Medium Neutral Citation: Weber v Greater Hume Shire Council [2019] NSWCA 74
Hearing dates: 26, 27 February 2019
Date of orders: 17 April 2019
Decision date: 17 April 2019
Before: Basten JA at [1];
Gleeson JA at [200];
Sackville AJA at [201]
Decision:
(1)   Grant Sharon Patricia Weber leave to appeal from the judgment and orders in the Common Law Division;
(2)   Allow the appeal and set aside orders made on 14 May 2018; in their place make the following orders –
(a)   Give judgment for the representative plaintiff, Sharon Patricia Weber, against the defendant, Greater Hume Shire Council, in the amount of $104,400 plus interest;
(b)   Order that the defendant pay the plaintiff’s costs of the trial of the common issues;
(c)   Remit the proceedings to the Common Law Division to deal with the outstanding issues in the representative proceedings.
(3)   Order that the respondent pay the appellant’s costs in this Court.

Catchwords:
TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate

TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A

TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions
TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff
Legislation Cited: Careless Use of Fire Act 1912 (NSW), s 9
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5H, 5M, 32, 41, 42, 43A, 49; Pt 5
Crown Lands Act 1989 (NSW), ss 92, 98, 100; Pt 5
Crown Land Management Act 2016 (NSW), Sch 8
Local Government Act 1993 (NSW), ss 24, 48; Ch 6
Protection of the Environment Operations Act 1997 (NSW), ss 5, 48; Sch 1, items 39, 42
Rural Fires Act 1997 (NSW), ss 63, 81, 93, 95, 133
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Anns v Merton London Borough Council [1978] AC 728
Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 401
Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340; 191 LGERA 182
Black v The Christchurch Finance Company Limited [1894] AC 48
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162; [1940] HCA 35
Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314
Donoghue v Stevenson [1932] AC 532
Electro Optic Systems Pty Ltd v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45
Fletcher v Rylands (1866) LR 1 Ex 265
Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56.
Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40
Murphy v Brentwood District Council [1991] 1 AC 398
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Rylands v Fletcher (1868) LR 3 HL 330
Stovin v Wise [1996] AC 923
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41
Texts Cited:
M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019)

NSW Government Gazette (No 150), 11 November 1994

Reserve No 49,269; NSW Government Gazette (No 153), 24 September 1913
Review of the Law of Negligence – Final Report (September 2002)
Category: Principal judgment
Parties: Sharon Patricia Weber (Appellant)
Greater Hume Shire Council (Respondent)
Representation:
Counsel:
Mr P Braham SC / Mr D Birch (Appellant)
Mr R Sheldon SC / Mr A Barnett (Respondent)
Solicitors:
Maddens Lawyers (Appellant)
Mills Oakley Lawyers (Respondent)

File Number(s): 2018/180967
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2018] NSWSC 667

Date of Decision:

14 May 2018

Before:

Walton J

File Number(s):

2015/368036

headnote

[This headnote is not to be read as part of the judgment]

The respondent, Greater Hume Shire Council, operated a waste disposal site on a reserve south-west of Walla Walla (“the Tip”). The appellant resided in Gerogery, 11km from the Tip. On 17 December 2009, a fire ignited in the Tip and quickly spread, reaching Gerogery where it destroyed homes and personal possessions of a number of residents including the appellant.

On 15 December 2015 the appellant commenced representative proceedings in the Supreme Court against the respondent. The appellant claimed that the Council had been negligent in the operation and maintenance of the Tip by failing to reduce the risk of fire and the likelihood of its escape. The appellant contended that the respondent’s failure to take precautions had caused the ignition and uncontrollable spread of the fire, which had resulted in the damage suffered by the appellant and other effected residents.

