the prescribed burn were:
(a)to provide protection against wildfire damage to adjoining private property, the mature forest within the Warren National Park, park facilities and park visitors by the creation of fuel reduced areas; and
(b)to protect and maintain biological diversity processes and ecological values within the burn area by the application of a low intensity, slow moving prescribed burn that will provide a mosaic of burnt (70% ‑ 90%) and unburnt (10% ‑ 30%) patches.
The core lighting strategy of the burn prescription stated 'winds to be from a southerly direction' [279]. There were no opportunities to safely undertake the burn in the 2002 ‑ 2003 season as Western Australia experienced a severe fire season across the State. DPHB8 was carried into the 2003 ‑ 2004 burn programme with increased fuel loads which raised its priority for burning [284].
The DPHB8 prescribed burn required two days to light up. Several days thereafter were allowed for mopping up and patrolling the boundaries [87]. The burn of the edges of the area was done by hand. The burning of the remaining bulk of the area is called 'core ignition'. It is important for the edging burn to be deep enough so that when the core ignition is lit, the fire remains in the middle of the burn and does not run out to the boundaries. In the case of DPHB8, an edging depth of least 100 m was required by the burn prescription [90].
Expert evidence was adduced in relation to the effect of smoke on grapes. The trial judge accepted the agreed expert evidence that there was awareness of the risk of smoke contamination of wine grapes at the time of the prescribed burn but the level of knowledge was considerably less than that available at trial [265].
Based on the level of expert knowledge at trial, the trial judge concluded that:
(a)grapes are contaminated by smoke coming in contact with the vines, and the berries directly absorbing smoke compounds, or other parts of the vine absorbing the smoke compounds and the translocation of the smoke compounds to the berries via the phloem of the grapevine;
(b)it is likely that any smoke exposure, even of a low density or for a short period, has the potential to contribute to the uptake of smoke compounds in the berries and other parts of the vines;
(c)the risk of uptake of smoke compounds into the grapes is likely to be at its highest for seven days post-veraison to harvest, but the risk is not insignificant in the preceding period between when the berries are pea-size to three days post-veraison, and there remains a risk, albeit a low risk, in the vine-dormancy and early shoot‑emergence period; and
(d)whilst it is likely that any event of smoke exposure has the potential to contribute to the uptake of smoke compounds, the level of contribution will be dependent on, inter alia, undefined environmental or physiological restraints [479], [433].
The appellants' vineyard manager (Mr Pearse) had no knowledge that grapes might be affected by smoke until after the 2001 vintage [192]. In early 2002 Mr Pearse informed a CALM officer that smoke from an aerial burn (obviously not DPHB8) had affected the previous year's grape crop. In December 2003, Mr Pearse received notice of prescribed burn DPHB8 and advised CALM officers of his concerns about the prospect of smoke tainting. In December 2003 and January 2004 the Department received requests from other grape growers in the Pemberton area to defer other prescribed burns (DP33 and DP14) until after harvest [215], [223], [229].
On 3 February 2004, the first respondent signed a Contentious Issue Briefing Note which he submitted to the Minister for the Environment. The Briefing Note included the following:
The Department's position is that it will consult neighbours but the commencement and carrying out of prescribed burns will not be delayed at the request of individual wine grape growers. All prescribed burns will be commenced and carried out when the field conditions are suitable for the burn and resources are available.
On 7 February 2004, the Minister for the Environment approved the Department's approach in the Briefing Note. In the meantime, the appellants' solicitors had written to the Department advising that the appellants would hold the Department liable if the burn of DPHB8 proceeded and their grapes were damaged [245].
The four‑day forecast on 30 March 2004 indicated that weather conditions would be suitable for the burn of DPHB8. The fire behaviour parameters (surface moisture content, profile moisture content and soil dryness index) were also recorded as being consistent with the burn prescription [419]. Moreover, the burn prescription was amended so as to minimise its smoke impact on the appellants' vineyards. The amendment related to the wind direction on which the core ignition was to be undertaken. That required the Department to increase its resources on the western boundary. There was in fact a hop‑over on the western boundary that had to be dealt with [418].
The appellants contended at trial (but not in the appeal) that the burn of DPHB8 could have been delayed or rolled over, claiming the first respondent's evidence was that the burn was neither necessary nor urgent. In response to that submission the trial judge said:
In my view, the words 'necessary' and 'urgent' are capable of creating a misleading impression, in this context, in that they are apt to convey the notion that prescribed burning is done in response to ad hoc dangers as they arise from time to time, rather than as an integrated strategy designed to deal with the systemic risk of wildfire inherent in the landscape and environment of the State generally, and of the south-west in particular. It is correct to say that there was no evidence that absent a prescribed burn on 31 March 2004, there was an immediate and substantial risk that a wildfire would break out in the area of DPHB8. To that extent, the prescribed burn of DPHB8 might, on one view of it, conceivably be described as being neither 'necessary' nor 'urgent' in early 2004. Nevertheless, that characterisation imports an artificial and narrow focus which obscures the broader context in which the large-scale programme of prescribed burning is designed and implemented in Western Australia generally, and in the south-west of the State in particular [408].
Experts called on behalf of the appellants, Dr Tolhurst and Mr Muller, gave evidence of the opportunities for burning DPHB8. The trial judge rejected much of Dr Tolhurst's evidence. However, he accepted Dr Tolhurst's evidence that it was not possible to conduct DPHB8 without putting some smoke over the appellants' vineyard at some time during the prescribed burn.
The trial judge accepted the evidence of the appellants' expert Mr Muller who had considered the window of opportunity for prescribed burning in seven fire seasons between November 2000 and May 2007 [374]. In relation to those seven seasons, Mr Muller's conclusions in his report include the following:
On average there are only between 1 (for Karri 1 & 2) and 7 (for Southern Jarrah) suitable burning days outside the veraison to harvest period. Even if there were no other constraints and burning could be conducted on each of these days, this is fewer days than the number of burns required to effectively restrict the spread of major summer wildfires.
It is therefore not possible to maintain an effective fuel reduction burning programme if burning is restricted to outside the veraison to harvest period.
In cross‑examination, Mr Muller agreed that: DPHB8 was a necessary part of the prescribed burning programme; it was inevitable that prescribed burning would cause smoke on vineyards in Pemberton or in the Pemberton region; it is not possible to have an effective prescribed burning programme in the Pemberton region if you can burn only outside the veraison to harvest period; reasonable steps were taken to minimise smoke over the vineyards when the burn of DPHB8 was conducted; there were no other reasonable steps that could have been taken short of deferring the burn; and that a prudent fire manager would have taken advantage of the window of opportunity on 31 March 2004.
The trial judge found that 'there are approximately 60 vineyards which are adjacent or in close proximity to the areas managed by the Department, and which are also susceptible to smoke taint' [444]. He also accepted that the Department has no control over the way smoke will drift after a fire is started. Once a burn is commenced, the smoke will travel in whatever direction the wind, in combination with the relevant atmospherics, will take it [477].
