Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] - [2010] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [No 2] [2010] WASC 45

CORAM: MURPHY J

HEARD: 31 AUGUST - 11 & 16 SEPTEMBER 2009

DELIVERED : 12 MARCH 2010

FILE NO/S: CIV 1065 of 2005

BETWEEN: SOUTHERN PROPERTIES (WA) PTY LTD (ACN 078 766 659)
OLD VASSE VINEYARD PTY LTD (ACN 086 775 475)
BARWICK ESTATE VINEYARD PTY LTD (ACN 008 749 273)
First Plaintiffs
SOUTHERN PROPERTIES SYNDICATE
OLD VASSE SYNDICATE
Second Plaintiffs
AND
EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
First Defendant
STATE OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Torts - Negligence - Duty of care - Public authority - Conflicting statutory powers and duties - Prescribed burning

Torts - Negligence - Breach of duty - Civil Liability Act 2002 (WA) s 5B, s 5W, s 5X

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5U, s 5W, s 5X
Conservation and Land Management Act 1984 (WA), s 3, s 5, s 6, s 7, s 18, s 19, s 32, s 33, s 33A, s 34, s34A, s 34B, s 36, s 38, s 60, s 132
Crown Suits Act 1947 (WA), s 3
Public Sector Management Act 1994 (WA), s 29, s 64

Result:

Action dismissed

Category: A

Representation:

Counsel:

First Plaintiffs               :     Mr R I Viner QC & Ms N E Robinson
Second Plaintiffs           :     Mr R I Viner QC & Ms N E Robinson
First Defendant             :     Mr B P King & Mr A Shuy
Second Defendant         :     Mr B P King & Mr A Shuy

Solicitors:

First Plaintiffs               :     Mony de Kerloy
Second Plaintiffs           :     Mony de Kerloy
First Defendant             :     State Solicitor's Office
Second Defendant         :     State Solicitor's Office

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 260 ALR 628
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Bell v The State of Western Australia [2004] WASCA 205
Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation & Land Management (1997) 18 WAR 126
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
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Hunter Area Heath Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
Maloney v Commissioner for Railways (NSW) (1998) 52 ALJR 292
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Nada v Knight (1990) Aust Tort Rep 81-032
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Penrith Rugby League Club Ltd (t/as Cardiff Panthers) v Elliott [2009] NSWCA 247
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

Introduction
The plaintiffs' land and vineyards, and the previous occasion of smoke taint in 2001
The Warren Region and the land subject to prescribed burn DPHB8
Karri forest
Vegetation on DPHB8
Fire behaviour and fuel management - overview
Sources and conditions for fire, especially fire in south‑west Western Australia
Burning - smoke
Prescribed burns - purpose and objectives
History and policy of prescribed burning in the south-west of Western Australia
The Department's planning and processes for prescribed burning
Smoke taint of grapes
DPHB8 within the burn programme - up to 30 March 2004
The burning of DPHB8
The window of opportunity for prescribed burning in the Warren Region
Window of opportunity for burning DPHB8
The defendants, the statutory scheme, and the responsibility for the DPHB8 land
The Department's decision to carry out the burn on 31 March 2004 and not to defer the burn of DPHB8
The plaintiffs' case, and preliminary observations on it
Principles in relation to, and findings on, duty of care
Principles and findings on breach of duty
Section 132 of the CALM Act

Conclusion

MURPHY J:

Introduction

Each of the first plaintiffs is the registered proprietor of a parcel of land near Pemberton in the south‑west region of Western Australia. The parcels of land share common boundaries. The second plaintiffs are lessees of the land owned by the plaintiffs. The land contains vineyards. The parties in these proceedings did not seek to draw any distinction between the first and second plaintiffs, and referred to the vineyards in question as, collectively, the plaintiffs' vineyards, and the land as the plaintiffs' land. The land is used for the cultivation of grapes for use in wine. The vineyards on the land are only used for grape production; there is no wine producing facility there.
The plaintiffs claim that the defendants were negligent in 2004 in conducting a prescribed burn on Crown land, which abutted the vineyards. It is alleged that the prescribed burn caused smoke taint to grapes, which rendered the grapes unfit for wine making, thereby resulting in the plaintiffs suffering economic loss. The burn in question was conducted by the Department of Conservation and Land Management (the Department) and was known as Donnelly Pemberton Hand Burn 8 (DPHB8). The ignition was carried out on 31 March 2004 and 1 April 2004.
It is common ground that the grapes on the plaintiffs' land were tainted by smoke emitted by the burn. At trial the defendants admitted that the plaintiffs' grapes were damaged by smoke and that the second defendant caused the smoke to enter the plaintiffs' property. Both counsel agreed that causation was not in issue. The parties also agreed the quantum of damages.
The issues at trial were whether the defendants owed a duty of care to the plaintiffs, and if a duty existed, whether it had been breached, and whether, in any event, the defendants had the benefit of statutory immunity from liability under s 132 of the Conservation and Land Management Act 1984 (WA) (CALM Act).
By way of general comment on the evidence, there were many witnesses called in this case. I was satisfied that they were all telling the truth to the best of their recollection. In the end, most of the facts were largely not in dispute. Where it seemed to me that there were any material differences in the evidence of the witnesses, I have noted the differences, and made findings accordingly.

The plaintiffs' land and vineyards, and the previous occasion of smoke taint in 2001

The first plaintiffs first acquired the land in 1998. Along the whole of the eastern border of the land is State forest. Along the whole of the land's southern border and along nearly half of its western border, lies Warren National Park. In general terms, it is bounded to the east, south and west by National Park or State forest.
Vines of a number of grape varieties were planted on the land in 1999 and 2000.
Grapes are generally harvested from the vineyards between March and May of each year. The precise timing depends upon a number of variables including the weather and the particular variety of grape. In 2004, certain varieties of the plaintiffs' grapes had been harvested by 31 March; other varieties were in harvest or still to be harvested. Harvest was not complete until 6 May 2004.
Prior to harvest, the grapes go through a developmental stage known as veraison. Veraison was described by Associate Professor Gibberd, the Chair of Viticulture and Oenology with Curtin University, as 'a key developmental stage for grapes and is associated with a switch from berry cell development to sugar accumulation and cell expansion'.
The plaintiffs led evidence by Mr Muller as to the commencement of veraison, the start of harvest and the finish of harvest for the plaintiffs' grapes in the period 2001 ‑ 2007. He said:
Growers have reported damage to wine grapes from smoke and ash. The most critical periods are reported to be between the start of veraison and the finish of the harvest period. The start and end of these periods varies from year to year according to seasonal conditions. Dates were provided for the period 2001 ‑ 2007 were [sic]:

Vintage Start of Veraison Start of Harvest Finish of Harvest

2001 01-Jan-01 28-Feb-01 20-Apr-01

2002 01-Feb-02 14-Apr-02 09-May-02

2003 14-Jan-03 19-Mar-03 15-Apr-03

2004 14-Jan-04 20-Mar-04 06-May-04

2005 12-Jan-05 12-Mar-05 23-Apr-05

2006 24-Jan-06 25-Mar-06 28-Apr-06

2007 01-Jan-07 24-Feb-07 31-Mar-07

In the period 1998 to late 2004, the vineyards were developed and managed by a firm called Albert Haak & Associates; Mr Campbell‑Clause was a partner of that firm. Prior to 24 February 2004, Mr Murray Pearse was employed by Albert Haak & Associates as the vineyard manager. Mr Paul Love held that post on an interim basis between 24 and 28 February 2004. On 1 March 2004, Albert Haak & Associates employed Mr Mike Barry as the vineyard manager.
The first vintage was in 2001. The grapes harvested in early 2001 were sold to Palandri Wines. In January 2001 there had been a prescribed burn in the State Forest to the east of the plaintiffs' land. The plaintiffs' vineyards were covered with smoke. In August 2001 the Palandri winemaker complained that the plaintiffs' grapes had been tainted. Later that year, the wine produced from the plaintiffs' grapes was thrown away by Palandri because of the taint. As a consequence, it was around this time that Mr Campbell‑Clause, the partner of Albert Haak & Associates responsible for the management of the vineyard, first thought that there was a connection between the burn carried out in January 2001, and the quality of the grapes supplied to Palandri.
Mr Pearse, the plaintiffs' then vineyard manager, called the Department's office in early 2002 and expressed concerns about smoke and ash entering the plaintiffs' vineyards.
By letter dated 18 February 2002, Mr Pearse wrote to Mr Gillard of the Department. He referred to the damage to the plaintiffs' 2001 vintage and said that whilst he wanted a prescribed burn in the area of DPHB8 to be done, he did not want it to be done until the plaintiffs' fruit was harvested. He also said that he believed that further research was required to determine when it was safe to burn during grape growing.
In 2002 or 2003, Mr Banfield, representing the plaintiffs, visited the Department's Manjimup office and relayed concerns which he had about smoke from the burn in 2001 affecting the plaintiffs' vintage that year.
There were further communications between the plaintiffs and the Department on the topic of smoke taint to which I refer later in these reasons.

The Warren Region and the land subject to prescribed burn DPHB8

There are 926,604 hectares (ha) of National Parks, State Forest, Conservation Reserves and unallocated Crown lands managed by the Department in the Warren Region
The Warren Region is in the south‑west of Western Australia and includes the towns of Manjimup, Pemberton and Northcliffe.
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 (Mr Sneeuwjagt ts 911 ‑ 912, exhibit 33B).
The Warren National Park, south‑west of Pemberton, is a large national park. It 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.
The land comprising the burn area was a portion of the Warren National Park comprising 560 ha. The burn area was to the north of Old Vasse Road, and was located about 8 km south‑west of Pemberton. The perimeter of the area measured about 12 km. To the north there was private property, including the plaintiffs' land, and an area of State Forest. The Warren National Park extended to the south.
The area to the east and to the west was surrounded by private property, with a number of dwellings close to the western boundary.
The area of the burn contained a substantial amount of karri forest.
The Warren Region, as a whole, is regularly referred to as the karri forest of the State. Within the region, there is more karri forest around Pemberton than around Manjimup. Manjimup has a lot more jarrah forest, according to Mr Muller (ts 334).