The trial judge found that the respondent owed the appellant a duty of care, and that this duty was breached by the respondent’s failure to create a fire management plan, create an effective firebreak, consolidate deposited waste into appropriate areas and remove fuel, including long grass. However, the trial judge found that the appellant had not demonstrated factual causation as the cause of the fire could not be proven, and it was not demonstrated that reasonable precautions would have prevented the escape of the fire. The proceedings were therefore dismissed. The plaintiff appealed.

The main issues raised by the appellant were:

(1) whether causation was established where a sole probable cause of the fire could not be identified, but the likely causes were all due to the respondent’s negligence; and

(2) if so, whether a causal link was established between the respondent’s failure to take precautions against the risk of fire and the damage suffered by the appellant.

The respondent filed a notice of contention challenging findings adverse to it, namely:

(3) as to duty of care;

(4) as to breach of duty;

(5) rejecting the respondent’s defence under s 42 of the Civil Liability Act 2002 (NSW); and

(6) rejecting the respondent’s defence under s 43A of the Civil Liability Act.

The Court (Basten JA, Gleeson JA and Sackville AJA) allowed the appeal and held:

In relation to duty of care:

(1) Subject to the operation of the Civil Liability Act 2002 (NSW), the liability of a land owner with respect to fire escaping from its land depends on the law of negligence: [15], [25]-[27], [200], [210].

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5M, 42 referred to; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, distinguished; Burnie Port Authority vGeneral Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 applied.

(2) The imposition of a duty of care that extended to those affected by the fire, was not inconsistent with the Council’s statutory functions: [42], [200], [210].

Crown Lands Act 1989 (NSW), ss 2 92, 98 and 100; Local Government Act 1993 (NSW); Protection of the Environment Operations Act 1997 (NSW), ss 48 and 5, Sch 1; Careless Use of Fire Act 1912 (NSW), s 9; Rural Fires Act 1997 (NSW), ss 63, 95, 81 and 133;

Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59; Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 considered.

(3) The existence of a duty of care to prevent the escape of fire is not a novel proposition; nor was the class of persons potentially affected indeterminate; the Council owed a duty of care to the appellant as a person directly affected by the fire: [23]-[27], [200], [207]-[208].

Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258; Electro Optic Systems Pty Ltd v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45 distinguished;

Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56; Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 applied.

In relation breach of duty and Civil Liability Act, s 42:

(4) In considering if the Council has breached its duty of care by failing to take specific precautions, s 42 allows the Court to consider the availability of unallocated funds, but cannot challenge the general allocation of resources: [99]-[100], [200], [243].

Civil Liability Act 2002 (NSW), ss 5B, 5C, 41 and 42 applied;

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29; Stovin v Wise [1996] AC 923; Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41; Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340; 191 LGERA 182 considered; Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 applied.

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263, doubted.

(5) The Council’s financial statements indicated that there were sufficient unallocated funds available at the relevant time for it to undertake the precautions necessary to reduce the risk of the ignition or spread of fire at the Tip: [180], [200], [243].

In relation to Civil Liability Act, s 43A:

(6) The Council’s management of the Tip was not undertaken pursuant to a special statutory power; general law principles applied and s 43A was not engaged: [50], [200], [211].

Local Government Act 1993 (NSW), s 48; Protection of the Environment Operations Act 1997 (NSW);

Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314; Refrigerated Roadways, considered.

In relation to causation:

(Per Basten JA and Gleeson JA):

(7) It was unnecessary for the Court to be satisfied as to the precise cause of the fire if it was more probable than not that the fire was caused by one of the methods of ignition caused by the Council’s negligence: [141], [200].

Lithgow City Council v Jackson (2011) 244 CLR 355; [2011] HCA 36, considered.

(Per Sackville AJA):

(8) The relevant question was whether the fire would have escaped from the Tip if the precautions had been taken: [216].

(Per Basten JA, Gleeson JA and Sackville AJA):

(9) Specific precautions which should have been taken by the Council, including compacting and covering the general waste, levelling the ground between waste to allow for slashers and similar machinery, removing long grass, and maintenance of a cleared firebreak would have slowed the spread of the fire: [160], [200], [237].