Before leaving the facts, I propose to consider whether the trial judge erred in concluding that practically speaking, a prescribed burn of DPHB8 was safe and effective only during the period when the grapes were at a stage where smoke taint posed a not insignificant risk [488]. It needs to be understood that the trial judge did not confine the risk period to that between veraison and harvest. The period of 'not insignificant risk' (to use the statutory language) included the preceding period when the berries are pea‑size to three days post‑veraison.
Even if that period is excluded, the finding in [488] is in accordance with Mr Muller's evidence, accepted by the trial judge, that in the seven‑year period between 2000 and 2007, there was, on average, one day in each fire season that was suitable for burning a karri forest with K1 and K2 understorey. The prescribed burn of DPHB8 required two days just for the purpose of lighting up.
The trial judge's findings on duty and the scope of the challenge
The trial judge accepted the reasoning of Buss JA in Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [77] that s 5B of the CLA relates to a breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. In any event, the parties at trial conducted the case on the basis that the issue of duty of care was governed by the general law.
The trial judge noted that on one view of the appellants' case, it involved the proposition that 'the Department should not have performed its statutory obligation to manage the land by the carrying out of a prescribed burn in accordance with its fire management plan pursuant to the Forest Management Plan … in order to avoid the risk of smoke taint to [the appellants'] grapes'. He said:
Insofar as that is the nature of [the appellants'] case, it is, in my view, inconsistent with the statutory functions of the Department and no duty of care arises under the general law [481].
Alternatively, if the appellants' case was characterised as a claim that 'the Department had a common law duty … to exercise care to avoid the risk of smoke taint to grapes, to which its statutory duty to carry out prescribed burning so as to serve the overall objectives prescribed by the Forest Management Plan is subservient, the common law duty would also … be inconsistent with the statutory scheme' [482].
He also concluded that a common law duty of care to 'take into account relevant considerations and give proper consideration to the risk of smoke taint to [the appellants'] grapes in planning and implementing prescribed burning so as to minimise the effect of smoke on "sensitive areas"' would tend to distort, by skewing, the focus of the statutory decision‑making process, and distort the performance of the Department's statutory functions [484] ‑ [485].
For those reasons, he concluded that the respondents did not come under a duty of care to the appellants to avoid smoke taint to grapes when the Department was undertaking the planning and implementation of prescribed burning.
He further concluded that the imposition of a duty of care would not be regarded as reasonable in the circumstances. After referring to the limited opportunities for burning DPHB8 and the periods during which grapes were at risk from smoke taint, the trial judge continued:
Accordingly, practically speaking, the time when it is safe and effective to carry out prescribed burning in karri forest with K1 and K2 understorey is the time when the grapes are at stages of development where smoke taint poses a not insignificant risk. A duty to exercise reasonable care to avoid the risk of smoke taint to [the appellants'] grapes in planning and implementing a prescribed burn would involve the imposition of a legal obligation which was, in practical terms, incapable of being discharged.
Also, given the risk of smoke taint to grapes, the distance over which smoke may be carried on the wind, and the existence of 60 vineyards in the area in question, the existence of a common law duty is likely to involve competing duties to vignerons within the class. A wind forecast to take smoke away from one vineyard may well take it on to another. The point is illustrated by the vineyards around the prescribed burn 'Big Brook' (exhibit 33B), which has vineyards to the north and north-west, to the west, to the south, and to the east and north-east [488] ‑ [489].
The appellants say the trial judge erred in failing to find a duty of care in the following terms:
1(a)The First Respondent in caring for and managing Crown lands, including State forest, owed a duty of care to neighbouring land owners (including the Appellants) when bringing onto such land fire, for an unnatural or dangerous use, not to allow fire, smoke or ash from that fire to escape causing foreseeable damage to that neighbour's land;
(b)The Second Respondent … being a land owner who brought onto its land fire for an unnatural or dangerous use, owed a duty of care to neighbouring land owners (including the Appellants) not to allow fire, smoke or ash from that fire to escape causing foreseeable damage to that neighbour's land.
The remaining grounds of appeal in relation to duty of care are as follows:
2.In coming to the conclusion that no duty of care existed the learned trial judge erred in law in finding that:
(a)there is an inconsistency between the First Respondent's statutory duties under the [CALM Act] and a duty of care to the Appellants;
(b)lighting fires in a State forest and/or prescribed burning is a statutory obligation under the Act; and
(c)being required to observe or be bound by a duty of care to the Appellants would prevent, preclude or inhibit the First Respondent from carrying out its statutory duties under the Act.
3.The learned trial judge should have found that management plans made under the Act and approved by the responsible Minister were incapable in law of creating legal immunities …
4.In coming to the conclusion that no duty of care existed, the learned trial judge further erred … in not finding that starting fires or burning off in the way the Respondents did was an unnatural or dangerous use …
…
12.The learned trial judge erred in law and fact in coming to the conclusion … that the existence of a duty of care to the Appellant was or was likely to involve competing duties to other land owners;
(b)[t]here is no legal principle that a duty of care owed to a geographical neighbour can be ignored or not complied with or cease to be imposed because a similar duty is owed to another geographical neighbour;
(c)[t]he learned trial judge should have found that the Respondents owed a duty to prevent foreseeable damage to all close geographical neighbours.
Duty of care
There are echoes in the appellants' statement of the duty of care of the former rule of strict liability in Rylands v Fletcher (1868) LR 3 HL 330, both in the terminology employed (unnatural or dangerous use) and in the absence of any reference to a requirement to exercise reasonable care. This links with the appellants' ground 5 relating to the standard of care which they say is a degree of diligence by the respondents so as to amount to a guarantee of safety for the appellants.
The appellants were forced to this extreme formulation of the duty and standard of care because of the absence of a challenge to the finding that the respondents had no practical alternative but to burn during the period when there was a not insignificant risk of smoke tainting the appellants' grapes.
In substance, the appellants contend the trial judge should have taken a two‑step approach to determining the respondents' duty of care. The first step is to examine whether the relationship between the parties gave rise to a well‑known, well‑established and accepted duty of care at common law (to which they answer yes). The second step is to consider whether the CALM Act excluded the need for the respondents to comply with the common law duty (to which they answer no).
The appellants place significant reliance on Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. In that case the owner of a building retained an independent contractor to do work on extensions to the building. The work involved welding activities in close proximity to cardboard cartons containing an insulating material which burnt fiercely if brought into sustained contact with flame. Due to the contractor's negligence, sparks or molten metal fell on the containers and caused the insulating material to burn. The ensuing fire spread to an area of the building occupied by a licensee and caused damage to its stock.
The High Court held that for the purposes of the common law of Australia, the rule in Rylands v Fletcher has 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 (556 ‑ 557). 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' (554).
It is immediately apparent that Burnie Port Authority does not provide any authority for the strict duty of care for which the appellants contend. However, the principles in that case relating to duty and breach do not apply for additional reasons.