Karri forest

Karri forest is specific to south‑west Western Australia according to Mr Packham, a senior research fellow in the School of Geography and Environmental Sciences, Monash University.
Mr Packham quoted the following passage from Griffiths T, Forests of Ash: An Environmental History (2001):
The karri and the mountain ash are unique. Elsewhere in the world there are tall, monospecific temperate forests at similar latitudes and environments - such as the redwood forests of northern California, the kauri and podocarp forests of New Zealand, and the aracarian forests of Chile - but these are all gymnosperms, whereas the karri and mountain ash are angiosperms, flowering plants, and the tallest in the world.
The karri forest is a dense, wet forest with deep litter which dries out very slowly compared with other forest types such as jarrah/wandoo, which dry out more rapidly.
The nature, density and height of the understorey of a forest will have a significant impact on the rate and spread of fire through the forest. The nature and density of the overstorey canopy is also significant. Dr McCaw, Principal Research Scientist, Science Division of the Department of Environment and Conservation, gave evidence on these matters to the following effect.
He said that karri forest has both a dense overstorey canopy, and a dense understorey shrub layer. Litter fuels are therefore slow to dry compared with more open forest types.
Attempting to burn karri forest too early in the season can result in partial combustion of the surface fuel layer, which is both ineffective for fuel reduction and poses a risk for re‑ignition later in the summer under hot dry conditions.
There are three common structural types of karri forest understorey:
•karri types 3 and 6 (K3 and K6) - up to 3.5 m tall, of moderate density, and typical of areas at the margins of the karri forest where jarrah, marri and blackbutt may also occur;
•karri types 4 and 5 (K4 and K5) - up to 5.5 m tall, of moderate density, and typical of upland forest in the main belt of karri occurrence;
•karri types 1 and 2 (K1 and K2) - up to 7 m tall, very dense, and often associated with stream‑zones and sheltered southern slopes in the main karri belt.
It was common ground amongst the experts that karri forest understorey types 1 and 2 create the densest and wettest karri forest environment. This means they dry out the most slowly and have the fewest number of days available for effective burning in any calendar year (discussed further in [326] ‑ [328], [340] ‑ [341], [344] ‑ [346], [362] below).

Vegetation on DPHB8

There was some contention at trial as to whether the understorey on the burn area for DPHB8 was predominantly K1 and K2, or the more moderately dense K4 and K5 type.
The Department prepares and maintains records, known as 'Fuel Assessment Records', in relation to the type and characteristics of the vegetation of an area of land to be burned as part of the prescribed burning programme. The Fuel Assessment Records record, inter alia, the litter depth, the type of trees, the type of understorey or scrub, and the height and density of the understorey or scrub. The information is collated with respect to 'sample lines', which are lines of 100 m in length in selected parts of the burn area, along which samples are assessed at every 10 m.
The Fuel Assessment Records also contain 'recommended wind ratios'. A wind ratio is the ratio of wind speed of the open wind at canopy level, compared with the wind speed at ground level. The more dense the understorey, the lower the wind speed at ground level and, correspondingly, the higher the wind ratio. A wind ratio of 9:1 is very high.
The Fuel Assessment Records for DPHB8 record information taken from sample lines at the four corners of the burn area.
In three out of the four sample lines, the forest was described as karri, and the understorey types were shown as K1 or K2. In these areas, the understorey was also tall, and was recorded as ranging from 6 m to 10 m. In the fourth sample line, the vegetation was recorded as blackbutt and teatree, the scrub type was shown as K3 and it was recorded as being 3 m high. In that area, and in the north‑west corner where the scrub type was K1, the Fuel Assessment Records noted the presence of 'very volatile fuels'.
In the three sample lines of K1 or K2 understorey, the recommended wind ratio was 9:1.
A map of the area (TB 2976) was in evidence, upon which the sample lines were noted. The map showed that large areas of the burn area were designated 'KMA' which means predominantly karri, with some marri. Another record showed that 70% of the burn area was karri forest.
The burn area for DPHB8 also had a significant gully system, described by Mr Muller, the plaintiffs' expert, as running along the middle of the burn block on an east‑west axis from the eastern boundary, across to the middle and then extending to the northern section of the burn area and also extending to the southern section on the south‑west side of the burn area. Karri 1 and 2 understorey is generally found in such gully systems.
Mr Walker, whose evidence on this point I accept, said that the Fuel Assessment Records for DPHB8 show that the burn area contained predominantly K1 and K2 understorey. Mr Sneeuwjagt gave evidence to the same effect, and although he was cross‑examined on the sample lines referred to in the Fuel Assessment Records, his evidence that the area comprised predominantly K1 and K2 was not challenged.
The plaintiffs' expert, Mr Muller, also said that the burn prescription (reference to which is made later in these reasons) shows that a significant portion of the burn area was K1 and K2.
The plaintiffs' other expert, Dr Tolhurst, said that whilst there was some indication in the evidence which raised a doubt in his mind as to the fuel types on DPHB8, he regarded the compelling argument, to some extent, as being the wind reduction factor, which had a ratio of 9:1. He said that this was appropriate for K1 and K2 understorey.
One witness, on the other hand, Mr Simmonds (of the Department), said that the block contained predominantly K4 and K5 understorey with K1 and K2 located in the gully systems. In relation to that evidence, he said that he knew that that was the vegetation on the block from his experience, but he had not carried out an assessment of the area. He also said that prior to the burn, he and Mr Keppel (of the Department) had driven around the boundary of the burn area. In cross‑examination, he also accepted a proposition that another document, prepared by Mr Marshall of the Department (who passed away before these proceedings commenced), contained information consistent with K4 and K5 being the predominant understorey.

I do not accept Mr Simmonds' evidence on the question of the predominant type of understorey vegetation on the DPHB8 block. I think he is probably mistaken. His evidence is inconsistent with the Department's records (Fuel Assessment Records) prepared for the purpose of recording such information. It was, moreover, given without reference to such records, and it is inconsistent with the evidence of Mr Walker and Mr Sneeuwjagt, and indeed the evidence of the plaintiffs' witnesses, to which I have referred above. I place no weight on his concession with respect to Mr Marshall's document, as it was prefaced with the statement that he could not say what Mr Marshall had intended by it. It is also inherently unlikely to be a correct characterisation of the document because Mr Marshall prepared the Fuel Assessment records and the burn prescription, which indicate that K1 and K2 are the predominant understorey.
Mr Simmonds' evidence is also inconsistent with the evidence of Mr Keppel, who was Mr Simmonds' superior officer, and who accompanied Mr Simmonds on his inspection of the boundary. Mr Keppel was a careful and thoughtful witness. He said in evidence‑in‑chief that from the inspection undertaken, he had formed the view that the area involved primarily K1 and K2 understorey, with parts of K4 and K5, and some lighter forest, including blackbutt. His evidence on this was not challenged in cross‑examination. I prefer his evidence to Mr Simmonds' on this.
Accordingly, I find that the burn area for DPHB8 contained predominantly K1 and K2 understorey.

Fire behaviour and fuel management - overview

Mr Cheney's evidence, which I accept in these matters, was to the following effect.
Fire behaviour encompasses the way a fire ignites, builds up or grows; its rate of spread; the characteristics of the flame front; and all other phenomena associated with the moving fire front. Most of the research into fire behaviour has focused on the prediction of fire rate of spread, the dimension of the flames and the likelihood of firebrands being thrown ahead of the fire to start new fires.
It has not been possible to apply traditional physical theory to the prediction of fire spread, because fire is a chaotic chemical reaction that moves through a fuel bed that varies spatially in three dimensions, across a variable topography and interacts with a turbulent atmosphere (principally the wind) that varies widely both in space and time. Prediction of fire behaviour at any specific point in space or time can have a wide margin of error because it is difficult to predict the fuel that will be consumed, and the direction and the speed of the wind at that point.
However, as fire builds up from ignition it reaches a quasi‑steady rate of spread that can be correlated to some mean value or characteristics of the fuel and the mean wind speed measured at a standard location. The error in prediction is reduced by selecting a suitable period of time, often 30 minutes or more, to encompass the inherent variation in wind and fuel.
The key factors that influence how fire spreads are the fuel characteristics, the moisture content of the dead fuel, the slope of the ground, and the wind speed and its orientation to the fire. Mostly, predictions are made for the fastest spreading part of the fire called the head fire.
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 and debris on the forest floor. Good conditions for forest growth provide ample quantities of leaf bark and twig material to accrete each year. Low temperatures, when the litter is wet in winter and spring, and dry conditions when the litter is warm in summer and autumn, mean that decay rates are slow. As a result, the accumulation of litter on the forest floor can continue for more than 20 years before accretion and decay come to equilibrium.
This litter provides the fuel for forest fires. Ignitions from lightning and anthropogenic sources have been present for a very long time and fire has been an integral part of the ecology of the south‑west forests. However, the reduction of anthropogenic ignition and the suppression of fires when conditions are mild have resulted in a general increase in fuel load throughout the forest. When heavy fuel is combined with strong, hot, dry wind, 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. Fire is an integral part of the environment but it needs to be managed to reduce the impact of damaging fires, both within the forest and within the wider community.
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 eucalypt forests is always supported by an intense fire‑burning surface fuel. In essence, if there is no surface fuel, there is no fire.
The aim of fuel management is to alter the structure of the fuel bed and the load of the available fuel to make fire fighting safer and easier. The cheapest and most ecologically sound way to do this is by prescribed burning.
The rate of fire spread is directly proportional to the height and amount of the loosely compacted material on the forest floor. Reducing the surface fuel reduces the rate of spread. This reduction diminishes as fuel accumulates, but there will be some reduction in spread for up to 15 years after a prescribed burn.
Reducing the fuel load reduces both the rate of spread and the fire intensity.
Fire suppression is itself a hazardous and dangerous activity to those called upon to undertake it on behalf of the community. Hazard reduction by planned burning assists fire suppression in a number of ways. These include:
•Reducing the speed of growth of the fire from its ignition point. All fires take time to build up to their potential rate of spread which is reached when the width of the head fire is in excess of 300 m. Fire in light fuel is frequently checked by bare areas and this tends to keep the fire narrow and spreading below its potential rate.
•Reducing the height of flames and the heat radiated from the flames. The amount of heat radiated depends on the total volume of flame. Flame height is determined by rate of spread and the height of understorey shrubs and the volume is affected by the total fuel load. Fire in light fuels will have smaller and thinner flames and will have a lower effective temperature. This means that less heat is radiated from the flame and fire‑fighters can work closer to the fire edge and for longer periods without suffering heat stress.
•Increasing the visual range in the forest. Reducing the height of shrubs allows fire‑fighters greater visibility through the forest. This allows them to observe changes in fire behaviour earlier and makes fire‑fighting safer.
•Reducing the potential for spot fires. Burning is the only practical way of reducing the flammability of fibrous‑barked trees.
For prescribed burning to be really 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.