(10) The precautions which should have been taken would probably have allowed the fire to be controlled before it escaped from the Tip; the breaches of duty therefore caused the appellant’s loss: [198], [200], [236].

Judgment

BASTEN JA: Walla Walla is a town in southern New South Wales some 40km due north of Albury. It is in the local government area of the respondent, the Greater Hume Shire Council (“the Council”). As part of its waste management activities the Council operates a number of waste disposal sites; one was on a reserve some 2km south-west of Walla Walla. It had an area of about 4 hectares. At around 1.30pm on 17 December 2009 a fire was observed in the north-west corner of the tip. Fanned by a hot north-westerly to nor-nor-westerly wind, the fire crossed the tip, a distance of approximately 150 metres, and jumped a fire-break on the south side of the tip.
The fire continued to burn, moving rapidly in a generally south-easterly direction for a distance of 11km, reaching the town of Gerogery about one hour after escaping from the tip site. At Gerogery it destroyed a home occupied by the plaintiff, including her personal possessions. The fire continued past Gerogery and was eventually stopped by a wind change, the arrival of rain and the efforts of firefighters and aircraft. The fire burnt some 5,200 hectares.
On 15 December 2015, just within the limitation period, the plaintiff commenced representative proceedings in the Supreme Court against the Council, claiming damages on behalf of herself and a class of persons she represented. The class was described as “all persons who suffered loss or damage to property as a result of the fire” and all persons who suffered personal injury (including psychiatric injury) as a result of the fire. Following a trial in April 2017, the primary judge, Walton J, delivered judgment on 14 May 2018, dismissing the proceedings with respect to the plaintiff. [1]
1. Weber v Greater Hume Shire Council [2018] NSWSC 667.

Findings at trial

In a carefully structured judgment, the primary judge found that the Council owed the plaintiff (and group members) a duty of care expressed in the following terms:

“[246] In my view, the plaintiff has established that the defendant owed a duty to the plaintiff (and the group members) to take reasonable care to avoid risk of personal injury or property loss caused by the escape of fire from the Tip.”

The judge then turned to the question of breach, noting that, in the language of s 5B of the Civil Liability Act 2002 (NSW), the plaintiff had alleged a number of precautions which she said the Council ought to have taken but failed to take against the risk of harm from fire. They were identified as follows:

“[262]   The 10 precautions the plaintiff alleged the defendant should have taken, … in summary, were to:
(a)   prepare and implement a fire management plan;
(b)   create and maintain an effective firebreak;
(c)   consolidate deposited waste into appropriate areas;
(d)   remove fuel to prevent dangerous build ups;
(e)   install and maintain fire fighting equipment;
(f)   undertake inspection and monitoring of the facility during periods of extreme bush fire risk;
(g)   ensure different kinds of waste are not mixed together;
(h)   cover waste with cover material on regular basis;
(i)   manage green waste piles; and
(j)   manage combustible material to minimise risk of combustion.”

Before dealing with breach, the judge sought to identify the cause of the fire. Being unable to do so, he concluded that the Council could not be liable for the fire starting. In dealing with breach he therefore focused on factors relevant to the escape of the fire from the tip. After addressing the precautions individually, he found breach of duty in the following terms:

“[399] I consider that it was reasonable for a person in the position of the defendant to take the precautions identified in paragraphs (a), (b), (c) and (d) to prevent the spread of fire once ignited in the Tip.
[400] The plaintiff has proven, on the balance of probabilities, a breach of duty, with respect to escape, by the failure to sufficiently take those precautions against the risk of harm, namely, in the following areas: prepare and implement a fire management plan; create and maintain an effective firebreak; consolidate deposited waste into appropriate areas and remove fuel to prevent dangerous build ups.”