First, this is a claim about the escape of smoke not fire. Fire is inherently and unequivocally dangerous whereas smoke is not.
Secondly, the fact that the Department was in control of the land on which the prescribed burn was conducted and the appellants were the owners and occupiers of adjoining land, does not sufficiently describe the relationship between the parties. It ignores the statutory framework and other relevant contextual considerations in the assessment of the existence and scope of any duty of care. This case is more akin to the situation in Miller v Miller (2011) 242 CLR 446 [62] ‑ [65] than that in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 where the answer given by the majority as to whether a duty of care existed depended solely upon ticking boxes on questions of foreseeability [79].
Thus the two‑step approach of the appellants is misconceived. It is predicated on the erroneous assumptions that first, this is a case where the existence of a duty of care is well‑established and well understood and secondly, that the only question is whether the common law duty has been excluded by the statutory scheme.
This is not a case where the existence or scope of a duty is well‑established or well understood except at a high level of generality which is of no practical assistance. A duty formulated at too high a level of abstraction may provide an inadequate legal mean by which to determine the issue in a particular case. It will be too abstract if it is divorced from the facts said to enliven the duty: Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 [56], [81] (Gummow & Hayne JJ). On the other hand, it is wrong to formulate the duty with such particularity as to in effect circumvent the requirement of reasonableness at the breach stage of the analysis: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [191] ‑ [192] (Gummow & Hayne JJ).
When in doubt about where to pitch the duty, an alternative approach is to ask whether the type of damage suffered, caused by the particular want of care alleged against the defendant, resulted from the breach of a duty which the defendant owed the plaintiff. It is said this approach may reveal more readily the scope of the duty from which the plaintiff's allegation of breach and damage must depend: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [105]. The trial and appeal were conducted on the basis that the appellants suffered property damage, not pure economic loss. I will proceed on that assumption.
The existence and scope of a duty of care owed by a public body or officer (defined in s 5U of the CLA to include the respondents and the Department) is not governed solely by the common law. Section 5W of the CLA states principles that apply to both duty and breach. However, it is convenient to commence with the common law.
There is no single unifying principle for liability in negligence of public authorities: Pyrenees Shire Council v Day (1998) 192 CLR 330 [189]. The law has been described as remarkably confused: Aronson MI, 'Government Liability in Negligence' (2008) 32 Melbourne University Law Review 44, 46. So it is. Aronson notes a movement away from immunity from duty, at least in relation to 'policy' decisions, towards the more flexible breach stage which focuses attention on the reasonableness of a particular act or omission: Pyrenees Shire Council [182] ‑ [183]; Brodie v Singleton Shire Council (2001) 206 CLR 512 [106], [150] ‑ [151].
But even at common law, the factors relevant to the existence and scope of a duty of care can differ when the putative tortfeasor is the government (federal, state or local): Graham Barclay [12] (Gleeson CJ). That is primarily because the statutory context in which the government is obliged or empowered to act is instrumental in shaping the contours of the duty of care and the specific acts or omissions (content) falling within the scope of the duty. See Drexel London (a firm) v Gove(Blackman) [2009] WASCA 181 [262] ‑ [268].
Prima facie, when statutory duties or powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered: Sutherland Shire Council v Heyman (1985) 157 CLR 424, 458; Pyrenees Shire Council [177]; Stuart v Kirkland-Veenstra (2009) 237 CLR 215 [117].
The respondents conceded (correctly in my view) that under the general law, the Department would be liable for damage caused by the escape of fire from a prescribed burn on property under its control which is attributable to the negligent exercise of its statutory powers and duties. However, we are only here concerned with smoke damage from a fire that for all intents and purposes remained within the intended boundaries of a prescribed burn. Moreover, it was common cause that DPHB8 was appropriately included on the prescribed burning programme and that there was no reasonable alternative method of achieving the statutory objectives.
The prima facie statement of duty is subject to limitations arising from the principle of coherence. There will be no duty at common law to the extent that it is incompatible with other duties, statutory or otherwise, imposed on a defendant. Incompatibility includes, but is not confined to, situations where a statute expressly or impliedly excludes a common law duty. This is explained by the High Court in Sullivan v Moody (2001) 207 CLR 562. The court said:
The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable … But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of … exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations [60].
The question is whether a duty of the kind for which the appellants contend can rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty: Sullivan v Moody [55]; Tame v The State of New South Wales (2002) 211 CLR 317 [123], [231]. Thus, a duty will not arise if it may undermine the effectiveness of the duties imposed by the statute or if it could distort the performance of statutory functions: Graham Barclay [78]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 [216], [292]; Hunter Area Health Service v Presland (2005) 63 NSWLR 22 [21].
At common law, the distinction between a statutory power and a statutory duty, generally speaking, has limited relevance to tortious liability arising out of the performance or non‑performance of statutory functions: Sutherland Shire Council (457) (Mason J). Mason J continued:
When a statute sets up a public authority, the statute prescribes its functions so as to arm it with appropriate powers for the attainment of certain objects in the public interest. The authority is thereby given a capacity which it would otherwise lack, rather than a legal immunity in relation to what it does, though a grant of power may have this effect when the infliction of damage on others is the inevitable result of its exercise. In framing such a statute it is inconvenient to describe the intended activities of the authority in terms of a series of positive duties. It is preferable to express those activities as functions or powers so that the authority is free to make policy-making decisions and discretionary judgments with a view to attaining the statutory objects. Decisions and judgments of this kind will be involved as a preliminary to exercising, or declining to exercise, a power and, subsequently, in determining how it is to be exercised. Viewed in this light statutory powers are not in general mere powers which the authority has an option to exercise or not according to its unfettered choice. They are powers conferred for the purpose of attaining the statutory objects … (457).
Against that background I turn to the regulatory framework, the source of which is the CALM Act, the Forest Management Plan and the fire management plan. The Department is under a general statutory duty to conduct prescribed burns in the south‑west of Western Australia: Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126. In particular, the Department is under a statutory duty to manage land to which the CALM Act applies (which includes DPHB8) in accordance with the Forest Management Plan: s 33. The Department complied with its duty under cl 17.1.2 of the Forest Management Plan to prepare a fire management plan and smoke management guidelines, and its duty under cl 17.1.3 to undertake an annual prescribed burning programme that was in accordance with the fire management plan and smoke management guidelines.
Pursuant to the exercise of its duties and powers, the Department placed DPHB8 on the annual prescribed burning programme for 2003/2004. However, inclusion on the annual prescribed burning programme does not determine when or how any particular prescribed burn is to be carried out. The decision to burn can only reasonably be made shortly before it is carried out and then only when all of the many conditions necessary for a safe and effective burn come into alignment.
One of the primary purposes of a prescribed burn in the south‑west of this State is to materially reduce the destructive impact of wildfires at a landscape level. Wildfires in the south‑west are a real and present danger, particularly in summer, and pose a real risk to life and property. On any view, the destructive potential of a wildfire in relation to life and property is multiple orders of magnitude higher than the destructive potential of smoke alone.