Sources and conditions for fire, especially fire in south‑west Western Australia

The following findings are derived principally from the Department's publication entitled 'Fire management on CALM lands in the south‑west of Western Australia', October 2000.

Sources of fire

There are two primary sources of ignition for bushfires - lightning and humans. Both sources have been features of the West Australian landscape for thousands of years. In the period 1989 ‑ 1990 to 1998 ‑ 1999, lightning accounted for between 9% ‑ 13% of wildfires, although in 1991 ‑ 1992 its incidence reached 26%.
Lightning is usually associated with thunderstorms, and these occur in every month of the year in the south‑west. Most frequently they occur in winter, but they occur with most devastating effect in the summer. As soon as fuels on the forest floor begin to dry out as spring progresses, the chance of bushfires starting from dry lightning strikes rises.
Although the frequency of lightning‑caused fires varies from year to year, on average, about 35 bushfires are caused by lightning in south Western Australian forests every summer.
Humans are responsible for in the order of 90% of all fires in Western Australia. Some fires are accidental (escapes from prescribed burning, camp fires etc) but most are deliberately lit. In recent years, arson has been the most rapidly increasing source of fire in Western Australia, as it is world‑wide. Deliberate fire lighting frequently occurs under severe fire weather conditions, and arsonists often select the most difficult areas in which to operate.

Fuels

The amount and rate of heat release, or the intensity of a fire, is an indicator of its damage potential and suppression difficulty. Fuel, consisting of ground litter, twigs, bark, sticks and live and dead vegetation, is the energy source of a bushfire. The amount, or tonnage, of fuel consumed and the rate of combustion directly affect the intensity of the fire. The greater the tonnage of fuel and the higher the rate at which it burns, the more intense the fire will be.
Bushland in south‑west Western Australia has three important characteristics in relation to its capacity to fuel a fire:
•The vegetation itself is highly flammable. Leaves of most common species of trees and shrubs contain waxes and volatile oils which ignite easily and burn fiercely. As shrubs age, a greater proportion of the foliage dies and comes to consist of flammable, aerated fuel.
•Fine, flammable dry matter, such as leaves, twigs and bark, (collectively known as 'litter') is constantly shed from living plants and accumulates over time. In the absence of fire, forest floor litter continues to accumulate.
•Many tree species (eg, jarrah, marri, tingle, blackbutt) 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 'hopovers' are very common features of West Australian forest fires, and are nearly always associated with heavy, dry fuels. They can extend substantial distances from the main fire edge, rendering useless narrow firebreaks, buffers or control lines.

Types of fire

The vegetation and litter in a forest becomes fuel when ignited. This fuel can burn in three different ways. One is a mild creeping fire, where the flames are confined to the dry leaves and twigs lying on the forest floor and to ephemeral grasses. The second is a more intense fire with flames up to 8 m in height, which will consume the ground litter and the shrub layer and mildly scorch the tree canopy. The third is a high intensity fire which 'crowns' - ie, the fire leaps into the upper branches of the tall trees, and flames can be up to 100 m in height.
A crown fire consumes all green and dry leaves in the tree and shrub layers and the litter, leaving only the large woody trunks standing. Under the same weather conditions, the higher the levels of fuel, the more intense the fire and the greater the likelihood of a fire moving from a creeping ground fire to a crown fire.
Crown fires in tall forest country cannot be directly dealt with using current technology.
There are also 'hop‑over' or spotting fires, in which burning material from, eg, a prescribed burn, is carried into another area and acts as a firebrand, starting a new fire outside the main area. Even under mild prescribed burning conditions, the embers can travel a few hundred metres and start a hop‑over fire. Under extreme conditions, they can travel 20 ‑ 30 km.

Fire weather

The south‑west fire season is hot, dry and windy. Some summers are hotter and drier than others, but in each summer hot, dry conditions occur. Similarly, the onset of the winter rains in about May, which occur every year, signal the end of the fire season for several months.
Unlike the south‑east of Australia (Victoria and Tasmania) which experience occasional drought, leading to severe summer bushfire problems, the south‑west of Western Australia experiences, in effect, a form of drought every summer.
There are a number of consistent features of the weather which operate during the south‑western fire season, including:
•The regular passage of a series of high pressure systems from west to east across the southern half of the continent. These generate several‑day cycles of increasingly hotter weather, with dry continental easterly winds backing into the north and north‑west; after a few days these conditions are terminated by a cold front bringing a cool change, and south‑westerly and south‑easterly winds, and the cycle recommences. This feature is further discussed in the section dealing with the west coast trough (below).
•Thunderstorms occur regularly in the south‑west region during the summer months. These frequently generate lightning which starts fires in bush lands and forests. Apart from occasional rain from thunderstorms or light showers associated with a cool change, the summers in the forest areas are generally without rain Lightning has been the source of some of the most destructive fires which have occurred in Western Australian forests, including the worst fires in 1961.
•The vegetation, fallen timber, and the upper soil layers of the bush all progressively dry out as spring and summer progress, culminating at a point in autumn before the first rains. This drought (or cumulative fuel dryness) factor significantly affects fire behaviour - the drier the fuels the more easily they ignite and the more intensely they burn. This factor also affects the difficulty of fire suppression, and overlays the day‑to‑day factors relevant to fire suppression such as temperature, wind speed and relative humidity.

The west coast trough

A number of witnesses gave evidence about the effect of a low pressure trough on the western coast of Australia. A report by Mr Reader of the Bureau of Meteorology was also tendered by the defendants by consent (Mr Reader was not required to attend for cross‑examination). In his report, Mr Reader described a typical summer cycle of weather involving a low pressure trough, which was referred to by the other witnesses as the 'west coast trough', as follows. A low pressure trough forms over western parts of the State. At the start of the cycle the low pressure trough is pushed eastwards by a new high pressure ridge which forms off the coast. After the high pressure ridge has moved inland and displaced the trough to the east, a new low pressure trough forms or deepens along the coast of Western Australia over the next couple of days. Then, the trough moves eastward again ahead of a new high pressure ridge to complete the sequence. The cycle can take between three to seven days for the sequence to be repeated.
A number of witnesses described the winds associated with the west coast trough and their impact on prescribed burning programmes. I found Dr McCaw's evidence lucid and clear. He said that as the high pressure system becomes established in the Great Australian Bight, easterly winds direct dry continental air across the south‑west of the State, resulting in progressively higher temperatures over the course of several days. With the formation of a trough down the west coast, the winds shift to the north‑east and air temperatures continue to increase. Once winds reach the north‑east quadrant, then a change to north‑west winds can typically be expected within the next 24 hours.
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.
There is a well‑recognised association between northerly winds and dangerous fire conditions. The strong connection between northerly winds and elevated levels of fire danger has been recognised since at least 1938. Recent examples of major bushfires associated with northerly winds include the Dwellingup fire of 3 February 2007, the Bridgetown and Tenterden fires on 27 December 2003, and the Mount Barker fire of 28 December 2000.
Northerly winds can result in extreme fire danger well into the autumn. For example, on 23 March 2005, very hot, dry conditions caused a fire north of Manjimup to burn with unusual severity. A notable feature of that day was the very low relative humidity (<10%) caused by subsidence of dry air from aloft. Subsiding dry air masses have been linked to major bushfires elsewhere in Australia, including the Canberra fire of January 2003.
Undertaking prescribed burning on northerly winds in the south‑west increases the likelihood of a fire burning with an intensity sufficient to cause crown scorch, canopy defoliation and extensive spotting.
Given the well‑recognised association between northerly winds and dangerous fire weather conditions, and the fact that the transition from north‑east to north‑west winds 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.
Dr McCaw also said, in evidence‑in‑chief, in relation to the weather forecasts concerning the speed of the migration of the west coast trough:
---I think once the trough starts to move then the forecasts are reasonably reliable but picking the timing of when the trough will begin its movement is quite difficult and uncertain ...
The north‑easterly winds are usually associated with a deepening of the trough and that once the wind moves into the north east it rarely stays there for more than a day and sometimes it might be for a much shorter period. It might move from the north‑east around to the north and the north‑west within a single day.
And you're saying that is difficult to predict?‑‑‑Yes.
To similar effect, was Mr Muller's evidence in cross‑examination.
---Northerly winds are less predictable and they have been associated with some fairly severe unforecast winds.
KING, MR: Yes?‑‑‑And conditions are generally less stable.
…
And the movement of that trough can be very quick or it can be slow?‑‑‑Yes.
It's not possible really to predict with any certainty how fast that trough is likely to go at any particular time it's there?‑‑‑That's correct.
That is one of the reasons why northerly winds can be unpredictable?‑‑‑The trough can move in and out and you can have strong northerly winds persisting for a number of days.
Similarly, Mr Maher of the Department said:
You're going from what to northerly?‑‑‑From east to north. It usually goes through the north‑east to the [north]‑west. When that trough develops down the west coast that's a very, very unstable weather pattern. Those charts that you see, I think the met bureau report was accepted yesterday, they are pressure charts. What it's showing is low pressure. Usually there is no inversion layer associated with that trough, okay. While the south‑easterly, while the easterly, the high pressure system is there you've got an inversion layer that sits somewhere between three and 5000 feet which essentially keeps a lid on the atmospherics and it's a very stable condition for prescribed burning. Once we get into that west coast trough environment it's very unstable.
Yes?‑‑‑And you can get some interesting fire behaviour, severe fire behaviour just created by the atmospherics without even getting very strong wind under those conditions.