Despite these findings favourable to the plaintiff, the proceedings were dismissed on the basis that, in terms of s 5D(1)(a) of the Civil Liability Act, she had failed to demonstrate that the breaches of duty caused harm to her, the judge, stating:

“[408] In my view, the plaintiff has failed to prove, on the balance of probabilities, that the failure by the defendant to take the pleaded steps or precautions to prevent the spread of the fire caused the particular harm suffered by the plaintiff. In other words, the plaintiff has not demonstrated that, if the reasonable precautions were sufficiently taken, that the harm caused to the plaintiff by the spread of the fire would have been avoided. Hence, the plaintiff has failed to show factual causation, namely, the negligence was a necessary condition of the occurrence of the harm.”

Issues on appeal

The notice of appeal raised two issues. First, it alleged that although a sole probable cause of the fire might not have been established, the likely causes were all within the control of the Council and could have been averted had reasonable precautions been taken. Secondly, it alleged there was error in the finding that the plaintiff had failed to establish causation.
In the event that the appeal were to succeed, the plaintiff sought a judgment in an agreed amount, namely $104,400 plus interest. It would then be necessary to remit the matter to the Common Law Division to deal with the claims of group members. Because the judge dealt only with the plaintiff’s claim and did not finally dispose of the proceedings, the orders appealed from were interlocutory. Belatedly, the appellant sought leave to appeal, which was not opposed and should be granted.
The issues on the appeal were, however, not limited to those raised by the appellant. The Council filed a notice of contention challenging specific findings of the primary judge which were favourable to the plaintiff. Those findings were identified in 34 paragraphs which, taking into account subparagraphs, identified twice that number of alleged errors. Broadly speaking, the contentions constituted challenges to the findings:

that the Council owed the plaintiff a duty of care;

that the Council was in breach of its duty of care;

rejecting the Council’s defence under s 42 of the Civil Liability Act; and

rejecting the Council’s defence under s 43A of the Civil Liability Act.

The last two sets of contentions were not aptly described as “defences”; the sections identified factors relevant to both the establishment of a duty of care and the question of breach; they will be addressed in those contexts. Because issues relating to causation fell to be determined in accordance with the findings as to the scope and nature of the duty of care, and the basis upon which the Council was found to be in breach of that duty, the hearing of the appeal commenced with senior counsel for the Council addressing the issues raised by the notice of contention. These reasons follow the same order.
The statutory scheme under which the tip was managed at the date of the fire included the Crown Lands Act 1989 (NSW). That Act was repealed, with effect from 1 July 2018, by the Crown Land Management Act 2016 (NSW), Sch 8. The changes are not relevant to the determination of this case; these reasons address the law in effect in 2009.

Duty of care

(a) relevant considerations

The Council’s challenge to the finding that it owed a duty of care to the plaintiff was said to depend on eight separate errors made by the trial judge. These were that the judge erred (i) in holding that this was not a novel class of case; (ii) in holding that the operation of the tip was a dangerous activity; (iii) in identifying the risk of harm; (iv) in identifying a risk that was reasonably foreseeable; (v) in quantifying the significance of the risk; (vi) in assessing the extent of the Council’s control of the tip; (vii) in identifying the relationship between the Council and the plaintiff, and (viii) in disregarding the indeterminacy of the class of persons to whom the putative duty was owed.
Underlying these grounds were a number of contestable assumptions. The first was that questions of duty were to be resolved in accordance with general law principles, rather than having regard to the Civil Liability Act. That assumption was incorrect if stated in unqualified terms. The assumption is sometimes taken to follow from statements by the High Court in Adeels Palace Pty Ltd v Moubarak [2] that the heading to ss 5B and 5C of the Civil Liability Act, namely “Duty of care” is “apt to mislead.” [3] After setting out the provisions, the Court noted that both sections “are evidently directed to questions of breach of duty.” [4]
2. (2009) 239 CLR 420; [2009] HCA 48.
3. Adeels Palace at [13].
4. Ibid.