There can be no prescribed burn without smoke. Further, the Department does not have control over all the variables that can impact on the amount, intensity, duration and direction of smoke from a prescribed burn. This is confirmed by the appellants in their ground of appeal 6(ii) which relevantly provides:
Both Respondents knew that no sensible or reasonable precautions could be taken (once the burning off operations commenced) to prevent damage to the Appellants because:
(a)the weather in the locality of the land in question at the time of the burn was and is unpredictable …
(b)the wind direction and speed in the locality of the land in question at the time of the burn was and is unpredictable.
It is clear from the statutory language and its scope and purpose that the objective of minimising the risk of smoke from a prescribed burn impacting on sensitive areas is subsidiary to the primary objects of the power. The Forest Management Plan uses the term 'minimise' rather than avoid. By 'subsidiary' it is meant that where there is a conflict between the furtherance of a primary purpose of the power and minimising the risk of smoke impact, the latter must yield.
Further, it is of particular significance that the Department exercises its powers in relation to prescribed burning for the benefit of the south‑west community as a whole. Different classes of interested parties and even individuals within classes will have interests which are in conflict. For example, minimising the risk of smoke over the appellants' vineyards increased the risk of fire escaping over the western boundary of DPHB8 where there are residential dwellings.
The common law will not impose a duty on the Department that is incompatible with the primary purposes of its statutory functions (that is, its duties and powers) and, when the power is to be exercised for the benefit of the south‑west community as a whole, where persons potentially affected by the Department's decisions have competing and conflicting interests.
It follows that the strict duty contended for by the appellants is simply not open. On the appellants' statement of the duty, the alleged breach is in effect the conduct of any prescribed burn on DPHB8, and on any other land under the control of the Department, from which smoke could travel to the appellants' vineyard. Smoke can travel long distances. As I sit writing this judgment in the centre of Perth, the City is and has for the past few days been swathed in thick smoke from a bushfire caused by lightning in the Warren region near Northcliffe, some 350 km to the south. The appellants' formulation of the duty is directly inconsistent with the Department's statutory functions.
I turn now to Pullin JA's formulation of the duty. It incorporates a statement that it is non‑delegable which I address below when considering s 132 of the CALM Act. The question is whether the Department owes a duty to grape growers in the Donnelly District to take reasonable care to avoid the reasonably foreseeable risk of smoke damage to the grape growers' grapes. The answer is no for a number of reasons. First, grape growers as a class form a subset of a much wider class, or group of classes, all of which are potentially affected by the Department's exercise of its statutory functions in connection with a single prescribed burn, many of which will have different and often conflicting interests to grape growers. Indeed, a single prescribed burn may also generate conflicts of interest within the class of grape growers. The best interests of a vigneron whose grapes are not at risk of smoke taint from a particular prescribed burn may be in reducing the risk of destruction of its income producing assets from an uncontrollable wildfire.
Secondly, the duty is to avoid the risk of smoke damage to grapes. The only way the risk can be avoided is to not carry out a prescribed burn anywhere in the Warren region when there is a not insignificant risk of smoke damage to the grapes on one or more of the 60 vineyards in the region. That outcome is incompatible with the primary purposes of the Department's powers and duties and with its duty to perform its statutory functions in the best interests of the community as a whole.
It is incompatible even if the trial judge erred in finding that practically speaking, the only time it is safe and effective to carry out prescribed burning in karri forest with K1 and K2 understorey is when the grapes are at stages of development where smoke taint poses a not insignificant risk. The effectiveness of prescribed burning as a fire mitigation tool depends upon an integrated strategic approach on a whole of landscape level.
In any event, I have concluded that the finding was well open on the evidence. That being so, the practical effect of the duty formulated by Pullin JA is to prevent any prescribed burning of karri forest with K1 and K2 understorey. That is directly inconsistent with the Department's statutory functions.
In order to accommodate the complexities created by the regulatory framework, I would formulate the Department's duty at an unusually high level of generality along the following lines. Subject to s 5X of the CLA and to the proper exercise of its statutory functions relating to prescribed burning, the Department in the performance of those functions has a duty to exercise reasonable care to avoid or minimise the risk of harm to persons and property. I would then apply the Hayne J test in Modbury Triangle and conclude that the alleged negligent acts do not fall within the scope of the duty.
I would dismiss grounds of appeal 1, 2, 3, 4, 5 and 12.
Breach
The thrust of the appellants' submissions is that the trial judge should have found that the performance of the statutory function itself (conducting a prescribed burn on DPHB8) was the relevant negligent act. That is, it can never be reasonable to carry out a prescribed burn in the Warren region if there is a not insignificant risk of smoke damage to grapes grown for commercial purposes. This contention reveals why the legal analysis can only appropriately be resolved at the duty stage. It is not the function of a court to rule on the reasonableness of statutory functions that the legislative arm of government has bestowed on the Department. In this case, 'social utility' for the purpose of s 5B(2)(d) of the CLA is not a matter on which the court is free to form and act upon its own personal assessment of the reasonableness of the statutory objectives and purposes.
Pullin JA says it was unreasonable not to defer the prescribed burn because it had not been established that it was 'impossible to ever burn' DPHB8. That reasonableness analysis gives primacy to the need to avoid smoke damage to grapes and ignores all other competing and conflicting interests. It is a flawed approach which flows from the formulation of the duty. Moreover, and in any event, the conclusion is inconsistent with the unchallenged findings of the trial judge that practically speaking it was impossible to conduct a safe and effective prescribed burn in karri forest with K1 and K2 understorey without creating a not insignificant risk of smoke tainting of grapes, and that DPHB8 was part of an integrated strategy designed to deal with the systemic risk of wildfire inherent in the landscape as a whole. It is wrong to focus on DPHB8 in isolation.
Having regard to the nature of the alleged negligent breach relied on by the appellants, it is unnecessary to address their grounds of appeal relating to s 5W(d) and s 5X of the CLA. It is sufficient for present purposes to note that for practical purposes s 5X operates so as to significantly alter the otherwise applicable standard of care at common law. The statutory standard is the Wednesbury test of reasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230). It is wrong to equate that standard with the general law standard of care in negligence. There is no arguable foundation for a claim that the decision to proceed with the prescribed burn in this case was so unreasonable that no reasonable public body or officer in the respondents' position could have made it.
Nuisance
I agree with Pullin JA that the appellants did not unequivocally abandon their claim in nuisance which was open on the pleadings.
In order to determine whether the CLA applies to the appellants' nuisance claim, it is necessary to examine the common law.
Unless and until the High Court determines that the tort of nuisance, like the principle in Ryland v Fletcher, is subsumed in the tort of negligence, this court must proceed on the basis that nuisance is a separate cause of action.
Nuisance protects a claimant's interest in the beneficial use of land. It is not confined to the actual use of the soil but extends to the pleasure, comfort and enjoyment which a person normally derives from occupancy of land. Thus, nuisance covers physical damage to property and non‑physical damage. To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.