Burning - smoke

Edge burning and core ignition

Mr Sneeuwjagt, whose evidence I accept on these matters, said that undertaking a burn usually requires several days for a simple burn and up to several weeks where a large burn contains several different fuel types that dry out at different rates.
The DPHB8 prescribed burn involved two days to light up. Several days thereafter are generally allowed for such burns in mopping up and patrolling the boundaries.
The burn of the edges of the area to be burned is done by hand. The burning of the remaining bulk of the area is called 'core ignition', which may be done by hand, if the area is small enough, or, in larger areas, may be done by helicopter or plane.
The edging burn and the core ignition for DPHB8 had to be done on separate days for the burn to be done safely. The DPHB8 core ignition was done by helicopter.
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 at least 100 m was prescribed by the burn prescription.

Smoke

The edging burn and the core ignition create different levels of smoke. Mr Sneeuwjagt said, and I accept:
An edging … is a burn that is done against the wind. It's really a backfire that is moving backwards at about 10, 15 metres per hour very slowly. To reach 100 metres it takes six to eight hours, so you are actually consuming a small amount of fuel per minute per hour. Therefore, the smoke that comes from edging in that situation is very light as opposed to when you do the core lighting, and I am pointing to the middle of the block where you are obviously burning the bulk of the forest. There are multiple - something like 78, I think, separate lightings of fire spots where you are consuming fuel with head fire and back‑fire so it is consuming a lot of fuel at any one time, and the smoke from that is many hundreds, if not a thousand times more than a very light back‑burn from the edging (ts 918).
Both Mr Sneeuwjagt (ts 945 ‑ 946) and Mr Packham (ts 989), whose evidence I accept in this regard, said that, in relation to the proposed burn of DPHB8, smoke from the edging burn would be expected to lift into the air and blow across the top of the vineyard and be dispersed. Areas continuing to burn overnight would be likely to produce smoke staying closer to ground level by a weather process known as 'inversion'.

Prescribed burns - purpose and objectives

Mr Sneeuwjagt, whose evidence I accept, described the purpose and objectives of prescribed burns as follows.
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.
The most effective and strategic way to reduce the risk of severe wildfire damage is by broadscale fuel reduction by prescribed burning during mild weather conditions. Prescribed burning does not stop fire occurring, nor does it avoid the need to maintain vigilant, organised, well‑equipped fire suppression resources. But with less fuel on the forest floor, fires can be more easily suppressed, and the impact of wildfire can be significantly reduced.
Fires are an integral and essential part of biological, soil and atmospheric processes that sustain ecosystems. For example, fire has a significant role to play in nutrient cycling and redistribution, plant succession processes, animal habitat maintenance, competition and other inter‑actions within ecosystems. Prescribed burning is therefore an essential tool in the maintenance of the ecosystem health and vigour of fire‑prone forests.
Fire is also used to regenerate forests following timber harvesting through the application of moderately high intensity burns. Habitats for certain animals requiring fire‑regenerated thickets are renewed by fires at appropriate intensities and periods between fires.
Prescribed burning is the principal land management tool used for the management of accumulated fuels in parks, forest and reserves of south‑west Western Australia.
The 'fire' experts for the parties also agreed, following an experts' conferral prior to trial, to the following propositions which were recorded and tendered in evidence, which I accept:
(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 to 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.

History and policy of prescribed burning in the south-west of Western Australia

The following history of prescribed burning is principally taken from Mr Walker's evidence and the publications to which he referred, and the Department's publication in 2000 entitled 'Fire management of [the Department's] lands in the south‑west of Western Australia'. Mr Walker was, at the relevant time, the Director for Regional Services of the Department.
In general terms, prescribed burning in Western Australia has been conducted for more than 80 years by the Department and its statutory predecessors.
There are two designated fire seasons for prescribed burning in the south‑west. One is denoted 'spring', although it covers not only the spring months, but also the summer months of December and January and, sometimes, into February. The other is called 'autumn', which is typically March and April, but may extend into May. Generally, the season of the burn refers to the season in which the core ignition is to take place.

1800s ‑ 1950s

Although bushfire ordinances were passed in the mid‑1800s, there was little attempt to address the problem of fire in the south‑west of Western Australia until after the establishment of the Forests Department in 1919.
In the early development of bushland fire policy, conflicting views emerged over the use of fire. Many of the European‑trained professional foresters who were appointed to the new Forests Department were opposed to prescribed burning. Field foresters, with long experience in the Australian bush, were in favour of it.
A policy of restricting the use of broadscale burning was introduced. This policy, together with improved fire suppression, resulted in heavy fuels accumulating in most forest areas by the 1940s.
From the late 1930s onwards, fires had started to become very large and difficult to control. There were major fires in the jarrah forest in 1949 ‑ 1950 and in the jarrah and the karri forests in 1937 and in 1950 ‑ 1951. In the long protected compartments, fires became uncontrollable once they exceeded about a hectare in size, even under quite mild weather conditions.
Also at about this time there were large fires in the southern forest national parks, notably the Walpole‑Nornalup Park and adjoining areas, where whole hillsides of karri and tingle trees were killed.
In 1953, there was a change in Forests Department policy and broadscale prescribed burning for fuel reduction was introduced. Because of the large build‑up of fuels in most of the areas to be burnt, implementation of the policy was cautious and slow at first. Most of the initial burning in the northern jarrah forest was done in winter. There were also technical deficiencies, especially lack of fire‑behaviour information on which to base burning prescriptions, and a lack of trained staff to undertake the work. Little effective burning could be undertaken in the dense southern forests, principally because of lack of access and problems with predicting fire behaviour in complex karri and karri‑tingle fuels.

1960s

In 1961 large, destructive wildfires occurred in the Dwellingup region, destroying 70 houses and buildings in the town of Dwellingup, and completely destroying the towns of Holyoake, Nanga and Banksiadale.
The fires, along with fires in other areas, were the subject of a Royal Commission. One of the terms of reference required an inquiry of the measures necessary or desirable to prevent the outbreak and spread of bushfires in Western Australia and to protect life and private and public property from the consequences of such fires.
The report referred to karri forest in these terms:
The karri forest occurs in four or five patches around the coast between Albany and Busselton … It is a very tall forest with dense undergrowth and is not easy to burn, except in the hottest time of the year when a very damaging fire can develop.
One recommendation in the report was that 'the Forests Department make every endeavour to improve and extend the practice of controlled burning to ensure that the forests receive the maximum protection practicable consistent with silvicultural requirements'.
This did not represent a redirection of policy for south‑west forests. Rather it endorsed the basic policy which had been adopted in 1953, but recommended its improvement and expansion. The Royal Commission's recommendations were adopted in full by the Government of the day, and have continued in operation over the intervening years.
In response to this recommendation, the Forests Department commenced a detailed programme of broadscale prescribed burning, including ignition by aircraft, in the early 1960s.
Mr Sneeuwjagt's evidence, which I accept, was that there have been few major forest fires in the jarrah forest since 1961 and in karri forest since 1970 after the fuel‑reduction burn policy became effective. During this time, no lives of civilians or fire‑fighters have been lost from forest fires. There have been comparatively few houses destroyed or damaged from forest fires since the expansion of the fuel‑reduction burn policy after the 1961 Dwellingup fires.
Prescribed burning has been considered in a number of subsequent government reviews and inquiries into prescribed burning.

1970s ‑ 1980s

Commencing in about 1970 and continuing over the next 30 years, forest research scientists in Western Australia investigated and developed a deep understanding of fuel accumulation rates and the effects on fire intensity and rate of spread of different temperatures, wind speeds, relative humidity, fuel dryness and slope for the jarrah and karri forests. This information was incorporated into a fire behaviour prediction system and a prescribed burning guide, used by field staff in planning and implementing prescribed burns. The publication, by Sneeuwjagt and Peet, 1985, is known as the 'Red Book'.
The Pemberton National Parks (including the Warren National Park) have had a management plan for fire and environmental protection since 1974.
In 1987 the Department prepared an update to the plan entitled 'Interim Guidelines for Necessary Operations'. Clause 4.4 provided:
Due to the fact that there is high recreational use in the Parks areas, the need to maintain the protective burning plan for protection of Park users is essential, as well as to limit the potential for fire spread from recreation sites.
Some areas of the Park need to be fuel reduced to contribute to the system of protective buffers for large areas of karri regeneration in the adjoining State Forest.
The guidelines identified fire‑protection actions which were required, including burning of strategic buffer zones to reduce the risk of spread of fire in accordance with a 'Master Burn Plan', and to maintain fuel loads below 18 tonnes per hectare in karri stands. Depending on the rate of fuel accumulation, the estimated rotation period was 6 ‑ 7 years. The guidelines noted that 'due to the late drying of karri fuels, burning may need to be undertaken in the prohibited burning season' for the parks. (The Bushfires Act 1954 (WA) prohibited burns being undertaken at certain times in the early part of a calendar year, subject to exceptions being applied for and obtained.)
In 1988 ‑ 1989 the Department conducted a prescribed burn on the DPHB8 area. The area had been the subject of earlier burns going back to 1953.