This exercise involves weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable. Although the 'fault' of the defendant may be a relevant consideration in an assessment of whether the interference with the claimant's enjoyment of land is unreasonable, the duty not to expose one's neighbours to nuisance is not necessarily discharged by the exercise of reasonable care. Liability in nuisance is strict. Once a prima facie case has been established, it is for the defendant to prove its defence.
There is a compelling case that, even though smoke from the prescribed burn of DPHB8 caused property damage, it did not constitute an unreasonable interference with the appellants' land. Prescribed burning has been a feature of the south‑west forests for over 80 years, long before the arrival of vineyards in the area; the evidence established that it is in the public interest of the community as a whole to carry out prescribed burning in the south‑west forests in order to (inter alia) reduce the risk to persons and property from wildfires, which are commonplace in the region; the reduction in risk from wildfires is also in the interests of persons who have commercial vineyards on their land; smoke is the inevitable and unavoidable consequence of prescribed burning (and wildfires); the potential damage to property from wildfire is far greater than that caused by smoke; it was practically impossible to conduct a prescribed burn of DPHB8 at a time when there was an insignificant risk of smoke tainting the appellants' grapes; and the respondents took all reasonable steps to minimise the amount of smoke over the appellants' vineyards. However, it is unnecessary to determine this issue in view of my conclusion that the defence of statutory authority applies.
The defence of statutory authority requires that the nuisance be an 'inevitable consequence of the authorised undertaking'. If the nuisance was an inevitable consequence of the authorised undertaking, the defendant will only be liable if, in the exercise of its statutory powers, it acted negligently: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 [16]; Benning v Wong (1969) 122 CLR 249, 324 ‑ 337 (Owen J). The reference to negligence is not to the tort. It is clear there is no requirement to prove that the defendant owed the plaintiff a duty of care.
In considering whether a nuisance is inevitable it is necessary to distinguish between statutory provisions that require a specified activity to be carried out and provisions that permit, but do not require, a specified activity to be carried out. In the former case there is no separate requirement of inevitability; any nuisance resulting from the activity will be authorised unless it is caused by negligence on the part of the person conducting the activity. All that is required is that the specified activity be executed (performed) with reasonable care. See Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed) [4.1.6.3].
Where the statute permits the specified activity to be carried on, it must be shown that what the legislation authorised could not be done without creating a nuisance and that the nuisance was not caused by negligence. The inevitability limb focuses attention, not on the execution of the specified activity, but on the decisions relating to whether, when or how to undertake the authorised activity. Thus, if the creation of a nuisance could have been avoided by the proper exercise of the statutory power (ie one that was consistent with its scope and purpose(s)), the defence will fail even in the absence of negligence: Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 [48] ‑ [57].
The escape of smoke from the prescribed burn on DPHB8 was the inevitable and unavoidable consequence of the Department's performance of its statutory function in the conduct of prescribed burning in the south‑west forests of Western Australia. It is analogous to the 'railway sparks cases' referred to by Owen J in Benning v Wong (331). Further, the trial judge found that there was no negligence in the decisions relating to the burn of DPHB8 or in the execution of those decisions. Accordingly, the claim in nuisance must also fail.
In these circumstances, it is unnecessary to determine whether the CLA applies to a nuisance claim against a statutory authority. The answer to that question depends on whether, if the defendant has established inevitability, the onus is then on the claimant to establish negligence. On my reading, that question is answered affirmatively by Owen J in Benning v Wong (referred to with approval in Bankstown City Council [16], fn 24).
My preliminary view is that the CLA would only apply if the appellants had to prove negligence. 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' even if they are sought to be recovered other than in an action for negligence (see s 5A(2) and s 5V(2)). The requirement for a causal link between the damage and the 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 an assessment of whether interference is unreasonable or that proven absence of fault is a material element of a defence to the nuisance claim.
Ground of appeal 13 should be dismissed.
Notice of contention - s 132 CALM Act
Section 132 is headed 'Exemption from liability' and relevantly provides:
The Minister, the Executive Director, any person employed in the Department … and any person who performs functions under this Act … is not personally liable for anything done or omitted to be done by him in good faith in, or in connection with, the performance or purported performance of his functions under this Act.
The appellants pleaded that the first respondent 'is an agency or instrumentality of the second [respondent] in whom possession, occupancy or control of [DPHB8] is and was at the material time held and exercised for and behalf of the second [respondent]'. That is incorrect. The Department was in control of DPHB8 and any involvement of the first respondent was in his capacity as the Chief Executive Officer of the Department not in his corporate capacity.
The negligent act of which the appellants complain in their pleading is that the first respondent lit fires on DPHB8 from which thick noxious smoke was discharged onto the appellants' land thereby causing extensive damage to the grapes (par 10). They then plead that the discharge and escape of smoke was caused by the negligence of the respondents (par 11). The 'particulars of negligence' claim that 'the second [respondent] and its servants or agents were negligent in lighting the fires' in the ways particularised.
Although not pleaded, the issue of whether the State owed a non‑delegable duty to the appellants was litigated (but not determined by the trial judge: [438] ‑ [441]). That being so, there was a claim against the State based on both direct (personal) liability and vicarious liability: State of New South Wales v Lepore (2003) 212 CLR 511 [30], [32], [146], [151]. The principles relating to non‑delegable duty, whether in relation to employers, agents or independent contractors, also apply to the Crown in right of the Commonwealth and States: Commonwealth v Introvigne (1982) 150 CLR 258.
All those involved on behalf of the State in the decisions relating to, and the execution of, prescribed burn DPHB8 were servants or agents of the State. The State is vicariously liable for the negligence of its servants or agents in the course of their employment. The question is whether the State also had a non‑delegable duty to ensure that reasonable care was taken by its servants and agents in the performance of their functions.
If, contrary to my view, the servants and agents of the State owed a duty of care in the terms identified by Pullin JA, I would agree with his assessment that the State would be under a duty to ensure that its servants and agents exercised reasonable care to protect the appellants' grapes in the conduct of a prescribed burn. An owner of land who allows a dangerous activity to be performed on it owes a non‑delegable duty to guard persons from the danger: Burnie Port Authority. It follows that the State has a non‑delegable duty to ensure that its servants and agents exercise their power in relation to prescribed burns with reasonable care.
Smoke from a prescribed burn, although not itself intrinsically dangerous, is the unavoidable consequence of the burn and any assessment of reasonable care in relation to damage from smoke is inextricably intertwined with duties to others that are compatible with the statutory duty to conduct prescribed burns.
It is accepted by the respondents, correctly in my view, that s 132 provides no immunity to the State in relation to its direct (personal) liability for any negligence of the Department in relation to DPHB8. Therefore, I would dismiss the notice of contention.
PULLIN JA: This is an appeal against the judgment of Murphy J (as his Honour then was). His Honour dismissed a claim for damages brought by the appellants against the respondents.
Some of the appellants were grape growers and their grapes were tainted by smoke emitted by a 'prescribed burn' conducted by the first
respondent on 31 March 2004 and 1 April 2004. The burn was conducted on 560 hectares of land containing karri forest (described as DPHB8), which was a small part of the Donnelly District in the Warren National Park. DPHB8 was bordered by the Old Vasse Road, State Forest and the appellants' properties on the north‑eastern boundary.
Grapes are particularly susceptible to smoke damage from the commencement of veraison (which is when the sugar content of the grapes reaches a certain percentage) to the end of harvest. The risk of smoke damage is at its highest seven days after the start of veraison and up to the time of harvest [433] and [487]. The date of those events varies from year to year, but usually occurred on the appellants' properties in January (start of veraison) and late March to early May (end of harvest) [10]. Early in the growth period of grapevines, which is up to the time when the vines flower, the risk of smoke damage is 'low' (see the evidence of Professor Gibberd, which the trial judge accepted [255] and [479(c)]). Then, in the period from when the berries are pea sized until about the start of veraison [261] there is more risk - a not insignificant risk - but no finding was made by the trial judge that in this period the risk was of 'serious harm', as was the case in relation to the burn of DPHB8 which affected grapes in the veraison to harvest period. The trial judge found, as will appear later, that the potential for harm at the time of the burn of DPHB8 was 'serious' because smoke taint could damage the whole of the appellants' grape crop [500] and [502] (which in fact came to pass).
In this case, the decision made by the respondents was to carry out the prescribed burn. However, this is characterised by the respondents as a decision based on a policy decision because it is said that the decision to light the fire was preceded by a 'policy' decision not to defer the lighting of the fire. This is, in fact, the decision relied on by the appellants to make out its case. The appellants contend that the precaution of deferring was the relevant 'precaution' for the purposes of s 5B(1) and (2). In my opinion, the decision not to take the precaution of deferring the burn was a decision based substantially on social and political factors.
However, if the decision taken 'was so unreasonable that no reasonable public body or officer in the defendant's position could have made it', then the decision can be relied on to support a finding of fault. The assessment of whether the decision was unreasonable is similar to the assessment involved in the weighing of the considerations set out in s 5B(2).
In this case, no reasonable public body or officer in the respondents' position could have decided to press on with the prescribed burn rather than take the precaution of deferring it to another time in circumstances where:
(a)smoke generated from the prescribed burn, particularly the core ignition burn, generated a substantial intensity of fire and associated high levels of smoke 'not dissimilar' to smoke from a bushfire [495];
(b)where it was known that forecasts as to wind direction provided no guarantee that smoke would be kept off the vines if the burn occurred during the veraison to harvest period;
(c)where the appellants' properties were in close proximity, and indeed right on the boundary of the area to be burnt;
(d)where the respondent knew (not merely ought to have known) that there was a not insignificant likelihood that smoke on grapes in the veraison to harvest period would cause harm;
(e)where the harm, if it occurred, was serious and that it could cause the loss of the whole of the appellants' grape crop;
(f)where it was possible to burn at times outside the veraison to harvest period;
(g)where the respondents had deferred the burn in another area in order to avoid such harm.
As a result, the trial judge erred in making a finding that the appellants' reliance on the respondents' decision to defer the burn was contrary to s 5X. As a result, ground 11 should be upheld.
Section 132 of the CALM Act
Section 132 of the CALM Act read:
Exemption from liability
The Minister, the Executive Director, any person employed in the Department, a member of the Conservation Commission, Marine Authority or Marine Committee, and any person who performs functions under this Act or the Wildlife Conservation Act 1950 is not personally liable for anything done or omitted to be done by him in good faith in, or in connection with, the performance or purported performance of his functions under this Act or the Wildlife Conservation Act 1950
The respondents have filed a notice of contention relying upon s 132 as a further reason why the trial judge's decision should be affirmed.
At [441] the trial judge said that 'this is not a case raising for consideration the question of whether the defendants would be liable for acts done by independent contractors'. The trial judge also said that nor was it a case where there was a risk of conflagration if appropriate precautions were not taken, and that fire was not a risk of the conduct, but the very nature and purpose of the conduct. The trial judge held that the outbreak of fire was not the product of negligence, but rather the fire was 'a deliberate strategy, legislatively sanctioned to achieve certain important social goals'.
Section 132 is relevant only to the claim against the second respondent, the State of Western Australia. At the hearing of the appeal, there was no dispute that the prescribed burn was lighted and controlled by CALM employees. They are not employees of the first respondent. The first respondent correctly submitted that as a body corporate, it would not be liable for the acts of CALM employees. The trial judge so found [516].
The second respondent then submitted, in effect, that if it was to be liable, it would be on the basis of vicarious liability for its employees. However, the second respondent then submitted that s 132 operated to prevent the CALM officers from being personally liable and that in consequence, the second respondent could not be vicariously liable given the immunity of its employees from liability. Reliance was placed on Parker v The Commonwealth [1965] HCA 12; (1965) 112 CLR 295, 301 ‑ 303 and Bell v Western Australia [2004] WASCA 205; (2004) 28 WAR 555 [34]. There is debate about the jurisprudential basis of vicarious liability. Either the employer is vicariously liable because the acts and omissions of the employee are imputed to the employer (master tort theory), or because the employer is answerable for the employee's tortious liability (servant tort theory). Under the servant tort theory, the immunity of the employee from an action in tort will mean the employer is not vicariously liable, but under the master tort theory, the employer may be liable even if the employee is immune: see the discussion in The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97 [11] ‑ [19].
These cases did not, however, discuss the situation where the defendants owed a non‑delegable duty of care. The trial judge, in his discussion about s 132 of the CALM Act, expressed the view that for the reasons given at [441], the case did not involve the existence or otherwise of a non‑delegable duty of care as explained and applied in Burnie Port Authority. Reasons given earlier conclude that the trial judge erred in that respect.
Insofar as the respondents rely on Bell to support the notice of contention, that decision is distinguishable for the following reasons. A person who takes control of land to bring a dangerous substance onto land owes a non‑delegable duty of care to avoid a foreseeable risk of injury or damage to the person or property of another: Burnie (556 ‑ 557). In cases involving a non‑delegable duty of care, a breach of that duty by failing to ensure that employees exercise reasonable care involves the employer in primary, not vicarious liability: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 29 (Mason J); The Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 (Mason J, Gibbs CJ agreeing), 280 (Brennan J). The master tort/servant tort debate which was canvassed in Bell has no relevance in cases where a non‑delegable duty has been breached. If the employee is exempt from liability, that will not benefit the employer who breaches a non‑delegable duty of care as a result of a failure to ensure that the employee exercises reasonable care.
The persons who lit the fire were employees of CALM (this was conceded at the hearing of the appeal). Those persons were employees of the second respondent, the State of Western Australia. Section 132 of the CALM Act protected those CALM employees personally, but that exemption from liability does not exempt the employer, the second respondent, because it breached its personal non‑delegable duty to ensure that its servants exercised reasonable care.