Early 1990s

In 1993, the Department's policy for prescribed burning was the subject of public review, pursuant to a Ministerial condition which was set when the then Minister approved the Department's 1992 Forest Strategy. The review was conducted by a Fire Review Panel which considered written evidence from over 220 submissions and oral evidence from 125 separate individuals or groups. It reported to the then Minister for Conversation and Land Management on 15 March 1994. The reported endorsed the Department's prescribed burning policy and, further, recommended, inter alia:
•That Fire Management become the fourth programme within the Department organisation, and that this programme receive an additional $3 million per annum and steps be taken to implement this over the next three years.
•That the Government publicly declare that regular prescribed fire is essential to minimise extensive wildfires and publicly recognise that the Department is the appropriate authority to carry out prescribed burning for fuel reduction and habitat management within south‑west forests and heathlands.
•That the Government accept that prescribed burning to modify fuel loads is the most cost‑effective way to modify fire behaviour and is essential to minimise the potential damage from wildfires.
•That the Department's burning plans should be better integrated with long‑term logging plans, wildlife corridor planning, and plans for landscape reserves.
•That the Department investigate greater use of helicopters for prescribed burning.
•That the Department's Wildfire Threat Analysis remains an essential fire management tool and that the ranking of values is appropriate for the Department's areas; that is, human life continues to receive the highest priority.
•That the necessary funding be provided to the prescribed burning programme to increase the diversity of season, intensity, frequency and sequence of fires on any single area to ensure that no species will become threatened or extinct.
In 1994, the Department determined that an annual prescribed burning programme of around 200,000 ha each year in the south‑west forest regions would be desirable to provide a reasonable level of fuel reduction and hence protection from wildfires across the lands managed by the Department in the south‑west.
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.

Late 1990s - backlog of prescribed burns

The Department was unable to achieve its 200,000 ha target in the years between 1997 ‑ 1998 and 2002 ‑ 2003 due to a combination of factors. The factors included dry seasons that were unfavourable for safe and effective burning, and other constraints, being:
•the risk of smoke generated from these burns being transported to the Perth metropolitan area;
•lack of available resources due to the occurrence of wildfires in the jarrah forest - wildfires obtain priority for resources, and there is some caution about over‑commitment to prescribed burning if wildfires elsewhere are uncontained; and
•planning and implementation difficulties associated with the complex mosaic of land uses and boundary sensitivities in the karri region - timber harvesting, vulnerable regrowth forests, and neighbouring land uses.
In 1997 ‑ 1998, the Department achieved prescribed burning of 167,151 ha; in 1998 ‑ 1999 98,117 ha; in 1999 ‑ 2000 174,455 ha; in 2000 ‑ 2001 87,866 ha; in 2001 ‑ 2002 74,739 ha; and in 2002 ‑ 2003 144,835 ha.
During these six years, a combined backlog of 452,837 ha of prescribed burns was accumulated. This added significantly to fuel loads across the south‑west.

Early 2000s

In 2001, Mr Walker oversaw an internal review of fire operations which was undertaken by Mr Muller, who was then a project officer with the Department. The review led to a report being published in November 2001.
The review made 43 recommendations, including that the size of individual burn units be maximised where possible; that an adaptive approach to burn planning be taken; and that the prescription objectives for prescribed burns identify the reason and the intended outcomes for the burn.
The reported stated, inter alia:
An analysis of the present situation has identified that insufficient burning is being undertaken to maintain an optimal fire distribution to meet either biodiversity or protection objectives. There is currently potential for large areas to be burnt in wildfires that would be uncontrollable during severe weather conditions. Whilst limited high intensity fires are a desirable component of the overall fire distribution, there is currently a significant risk of loss of biodiversity through extensive high intensity wildfires, particularly in the Southern Forest Region. Such wildfires would also pose a threat to community values.
In 2002, there was a community meeting at Manjimup Town Hall at which there were expressions of concern about the build‑up of fuel loads, and calls for further prescribed burning to be undertaken in the area.

2002 ‑ 2003 fires in Western Australia

2002 ‑ 2003 was one of the worst seasons for bushfires in Western Australia since 1960 ‑ 1961. It was the subject of a statement by the Minister for Environment to the Legislative Assembly on 8 May 2003:
DR J M EDWARDS (Maylands - Minister for the Environment and Heritage) [9.06 am]: Mr Speaker, I draw the attention of the House to the impact the recent bushfire season has had on the State's conservation lands, particularly in the south west. The Department of Conservation and Land Management advises that the season was the worst in more than 40 years in the number of wildfires, their intensity and the area burnt. Since the season began, the department has faced approximately 600 wildfires that have burnt through 754 000 hectares between Geraldton and Esperance. There were three fire events of note. One fire in January at Mt Cooke, about 70 kilometres south east of Armadale, burnt through 18 000 hectares. This was the biggest single fire event in the northern jarrah forest since the disastrous Dwellingup fires in 1961 … In the proposed Walpole Wilderness Area, a fire that began in February flared in March and ultimately burnt through 35 000 hectares. This was the single biggest forest fire event in the south west since the Boorara fires of 1967. In late March, another group of fires burnt through 25 000 hectares in the D'Entrecasteaux National Park. The cost of suppressing fires on the State's conservation lands this season is in order of $11.5 million. Of the 600 wildfires, approximately 200 were a result of [lightning]. In fact, between 21 and 22 March, the department responded to 30 lightning‑caused fires between Yanchep and Walpole. These included five strikes in the D'Entrecasteaux National Park.
... The department has achieved 105 000 hectares of its annual planned burning program of 200 000 hectares. The first part of the program in spring was carried out successfully under difficult and dry conditions. However, the autumn program will also be very problematic because of the pressure to burn before winter rains. The Government supports the use of planned burning to achieve biodiversity and protection outcomes, and has provided additional funds to ensure that the department has sufficient resources to achieve the planned burning program.

Mr Gillard, the Donnelly District Fire Manager, said that in the 2002‑2003 fire season, in the Donnelly District alone, there were 51 wildfires that burnt more than 5,700 ha. Twenty‑four of those fires were caused by lightning. The diversion of resources into fire management and suppression meant there was limited opportunity for prescribed burning in the area in the 2002 ‑ 2003 season.

Fires and inquiries in the Eastern States - 2003

In 2002 ‑ 2003, major bushfires also occurred in New South Wales, Victoria and the Australian Capital Territory. About 3 million hectares were burnt, eight people died, 1,180 houses and buildings were destroyed and about 20,000 livestock were killed.
During 2003, Mr Walker represented the Department in two major national inquiries relating to those fires.
One of the inquiries was conducted by a Select Committee of the House of Representatives of the Australian Parliament. The House of Representatives Select Committee's report was entitled 'A Nation Charred', and was published on 23 October 2003. The report included the following:
3.136Based on the evidence, the Committee has concluded that the implementation of regimes of prescribed burning is the most environmentally and economically effective method of fuel reduction. To be effective the planning and implementation of prescribed fire regimes require the highest possible level of detail concerning the location and extent of past prescribed and unprescribed burns. The Committee is aware of the possibility of counter-productive consequences flowing from the implementation of an ill conceived regime in which burns are either too frequent, thus increasing the flammability of the environment and degrading local biodiversity, or too infrequent, thus being ineffectual.
3.137The Committee recommends that the Commonwealth through the National Heritage Trust, offer assistance to the states and the Australian Capital Territory to develop specific prescribed burning guides, at least to the quality of Western Australia, for national parks and state forests through out [sic] the mainland of south eastern Australia.
3.138The Committee is of the view that the implementation of prescribed burning has fallen significantly behind the levels that are possible and required for the maximum possible protection of life, property and the environment in all areas affected by recent bushfires. It notes that although Tasmania and Western Australia have sustained significant damage through bushfires over recent years, neither state has been subject to a repetition of the catastrophes of their worst fire years, 1967 and 1961 respectively, in more recent experience. This situation stands in stark contrast to the areas burnt out in recent fires that effected the Australian Capital Territory, New South Wales and Victoria.
Recommendation 13
3.139The Committee recommends that the Commonwealth seek to ensure that the Council of Australian Governments seek agreement from the states and territories on the optimisation and implementation of prescribed burning targets and programs to a degree that is recognised as adequate for the protection of life, property and the environment. The prescribed burning programs should include strategic evaluation of fuel management at the regional level and the results of annual fuel management in each state should be publicly reported and audited. (emphasis added)
The other inquiry was conducted by the Council of Australian Governments. The report from that inquiry was published on 31 March 2004. It noted that a reduction in fuel loads in bushland environments will reduce fire intensity and modify fire behaviour, and that prescribed burning is the only cost‑effective way to achieve fuel reduction in large areas of landscape. It recommended strategic burning which accommodated operational constraints and established priorities. In its summary in this regard (cl 6.4.4) it concluded that the 'highest priority must be in zones where fuel reduction … can be most effective in helping to reduce the risk of harm to people, destruction of property and damage to assets' from wildfires.