As a result, the notice of contention should be dismissed.
Nuisance - grounds 13 and 14
The trial judge did not consider a cause of action in nuisance. The question is whether the statement of claim supported a cause of action in nuisance and if so, whether the trial judge erred in failing to consider such cause of action. If the trial judge did err but there would have been no different outcome, then there will have been no miscarriage of justice.
The first question is whether nuisance was pleaded. The appellants pleaded material facts in the statement of claim supporting a cause of action for damages for nuisance. The essence of a claim in nuisance is a pleading of material facts revealing a substantial and unreasonable interference with the beneficial use of the appellants' land. Interference by smoke has supported a cause of action in nuisance. Smoke may constitute an actionable nuisance: see McKell v Rider [1908] HCA 9; (1908) 5 CLR 480; Benning v Wong (315). The respondents did not contend otherwise. The statement of claim pleaded that the smoke caused damage to the appellants' grapes which the parties agreed resulted in a loss of over $600,000 to the appellants.
The respondents submitted that the statement of claim did not plead nuisance because the word 'nuisance' or the words 'unreasonable interference' did not appear in the statement of claim. That submission must be rejected. The obligation in the rules is to plead material facts and if the pleaded material facts reveal unreasonable interference and nuisance, then the cause of action, ie the facts supporting the claim for relief (see Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234), is revealed. The pleaded material facts and the claim for damages revealed a cause of action in nuisance.
Was the nuisance cause of action abandoned?
The respondent contended that the trial judge did not consider the cause of action in nuisance because it had been abandoned. Whether this was so has to be determined by reference to the following passage in the transcript.
When opening the case, senior counsel for the plaintiffs (appellants) said, 'The claim is brought both in negligence and nuisance' (ts 198).
After the case was opened, counsel for the respondents, Mr King, and Mr Viner QC, senior counsel for the appellants, discussed the issue as revealed in the following pages of transcript (ts 200 ‑ 201):
KING, MR: Your Honour, while Mr Casey is being sworn, can I just rise for a moment to address you in relation to one aspect of my learned friend’s opening?
MURPHY J: Yes.
KING, MR: There is the suggestion that nuisance as well as negligence is being relied upon by the plaintiffs. Nuisance has not been pleaded and in order to now rely on it as a fresh cause of action, the plaintiffs would need to amend their statement of claim. This, we say, is just too late. It may well be that there are many similarities between nuisance and negligence and the criteria are very similar but in my understanding of the law, [limited] as it may be in that area of nuisance, there is a difference. Different issues would arise. The defendants would need to consider whether or not to call evidence. They would need to amend the defence to deal with the pleading. In these circumstances it just seems to us that it’s just too late.
MURPHY J: Yes. Perhaps I will just ask Mr Viner, do you say nuisance is pleaded, Mr Viner?
VINER, MR: It’s not explicitly pleaded but our contention would be that it is at the very least implicit in the allegation of negligence and the pleadings of fact that in the sense that the defendants undertook an act which does create a nuisance, namely, lighting a fire from which smoke and ash can be emitted, which if not undertaken with care, which is the negligence component, leads to liability - but I will, if I may, have a look at that and seek to clarify the position, but fundamentally we rely on the pleading as it is.
MURPHY J: Yes. If you need to amend then, of course, you would have to make an application and show the minutes and you would have to swear an affidavit. You have read the High Court’s recent decision about amending cases at trial.
VINER, MR: I understand, your Honour, and in making that remark in opening I was intending that it did not alter the fundamental pleading that is there which is based on negligence.
MURPHY J: Yes. Perhaps certainly think about it and speak to Mr King about it but any application to amend is quite a significant thing, these days at least.
VINER, MR: I understand, your Honour, and I don't wish to widen the trial, nor complicate it unnecessarily. Thank you.
Subsequently, on the next day, the transcript reveals the following:
VINER, MR: I will not be seeking to amend the pleadings.
MURPHY J: All right, thank you.
VINER, MR: I am quite satisfied of those on the basis of Burnie.
MURPHY J: Yes.
At the end of the trial, no written or oral submissions were made by either party about a cause of action in nuisance.
The trial judge evidently thought that the cause of action in nuisance was no longer pursued, which is the only explanation for why his reasons did not mention such a cause of action.
In my view, the exchange between counsel, and between counsel for the appellants and the trial judge, ended ambiguously. It is possible that senior counsel could be taken as saying that he would not amend the pleadings because he thought that no amendment was necessary (which was correct). On the other hand, it was open to infer that senior counsel thought (incorrectly) that amendment was necessary and that he would not make the amendment and would therefore abandon the asserted claim in nuisance.
However, a party cannot be taken to have abandoned a cause of action which is supported by the pleadings unless it is expressly abandoned. The cause of action in nuisance was pleaded, it was not expressly abandoned and therefore the trial judge erred in failing to deal with that cause of action in his reasons for decision. In Briggs v Lunt [No 3] [2011] WASCA 44, a similar point arose. There, the issue concerned a pleaded limitation defence and material facts pleaded in reply to that defence. Although pleaded, there were no submissions made to the trial judge in that case about the limitation defence and, in consequence, the trial judge made the assumption that he did not have to deal with the limitation defence and related pleadings in reply. That was held to be an error: see [117].
However, the error will not avail the appellants unless they can show that the case of nuisance would, or may have succeeded.
Whether s 5B applies to claims in nuisance
The respondents argue that 'the appellants cannot avoid the application of the CLA by attempting to claim damages for alleged nuisance'. The respondents argue that the provisions of s 5B must be considered, as must the provisions of s 5W and s 5X. This submission is based on the following propositions:
(a)the tort of nuisance is becoming subsumed into the tort of negligence. Reference was made to non‑binding statements to that effect in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55 [29], [31]; Network Rail Infrastructure Ltd v CJ Morris (t/as Soundstar Studio) [2004] EWCA Civ 172 [31] ‑ [38]; Clambake Pty Ltd v Tipperary Projects Pty Ltd [No 3] [2009] WASC 52 [708];
(b)even if the tort of nuisance has not now been subsumed into the tort of negligence, then in the case of an allegation of nuisance against a statutory authority which, in its defence, claims that it was acting in accordance with a statutory scheme, there can be no liability if the authority proves that the nuisance was not the result of negligence on its part: Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 [16], [51]; Benning v Wong (308 ‑ 309)
(c)the CLA applies to causes of action in nuisance because s 5A(2) of the CLA provides that pt 1A extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or 'any other action'. The respondents submit that the use of the word 'fault' in s 5B(1) instead of 'negligence' ensures that the provision applies to liability in tort not based on negligence: Department of Housing and Works v Smith [No 2] [78] (Buss JA);
(d)debate during the second reading of the Civil Liability Amendment Bill 2003 (WA) makes it clear that Parliament's intention was to extend the application of the CLA beyond the area of negligence for personal injury: Hansard 8 May 2003, 7,353 ‑ 7,354. The Explanatory Memorandum to the Bill, at cl 5A, states that the proposed pt 1A will apply to 'any claim for personal injury damages whether arising at common law, contract or an action based on a breach of statutory duty (except as provided in s 3A)'. The respondents submit that this should not be seen as otherwise limiting the clear words of the provision or of s 5V(2) and s 5X.