2003 - additional funding

In February 2003, the Minister for the Environment provided the Department with a generic statement to be used in Ministerial correspondence and public statements as follows:
The Government strongly supports prescribed burning as the primary fire protection strategy for biodiversity values, private and public assets and rural communities in the south‑west.
In late 2003, the Western Australian Government provided the Department with additional resources in order to carry out its prescribed burning programme. This included an extra $3 million in 2003 ‑ 2004.
In December 2003 the Government issued a media statement, quoting the Minister for the Environment as saying:
We remain committed to prescribed burning to protect lives, to protect our forests, the biodiversity conservation values of those forests and to protect surrounding property.

December 2003 - Forest Management Plan

On 10 December 2003, the Minister for the Environment approved the Forest Management Plan 2004 ‑ 2013.
Fire is dealt with in the Forest Management Plan under the heading 'Ecosystem health and vitality'. The Forest Management Plan states:
Objective
An overall aim of the plan is to seek to sustain forest ecosystem health and vitality.
17. Fire
Fire has an impact on forest ecosystems. For example, fire can assist in the regeneration of vegetation. Fire can release nutrients required for plant growth, which might otherwise be locked up within litter and other dead plant materials. However, the excessive use of fire can be detrimental.
Attempts to suppress fire over large areas can result in the gradual build‑up of fuel on the forest floor. This will increase the probability of large and intense fires, which are most costly to suppress and result in a greater loss of economic and biological assets. In most vegetated ecosystems, it is difficult to prevent fire for long periods over large areas. To attempt to do so may be detrimental to biodiversity conservation and the protection of the community.
There are strongly held views in the community that more prescribed burning is required to reduce the risk of wildfire and conversely, that less and a different type of burning is required to protect biodiversity. A review of fire management to be undertaken by the Environmental Protection Authority is proposed to address the use of planned fire for biodiversity management while allowing for protection of human life, property and other values.
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 program 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 to 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 programs.
In relation to the objectives identified under cl 17, three points should be made. First, in its context, the reference to 'fire' in the third dot point is, in my view, on its proper construction, a reference to wildfire, as opposed to prescribed burning. Secondly, on its proper construction, the reference to 'other sensitive areas' in the last dot point is, in my view, a phrase capable of comprehending a reference to, relevantly, areas planted with grapes. Thirdly, also in relation to the last dot point, the phrase 'impacting on population centres' comprehends, in my view, both smoke affecting the amenity of a population centre by the existence of a pall hanging over the centre, and also the potential for smoke to affect the health of the population, including, in particular, the health of those susceptible to respiratory illnesses.
Under 'Key Performance Indicators', the Forest Management Plan provided (page 46):

Key performance indicator 16

The risk to conservation, life, property and other forest values posed by wildfire.

Performance measure

The area of forest by fuel age classification.

Performance target(s)

Target to be determined following the Environment Protection Authority's review of fire management.

Reporting

Annually.

Response to reporting

The Department to evaluate high‑risk areas and incorporate

into fuel reduction planning for subsequent years.

The 'Goals for Understorey Structural Diversity' (referred to in cl 17.1.3) is a document that the Forest Management Plan contemplated would be prepared by the Department for the 'purpose of seeking to conserve biodiversity through a diverse representation and distribution of forest structures and understorey seral stages through time' (cl 4, 4.1 and Appendix 1).
By cl 34.1 and Appendix 1, the Department is to maintain a comprehensive suite of operational guidance documents, including its Fire Operations Manual (as to which see [172] ‑ [173] below).
The Executive Summary (page 8) to the report, although not forming part of the Forest Management Plan itself, stated:
Ecosystem health and vitality
The plan recognises the proposed review of fire by the Environment Protection Authority and the fact that policy may change as a result of it. However, the broad thrust of the recommendations from the Departmental review of fire management in the south‑west forests are adopted, particularly that burn planning be based on diversity/structural models of vegetation units so as to promote the maintenance of biological diversity. This ties in with the proposal in the biodiversity section to set goals for understorey vegetation diversity. The commitment to maintaining an adequate level of protection for south‑west communities remains.
The references in the Forest Management Plan, both in the Executive Summary and in paragraph 3 under the heading 'Fire' in cl 17, to the proposed review by the Environmental Protection Authority, are both references to the report published in October 2004 (see [150] below).

2003 ‑ 2004 - further resources

In 2003 ‑ 2004 the Department was able to apply more resources to prescribed burning. The resultant increased levels of prescribed burning were the subject of a further statement to the Legislative Assembly by the Minister for the Environment in these terms on 2 June 2004:
DR J M EDWARDS (Maylands - Minister for the Environment) [12.04 pm]: I will inform the House of the latest situation regarding the Department of Conservation and Land Management's fire management activities in the south west forest areas of the State. Until rain intervened on Monday of this week, [the Department] had achieved prescribed burns over 195 000 hectares in the 2003‑04 season. This compares with a total of 145 000 hectares in the previous year. In addition to that, a further 15 000 hectares were burnt in wildfires this year, along with 126 000 hectares in 2002‑03.
...
This means that fuel loads have been reduced across 480 000 hectares of land managed by [the Department] in the south west forests in the past two years. This is a very good outcome in protecting property and community assets and conserving biodiversity values. It is significant that [the Department] has now achieved more than 120 000 hectares of prescribed burning in the south west forests this autumn. This is the highest level of autumn burning in decades, and the overall result so far this year is the highest level of prescribed burning for eight years.
Members may remember that last December, the Government announced the allocation of an additional $3 million to [the Department] for fire management in the 2003‑04 financial year. This allocation has been a significant factor in allowing [the Department] to achieve its targets through the employment of additional seasonal personnel. That additional funding was provided in response to concerns that the backlog of burning programs in the south west was increasing and that there could be a significant risk to communities and environmental values. In further recognition of the need to protect property, community assets and biological values from the ravages of wildfires, the Government is allocating an additional $24.3 million to [the Department] over the next four years for fire management. Additional funding for 2004‑05 is $3.6 million, with extra funding of $5.6 million in 2005‑06 and $7.6 million a year in the following years.
…
The additional funding that the Government is providing to [the Department] and the development of new technology will assist [the Department] in placing a greater emphasis on managing fire for ecological purposes, as well as helping to protect human life, private property and community assets.

EPA Report October 2004

In October 2004 a committee established by the Western Australian Environmental Protection Authority (EPA) provided a report, to the then Minister for the Environment, into a review of the Department's fire management policy and practices in the Swan, South West and Warren administrative regions. The EPA made various recommendations in its report including that burn objectives be made clearer; that community consultation programmes be further developed; that the Conservation Commission audit the burn programme; and that the Department should document its planning and operational processes for prescribed burning.
The EPA report endorsed the Department's objectives with respect to prescribed burning. It stated in its conclusions:
The EPA recognises that a fuel reduction programme is a key strategy in reducing the extent and damage to biodiversity and other assets, which might otherwise be caused by wildfires. The value of a prescribed burning programme is not in reducing the number of wildfires, but rather their intensity, to assist in its suppression, and to reduce the damage they may cause to biodiversity.
The EPA supports the objectives expressed in [the Department's] draft policy and finds that it and the attached appendix outlining the rationale and principles for fire management practices are comprehensive. However, despite the fifty or so years of accumulated fire research that has been undertaken by [the Department] and others there are still many gaps in our knowledge and understanding of the complex ecosystems of the south west, for example the increasing effects of fragmentation of the forest areas, and climate change, including declining rainfall. Therefore, an ongoing research programme and an adaptive management approach need to be used by [the Department] to continuously upgrade its fire planning and operations as new information becomes available. [The Department] supports this approach.
With regard to the stated objectives for managing fire the EPA considers that the protection of human life must be a priority and that [the Department's] planning and procedures for life, assets and strategic infrastructure on its managed lands are effective. The EPA considers that practices in place are appropriate for minimising smoke from prescribed burns in the metropolitan area. Further consideration should be given, however, to the effects of this smoke on human health to establish the full significance of this relationship so that it can be balanced against the risks of wildfires to health and property.
With respect to neighbouring properties and assets in peri‑urban developments and towns and communities in the south west forest areas, [the Department] has an obligation to manage the risk of wildfire either entering or exiting the lands it manages and applies a risk management approach to discharging its implied fire protection responsibilities to minimise wildfire impacts and potential liabilities. The EPA endorses the concept of buffer zones, in which the amount of flammable vegetation is reduced, both on surrounding [Department]‑managed lands and on the adjacent privately‑owned portions. The EPA notes, however, that whilst Government should be leading in its planning and provision of subdivisions that are safely located with respect to wildfire, Government will never be able to protect all private property, nor should it be expected to. Land and property owners need to accept responsibility for their own protection from fire, especially if they have chosen to live where the risk of fire is elevated.
The EPA recognises that the impact of prescribed burning on biodiversity is not adequately known or understood and understands that the community has strong and conflicting views on whether present practices address this adequately. While it is explicitly mentioned in [the Department's] draft policy, there is insufficient information on the effects of prescribed burning on WA's south west ecosystems to allow the EPA to come to a conclusive view that optimum outcomes are being achieved. As a consequence a cautionary approach needs to be followed, and adaptive management techniques applied as more information becomes available from fire ecology research. The EPA considers that more research is required in this area as a basis for the introduction of improvements to current fire management practices to facilitate the protection and enhancement of biodiversity.
The set of issues raised and the recommendations made will require ongoing assessment to determine whether they are achieving the desired outcomes and improvements suggested. The EPA believes that this fits into the same timeframe as is used for the review of the Forestry Management Plan and suggests that a formal review be considered in unison with the review of the Forestry Management Plan. (emphasis added)

The Department's planning and processes for prescribed burning

The processes and planning for prescribed burning were, to varying degrees, described by a number of witnesses. The following is taken principally from the evidence of Mr Sneeuwjagt, Mr Keppel, Mr Gillard and Dr McCaw of the Department, whose evidence I accept on these matters.