As a result of the above points, the respondents submit that the CLA extends to a claim for damages for nuisance.
As mentioned earlier, fault is not defined in the CLA. It is not defined in the Interpretation Act 1984 (WA). There seems no doubt that the word 'fault' was used, rather than the word 'negligence', because the latter word may have suggested only negligence in tort. However, the balancing exercise which has to be carried out under s 5B makes it clear that the Act is concerned with fault following a failure to take reasonable precautions against a risk of harm. Causes of action in contract or breach of statutory duty may involve an allegation of a failure to take reasonable precautions against a risk of harm.
An action in nuisance does not involve a failure to exercise reasonable care. Nuisance is a cause of action directed at the harm caused, rather than the conduct causing it. Because proof of nuisance does not involve a failure to exercise reasonable care, the CLA does not apply to a cause of action in nuisance.
However, if nuisance is established, the statutory authority may escape liability if it is able to establish that it exercised reasonable care. The 'Shirt calculus' would be applied in determining whether there had been negligence, and as stated above, that will be an exercise similar to the exercise carried out by weighing the competing considerations listed in s 5B, but that does not establish that the CLA applies to a cause of action in negligence.
Could the cause of action in nuisance have succeeded?
If (contrary to my conclusion) the Act does apply, then for the reasons that I have given earlier, the second respondent would still be found liable because of the breach of the non‑delegable duty to ensure that CALM employees took reasonable care.
The cases of Manchester Corporation v Farnworth [1930] AC 171 and Edwards v Blue Mountains City Council [1961] NSWR 803; (1961) 78 WN (NSW) 864 suggest that the respondents escape liability if damage was an 'inevitable consequence' of performing the statutory power to conduct the prescribed burn: see also Fleming, JG, The Law of Torts (10th ed) 515 ‑ 517. In Manchester Corporation v Farnworth a farmer took action against the Manchester Corporation for damages on the ground of nuisance as the result of the emission of poisonous fumes from the chimneys of an electrical generating station. The defendant submitted that the generation of electricity pursuant to statutory authority inevitably meant that noxious fumes would be generated. The court held it was not inevitable; the fumes were omitted merely because of the way the operators chose to work the station. The noxious fumes were generated because it was not economically worthwhile recovering the sulphur which went up the chimneys and caused the damage to the plaintiff's property.
In this case, damage from smoke was not inevitable in the sense that damage would necessarily occur when a prescribed burn was carried out. It depended upon which way the winds blew and whether or not the atmospheric conditions settled the smoke on the appellants' vineyards or carried it quickly away. If reasonable care had been taken by CALM, the expectation was that there would be no damage. Reasonable care was not taken. The defence to the claim in nuisance was not made out and if the trial judge had dealt with the issue, that is the conclusion he must have reached.
Conclusion
The appeal should be allowed, the judgment of the trial judge should be set aside and in lieu there should be judgment for the appellants for $620,000 against the second respondent. The judgment dismissing the claim against the first respondent should not be disturbed.
BUSS JA: I agree with McLure P that each of the appeal and the notice of contention should be dismissed.
Subject to one qualification, I agree with McLure P's reasons. The qualification is that, as her Honour mentions, it is unnecessary to determine whether the Civil Liability Act 2002 (WA) applies to a nuisance claim against a statutory authority. I prefer not to express a preliminary view on that issue.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (S)
CORAM: McLURE P
PULLIN JA
BUSS JA
HEARD: 1 & 2 NOVEMBER 2011
DELIVERED : 4 APRIL 2012
SUPPLEMENTARY
DECISION :8 MAY 2012
FILE NO/S: CACV 29 of 2010
BETWEEN: SOUTHERN PROPERTIES (WA) PTY LTD
OLD VASSE VINEYARD PTY LTD
BARWICK ESTATE VINEYARD PTY LTD
First AppellantsSOUTHERN PROPERTIES SYNDICATE
OLD VASSE SYNDICATE
Second AppellantsAND
EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
First RespondentTHE STATE OF WESTERN AUSTRALIA
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURPHY J
Citation :SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [No 2] [2010] WASC 45
File No :CIV 1065 of 2005
Catchwords:
Costs - Application to remove limits on costs fixed in costs determination - Turns on own facts
Legislation:
Legal Profession Act 2008 (WA), s 280(2)(c)
Result:
Application granted
Category: B
Representation:
Counsel:
First Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
Second Appellants : Mr M M Mony De Kerloy & Mr P J Hannan
First Respondent : Mr R M Mitchell SC & Mr B P King
Second Respondent : Mr R M Mitchell SC & Mr B P King
Solicitors:
First Appellants : Mony de Kerloy
Second Appellants : Mony de Kerloy
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Le Brun v Joseph [No 2] [2010] WASCA 52(S)
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
JUDGMENT OF THE COURT: On 4 April 2012 this court ordered that the appeal be dismissed and that the appellants pay the respondents' costs of the appeal to be taxed if not agreed. The respondents also applied for an order that:
The limits contained in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 for Item 23 of the Table to clause 11 be removed.
The appellants opposed the application. Orders were made for the filing of written submissions and evidence on the issue and for the application to be determined on the papers.
Special costs orders may be made under s 280(2) of the Legal Profession Act 2008 (WA) which relevantly provides:
[I]f a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following ‑
…
(c)remove limits on costs fixed in the determination.
Such an application involves two questions: first, whether it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant legal costs determination; and secondly, whether the inadequacy of the amount allowable under the relevant legal costs determination arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S), approved in Le Brun v Joseph [No 2] [2010] WASCA 52(S) [6]. We are satisfied that the requirements of s 280(2) are met in this case.
The issues raised in the appeal are of very significant public interest and importance in this State. The scope and content of the duty of care of a public authority is a complex issue, as reflected in the binding authorities on the subject: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 [91]. The issue of nuisance was addressed for the first time in the appeal, due in part to confusion generated by those conducting the appellants' case at trial, and raised novel matters of law. There was also an unusually long and difficult pre‑hearing conferral process on the issue of whether the appellants alleged any error of fact. The matter was eventually resolved by consent, which resolution resulted in a substitution of the appellants' and respondents' cases. Finally, there is evidence before the court that, based on a broad time based estimate, the costs incurred by or for the respondents very significantly exceed the limits under the costs determination in respect of Item 23.
There is no proper basis for the order sought by the appellants that the respondents pay the appellants' costs of the appearance for judgment delivery on 4 April 2012 and the costs of the appellants' written submissions opposing the special costs order. The court ordered written submissions because not all members of the coram who sat on the appeal were present at judgment delivery and a differently constituted coram was sitting to hear other appeals.
We would order that:
The limits contained in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 for Item 23 of the Table to cl 11 be removed.
37
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