Wildfire Threat Analysis

The Wildfire Threat Analysis system is a system developed by the Department for analysing the threat from, and planning appropriate responses to, wildfires. It provides a standardised, repeatable framework to analyse quantified data from the significant factors likely to contribute to the threat of wildfire and it consequences.
The Wildfire Threat Analysis provides an objective comparison of wildfire threat between different areas with different risks. Thus, it allows, for example, the threat of wildfires in the Wanneroo area (which has its own weather and fuel conditions) to be compared with the threat of wildfires in the Walpole region (with different conditions).
In conjunction with the Wildfire Threat Analysis, there is a rating system devised for prescribed burning, which uses the fire protection values and other management values referred to in the Wildfire Threat Analysis. The rating system is used to provide a guide for priorities of burning, and is used to ensure that the highest priority areas are burnt. Clause 1.5 of the rating system deals with the strategic value of the burn. Under this measure, the strategic value of a burn is allocated points between zero and 60, with 60 signifying the highest strategic value. DPHB8 was given the highest strategic value of 60 points.

The second question under s 5B(1)(b) is whether the risk of smoke taint to grapes was 'not insignificant'. In adopting the language of 'not insignificant', the legislature seems to have eschewed the language of the common law in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 46 ‑ 47, concerning the existence of a risk which is 'real' in the sense that it is 'not far‑fetched or fanciful'. (This point is helpfully discussed by Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (2004) [1A.5B.070].) Whilst recognising that aspect of the use of the language in s 5B(1)(b), the word 'insignificant' is an ordinary English word and, it seems to me, no utility is gained by searching for synonyms to unlock its meaning. An evaluative judgment needs to be made as to whether, on the evidence, the relevant risk is 'not insignificant'.
In relation to s 5B(1)(b), in my view, the following evidential considerations are relevant. First, there was good evidence, both anecdotally from the reports of vignerons affected by the fires in south‑eastern Australia in early 2003, and from the AWRI Report, that the risk of smoke taint to grapes from fires with the intensity and smoke level of bushfires was at least not insignificant. Secondly, notwithstanding Mr Godden's statement, in effect, that he was unaware of the level of risk from prescribed burning, the evidence was that a core ignition would involve a substantial intensity of fire and associated high levels of smoke. I infer that a core ignition burn of over 500 ha would exhibit characteristics of fire and smoke intensity which would not be dissimilar to those associated with a bushfire. Thirdly, there is the fact that, as Mr Sneeuwjagt's evidence indicated, within a day, and in the course of a burn over several days, there is a significant chance of the occurrence of swings and changes in wind direction. Accordingly, even with the core ignition scheduled for a day with favourable winds in the north‑east quadrant, and with forecast easterly winds on 2 April, there was a not insignificant risk that the winds would move around from time to time in the course of the edging and core ignitions. Also, whilst the core ignition of DPHB8 would be completed on 1 April 2004, it was expected that two further days would be needed to mop‑up. During this time also the smoke could be expected to continue to drift. Fourthly, there was the evidence that, regardless of the wind direction during the day, there was a potential for the smoke to return and linger during the evening as a result of being trapped by an overnight inversion, the occurrence of which is not uncommon in the region. Fifthly, the previous prescribed burn adjacent to the eastern boundary of the plaintiffs' vineyards, the smoke from which covered the vineyards, had created a smoke taint problem. Sixthly, the plaintiffs' grapes were within one of the stages of development in which susceptibility to smoke uptake was not insignificant.
For these reasons, I would conclude that the burn of DPHB8 presented a not insignificant risk of smoke taint to the plaintiffs' grapes.
The third question is whether a reasonable person in the position of the Department would have taken the precautions that the plaintiffs allege should have been taken: s 5B(1)(c) of the Civil Liability Act; Adeels Palace Pty Ltd v Moubarak [28]. That question is to be determined prospectively, without the use of hindsight: Adeels Palace Pty Ltd v Moubarak [40].
When considering the application of s 5B(1)(c), s 5B(2) requires the court to consider, but not confine its consideration to, the matters in s 5B(2)(a), (b), (c) and (d). Under this provision the court would be entitled, in my view, to take into account matters relevant to breach of duty under the common law, except to the extent that their potential application is inconsistent with s 5B or any other relevant provisions of the Civil Liability Act, properly construed.
In relation to the question of whether a reasonable person in the Department's position would have taken the precaution of deferring the burn of DPHB8 until after harvest, or otherwise rolling it over to another season, in my view, the matters referred to in [406] ‑ [413] above are relevant. The Department had, in the words of Mason J in Wyong Shire Council v Shirt (47) 'other conflicting responsibilities', as a result of which a reasonable person in the Department's position would not have deferred the burn as alleged.
In terms of the particular factors referred to in s 5B(2), my findings are as follows. As to s 5B(2)(a), the risk of smoke taint to grapes, whilst not insignificant, would not, in my view, be regarded as high, in light of the absence of scientific evidence connecting prescribed burning to smoke taint, and in light of the Department's previous experience of prescribed burning in the winegrowing areas of south‑western Australia in the previous 40 years. As to s 5B(2)(b), the nature of the potential harm from the core ignition, were such harm to occur, was, in my view, serious in that smoke taint could well destroy the economic value of the plaintiffs' harvest for that year. With respect to s 5B(2)(c) and (d), those factors bring to account the matters in [406] ‑ [413] to which I have referred in [499] above. In my view, they indicate that the burden of deferring the burn (including the wasted opportunity when opportunities are limited), and the important social utility of carrying it out, outweighed the risk of harm to the plaintiffs' grape crop for a year.
I find that having regard to the above matters, a reasonable person in the Department's position would not have 'rolled‑over' or otherwise deferred the burning of DPHB8.
In relation to the alleged failure to take the precaution of deferring the commencement of the burn from 31 March to 1 April, the matters to which I have referred in [414] ‑ [428] are relevant and are to be considered in the context of the matters in [406] ‑ [413]. The probability that harm would occur from the edging burn was low. Given that the fire intensity and associated smoke level from an edging burn is of quite a different order from that of a core ignition, an edging burn on south to south‑easterly winds would not carry the kind of dense smoke associated with a bushfire, or core ignition. Thus, in itself, the edging burn does not carry a high or even significant probability of harm. Moreover, the deferral of the edging burn for a day would not alter the fact that a core ignition, with its high density of smoke, would still be required. In light of the evidence of the uptake of smoke in grapes, and the possibilities of changes in wind direction, and of inversion, the deferral of the edging burn for a day would not, in the context of the burn in its entirety, have materially altered the probability of the risk of harm to the plaintiff's grapes occurring. If harm were to occur, however, it would be serious as it could damage the whole grape crop for the year. The burden of deferral for a day was to run the risk of not completing the burn before the arrival of north and north‑west winds, and thereby run the risk of losing the opportunity to do the burn or, if the burn went ahead, run the risk of it not being completed safely. The carrying out of a safe and effective burn was an activity of high social utility. In my view, no reasonable person in the Department's position would have deferred the burn for a day as alleged.
In relation to the alleged failure to consult meaningfully with the plaintiff, that allegation in my view fails for two reasons. First, I find that Mr Marshall and Mr Gillard both consulted the plaintiffs concerning the proposed burn of DPHB8, and that the consultations were meaningful in that they resulted in amendments to the planning of the prescribed burn, each of which was designed to minimise smoke over the vineyards. The second, and final amendment to the burn prescription, also resulted in the procurement of additional resources to manage the extra risks involved in undertaking the burn on easterly or north easterly winds in order to minimise smoke over the plaintiffs' vineyards. Secondly, even if I am wrong in finding that there was meaningful consultation, in my view a reasonable person in the Department's circumstances would not have engaged in meaningful consultation with a view to delaying the burn, having regard to the matters referred to in [499] ‑ [502] above.
It was suggested by Dr Tolhurst, in effect, that the burn of DPHB8 could have been managed differently, and better, from the plaintiffs' perspective, by breaking up the area of DPHB8 into smaller parcels and burning each separately. Multi‑stage burning is routinely undertaken by the Department in the south‑west. It has, however, its disadvantages. The experts in their conferral (including Dr Tolhurst) agreed: 'Multi‑stage burning requires a greater level of resources to complete than single stage burns and carries additional risks'. The defendants' witnesses (Mr Keppel ts 557, 588; Dr McCaw ts 875; Mr Sneeuwjagt ts 925 ‑ 926 and Mr Cheney ts 1004) did not accept the proposition as a reasonable method of burning in this case. Their evidence, which I accept, indicated that larger burns maximise burn efficiency and fuel reduction, and that a series of smaller burns requires finding more windows of opportunity for burning, when opportunities are in any event very limited. Multiple burns also increase the risks of escape, and involve inefficient use of limited resources. Apart from Dr Tolhurst's suggestion that a multi‑stage approach would have been a 'viable option' for the burn of DPHB8, there was, in my view, no cogent evidence to suggest that the probability and likely seriousness of harm to the plaintiffs' grapes would, in any event, be lessened were a multi‑stage approach adopted. The evidence of the 'wine' experts was that the effect of smoke exposures on grapes is additive and even small exposures may contribute to the final taint observed in wine (see [262] above). Furthermore, consideration of the burdens involved in adopting such a method, referred to above, and the social utility of burning in a safe and effective way, confirms, in my mind, the evidence of the defendants' witnesses that a multi‑stage burn was not a reasonable method of burning in the circumstances. Accordingly, I find that a reasonable person in the Department's position would not have adopted such a method.
The circumstances to which I have referred in the preceding paragraphs are consistent with Mr Muller's evidence, which I have accepted, that, in relation to the burn of DPHB8, reasonable steps were taken to minimise smoke over the vineyards and that a prudent fire manager would have taken advantage of the window of opportunity on 31 March 2004 to burn DPHB8. If there were a duty of care owed to the plaintiffs, in my view, the Department exercised reasonable care in the circumstances.
I also find, as a fact, that the burn was carried out in accordance with the burn prescription, and in accordance with the standards and procedures applied by the Department in connexion with its Master Burn Plan. These included the avoidance of burns on north to north‑west winds, particularly in respect of large areas of land. With respect to the plaintiffs' allegation that the burn prescription required the burn to be commenced on east‑south‑east to easterly winds, I have found that this allegation mischaracterises Mr Gillard's amendment, which contemplated the burn to be completed (not commenced) on winds of that kind. I should also add here that, as I understand it, the plaintiffs do not complain that the burn was undertaken with a view to it being completed on forecast easterly winds with a northerly component, rather than on easterly winds with a southerly component as Mr Gillard's amendment had specified. Even if this complaint had been made, the burn prescription, construed purposively, would not in my view have precluded the core ignition from being undertaken on easterly winds with a northerly component on the second day of the weather cycle and, in any event, the burn of DPHB8 was approved by Fire Management Services. In construing the burn prescription, it should be read as conveying the meaning which a reasonable person in the Department involved in the burn would understand it to mean. In this regard, the experts' agreement, in the following terms, is of relevance:
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 …
I also accept Mr Sneeuwjagt's evidence as to the object and purpose of the burn prescription as amended so far as it concerned the plaintiffs' position:
... The fact of the matter is, Mr Sneeuwjagt, that you authorised the burn to be carried out contrary to both the note affixed to the prescription by Mr Marshall and the note affixed to the prescription by Mr Gillard. That's the fact, isn't it?‑‑‑No, it's not the fact. I think you are trying to put words in my mouth here. As I said to you, I agreed with the edging lighting to be undertaken under those south‑south‑east winds, knowing full‑well, based on the forecast that more favourable weather was ahead to allow the bulk of the smoke to go away, thereby minimising the impact. Which was always our objective.
Moreover, winds from the east without a southerly component would likely have benefitted the plaintiffs rather than winds from the east with a southerly component.
The above matters indicate that there was a proper exercise of the Department's functions, and provide grounds for confirming that if, contrary to my conclusions, a duty of care exists, it was not breached: s 5W(d) of the Civil Liability Act.
Furthermore, if my conclusions above are erroneous, the decision to burn DPHB8, when it was burnt, was, in essence, a decision based substantially on political or social factors or constraints, and was accordingly a policy decision within the meaning of s 5X of the Civil Liability Act. On either basis upon which the plaintiffs put their case, namely, the deferral of the burn until after harvest or some other unspecified time, or a deferral from 31 March to 1 April, the gravamen of the complaint is that an appreciation of the risk of harm to the plaintiffs' grapes should have led to the burn not being carried out when it was. The question of whether the risk of smoke taint to the grapes, and thus to the economic interests of winegrowers in the region, should be determinative in deciding whether to proceed in accordance with the prescribed burning programme for 2004, was the very matter which the Minister was asked to consider. The plaintiffs' particular request for deferral was also before the Minister. The decision to burn in accordance with the prescribed burning programme irrespective of the risk of damage to grape crops in early 2004, was, in my view, clearly a decision based substantially on political and social factors. This is so having regard both to the nature of the decision, and the circumstances in which it was made. It was made against the broad background of the political history of prescribed burning in this State, and in the context of the particular political sensitivities prevalent at that time, as revealed in the Minister's statements to the House. The operational decision to burn on 31 March 2004 gave effect to the Minister's decision.
Having regard to the matters in [406] ‑ [428], it was not, in my view, a decision so unreasonable that no reasonable public body or officer could have made it. In these circumstances, any fault by the Department in deciding to carry out the burn on 31 March 2004, or in failing to defer the burn, was, in substance, a policy decision in the performance of a public function. Such a policy decision cannot be used to support a finding of fault, by reason of s 5X of the Civil Liability Act. Accordingly, in my view, to make a finding of liability on the basis that the defendants failed to defer the burn, would be contrary to s 5X.

Section 132 of the CALM Act

The potential operation of s 132 of the CALM Act draws attention to the precise basis or bases upon which the plaintiffs contend that each defendant is liable. As noted earlier, the particularised plea of negligence in the statement of claim refers to negligence by the 'second defendant [ie, the State] and its servants or agents'. For the purposes of this plea, I understand that the plaintiffs' contention is that the Executive Officer, as a corporate body, is an agent of the Crown in right of the State of Western Australia. The plea, insofar as it refers to 'servants or agents' might be thought to suggest the State is alleged to be vicariously liable for the conduct of the employees in the Department ('servants') and the conduct of the Executive Director (as an 'agent'). As noted below, however, the plaintiffs appear to disavow any reliance on vicarious liability.
The plaintiffs, in their submissions, generally used the word 'defendants' as a compendious term, without discrimination between the two defendants, in advancing their case in negligence in terms of both breach and duty. Reference to each defendant was, however, separately made in relation to submissions on s 132. The plaintiffs' submissions (page 17 closing submissions) in that regard said:
Section 132 of the CALM Act does not avail either of the Defendants as a defence to their breach of their common law duty to the Plaintiffs. S 132 only extends to the 'personal liability' of an individual; not to the liability of the State, qua the State, nor to the common law duty of care owed by the Department, that is, the Executive Director in his corporate capacity, not to cause harm to the Plaintiffs in the exercise of its statutory duty or powers; that is to say, the common law duty which the Executive Director owes to the Plaintiffs by virtue of the principles stated and applied, for example, in Crimmins, Pyrenees, Burnie and see Leichhardt Municipal Council v Montgomery (1997) 230 CLR 22; [2007] HCA 6 as to non‑delegable duty and note per Gleeson CJ at [18] regarding the non‑delegable duty that arises from the conduct of extra‑hazardous activities, which is the case with respect to prescribed burning. The Executive Director is not sued personally but in his statutory corporate capacity as it was at the time of the DPHB8 Burn; see NSW v West (2008) 165 ACTR 47, (2008) Aust Tort Reports, 81‑967; [2008] ACTCA 14; and the State is sued because the Department through the corporate capacity of the Executive Director, is an agency of the State which is responsible, and liable, for any breach of duty by its Agency. This is not a case of vicarious liability, either by the Department or the State; cf Bell v State of Western Australia [2004] WASCA 205.
Notwithstanding the last sentence in the above quote, the penultimate sentence might be thought to suggest the concept of vicarious liability.
The plaintiffs' senior counsel, in closing oral submissions, also said:
We are not relying on a case of vicarious liability ... this is not a case where the plaintiff relies on the personal liability of an individual; rather, it is relying upon the liability of the department for a breach of its duty to carry out its function with proper care.
The plaintiffs also referred, in closing submissions, to the existence of a non‑delegable duty of care owed by the Department in accordance with authorities such as Burnie Port Authority v General Jones Pty Ltd.
For the reasons given earlier at [441], in my view, this case does not involve the existence or otherwise of a non‑delegable duty of care as explained and applied in cases such as Burnie Port Authority v General Jones Pty Ltd. Further, as the Executive Director, as a corporate body, is an agent of the Crown in right of the State of Western Australia, in my view, the State could only be liable for any tort committed by the Executive Director on the basis of vicarious liability. Also, the Executive Director as a corporate body would not, in the circumstances, in my view, be liable for the acts of the Department's employees. Rather, the State of Western Australia, and not the Executive Director, would be vicariously liable for the tortious conduct of employees within the Department: see Hogg P & Monahan PJ, Liability of the Crown, (3rd ed) 119, 341 ‑ 342; and State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 66 ‑ 67, in relation to government employees.

It was not clear whether, and if so how, the plaintiffs were putting a case based on vicarious liability and, as I have found, a non‑delegable duty of care as postulated by the plaintiffs has not been established.
Having regard to my earlier findings on duty and breach, the proper construction of s 132 of the CALM Act is not ultimately determinative of this action, and the matters referred to above have meant that the debate on s 132 has lacked some clarity and focus. It is, accordingly, unnecessary to come to a concluded view on the proper construction of s 132. It is not necessary to consider whether, in particular, having regard to the relevant principles of construction, an express reservation of vicarious liability is required or whether an implied reservation is sufficient, and whether the use of the word 'personally' in s 132 signifies an implied reservation of vicarious liability in the State of Western Australia. See generally Bell v The State of Western Australia [2004] WASCA 205 [4], [34] and [35]; Nada v Knight (1990) Aust Tort Rep 81-032 at 67,918; Hogg & Monahan, Liability of the Crown, 120, Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575.

Conclusion

In light of the above reasons, I find that a duty of care, as alleged by the plaintiffs, or otherwise, did not exist. If such a duty did exist, I find that it was not breached. Accordingly, the plaintiffs' action must be dismissed.

Vintage	Start of Veraison	Start of Harvest	Finish of Harvest
2001	01-Jan-01	28-Feb-01	20-Apr-01
2002	01-Feb-02	14-Apr-02	09-May-02
2003	14-Jan-03	19-Mar-03	15-Apr-03
2004	14-Jan-04	20-Mar-04	06-May-04
2005	12-Jan-05	12-Mar-05	23-Apr-05
2006	24-Jan-06	25-Mar-06	28-Apr-06
2007	01-Jan-07	24-Feb-07	31-Mar-07

Key performance indicator 16	The risk to conservation, life, property and other forest values posed by wildfire.
Performance measure	The area of forest by fuel age classification.
Performance target(s)	Target to be determined following the Environment Protection Authority's review of fire management.
Reporting	Annually.
Response to reporting	The Department to evaluate high‑risk areas and incorporate