That conclusion does not, however, mean that the operation of the Civil Liability Act may be disregarded when considering whether, in a particular case, a duty of care is owed to a plaintiff. Thus, ss 5H and 5M deny the existence of a duty of care in circumstances to which they apply (being warning of obvious risks, and liability for recreational activity where a risk warning is given). Further, the Act identifies factors to be considered in determining whether a duty of care arises. Relevantly with respect to public authorities such as the Council, s 42 identifies principles to be taken into account in determining whether a public authority owes a duty of care. [5] Other provisions identify circumstances in which a person “does not incur a liability”, which may be ambivalent as to whether it operates with respect to duty, breach, or both. Furthermore, while factors in s 5B are directed to the question of breach, they may also be relevant to identifying a duty of care.
5. See also s 32 (dealing with the duty not to cause mental harm), and s 49 (dealing with the effect of intoxication on both the existence of a duty and its scope).
A second assumption was that particular principles apply in determining a “novel case”. This may derive from language adopted by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar. [6] If misunderstood, this language is apt to suggest that there is a special approach to be adopted towards novel cases. That would be inconsistent with well-established principle, expressed by Brennan J in Sutherland Shire Council v Heyman [7] in the following terms:

“It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’.”
6. (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102].
7. (1985) 157 CLR 424 at 481; [1985] HCA 41.

Importantly for present purposes, the non-exclusive list of “salient features” set out in Stavar at [103] do not include that feature which may be critical in the present case, namely the scope of the statutory duties imposed on a public authority.
The third assumption behind the Council’s submissions was that a duty defined at a high level of generality should not encompass persons who may be at an undefinable distance and in an unknown direction from the place where the Council’s conduct occurred. Gerogery, where the plaintiff lived, was some 11km from the Council tip; further, had the wind been blowing in a different direction, quite a different group of people and associated property would have been at risk. Yet the duty envisaged by the primary judge appeared to be unconstrained by such considerations and hence, according to the Council, failed to identify a determinate class of persons to whom the duty was owed.
In the course of oral submissions in this Court, the Council conceded that, as the occupier of property on which a fire may ignite, it owed a duty to neighbours (in the sense of those persons who lived or owned land in the proximity of the tip) to take reasonable care to prevent the ignition of a fire and to prevent its spread. [8] The submissions thus stressed the limiting effect of “indeterminacy” on the extent of the class to whom such a duty would be owed.
8. Tcpt, 26/02/19, p 11(5).
“Indeterminacy”, as a criterion for limiting the imposition of a duty of care was derived from the reasoning of the High Court in Perre v Apand Pty Ltd. [9] It is true that a duty of care should not be imposed by reference to an indeterminate class of persons. Indeed, such a step would undermine the principle that the law does not recognise an abstract duty not to harm any person by one’s carelessness, as opposed to a duty owed to identifiable individuals. [10]
9. (1999) 198 CLR 180; [1999] HCA 36.
10. Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [67] (Gaudron, McHugh, Gummow and Hayne JJ).
However, Perre v Apand was a case involving pure economic loss. The defendant in the proceedings was the supplier of seed potatoes to growers in South Australia, some of whom expected to export their crops, or part of their crops, to Western Australia. The seed potatoes supplied to a particular farmer in South Australia were infected by bacterial wilt. The plaintiffs were the owners of surrounding properties. None of their crops were affected by bacterial wilt, but they were unable to export their potatoes to Western Australia because a Western Australian regulation prohibited imports from farms within 20km of a property suffering bacterial wilt. The control devices required with respect to claims for pure economic loss, beyond the element of foreseeability, operate somewhat differently from the constraints on identifying a duty of care in cases of personal injury or physical damage to property. Further, as noted by Hayne J in Perre v Apand, the concept of “indeterminacy” means more than that the class is large or extensive, but rather that the persons who may fall within it cannot readily be identified. [11]
11. Perre v Apand at [336].
Nevertheless, in Electro Optic Systems Pty Ltd v State of New South Wales (Canberra Bushfires Case) [12] a Full Court of the ACT Supreme Court considered the scope of a duty said to be owed to a class described as “those persons who may suffer loss and damage from the spread of fire, in NSW or, in this case, the ACT”. Jagot J stated:

“[352] … As NSW submitted, such a duty is a duty owed to a class of persons the membership of which can be determined only after fire damage has been sustained. The fire could have spread from the Park in any direction. As with the Bendora fire to the south in the present case, having spread from the Park, the fire could have joined up with any fire and travelled in any direction, depending on the spread of that other fire. Properties to the north, south, east and west of the Park could have sustained damage as a result of the fire. The extent of the potential fire spread would have some practical limits, but those limits are unknown …. The duty of care posited by the primary judge is limited only by the potential for fire to damage properties in all directions radiating out from the Park for an unknown and perhaps unknowable distance.
[353] … It is not simply that the individual members of the class cannot be identified. The class itself is indeterminate. Membership may extend to property owners who are located in all directions from the Park to an unknowable extent depending on factors outside the defendant’s control …. The class may change from moment to moment depending on those other uncontrollable factors. These considerations also weigh heavily against the existence of the posited duty of care.”
12. (2014) 10 ACTLR 1; [2014] ACTCA 45 (Murrell CJ, Jagot and Katzmann JJ).

This reasoning was reflected in the Council’s submissions in the present appeal. However, it is fallacious to argue that a duty of care cannot arise if the members of the class to whom it is owed cannot be identified before the harm eventuates. There is no doubt that a motorist owes a duty of care to other road users; on the other hand, the membership of that class will be constantly changing. The same may be said of a manufacturer of bottled ginger beer and the manufacturer of chemicals who allows a polluting substance to leach into a groundwater system.
If it were necessary to be able to predict in advance who might be affected by a wild fire, it is doubtful that any duty of care would arise. Yet, as explained by Windeyer J in Hargrave v Goldman,[13] the law has long imposed a duty to exercise reasonable care on the owner of land upon which there is a fire of which the owner knows or ought to know, “if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished.” [14] Windeyer J continued: [15]

“Of course, if the fire were brought by him upon his land – in the sense of being started or intentionally kept alight there by him or anyone for whose acts he was responsible – his duty would not be merely to take reasonable care: it would be the strict duty of Rylands v Fletcher.”

The mere fact that it is not possible to predict in advance how far, or in what direction, a fire may spread is not the kind of indeterminacy which prevents the imposition of a duty of care.

13. (1963) 110 CLR 40; [1963] HCA 56.

14. Hargrave at 71.

15. Hargrave at 71-72.

It follows that, in so far as the Council (correctly) conceded that it owed a duty of care to landowners in the proximity of the tip with respect to the escape of fire from the tip, the question of remoteness was to be assessed as an element in considering (i) the precautions which should be taken (pursuant to ss 5B and 5C of the Act), (ii) whether factual causation was established and, if so, (iii) whether it was appropriate for the scope of the negligent person’s liability to extend to the harm so caused, pursuant to s 5D(1)(b).
A fourth assumption concerned the relevance of the proposition that the operation of a waste tip was a “dangerous activity”. The question whether the operation of the tip was correctly characterised as a dangerous activity depended on the legal significance of that characterisation.
In Burnie Port Authority vGeneral Jones Pty Ltd [16] the High Court identified two propositions of law which are significant in the present context. The first was that “any special rule relating to the liability of an occupier for fire escaping from his premises has been absorbed into, and qualified by, more general rules or principles.” [17] Secondly, the principle commonly sourced to the English decision of Rylandsv Fletcher,[18] as with special rules relating to fire, “should now been seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence.” [19] It follows that there is no separate principle depending on a finding that a dangerous substance has escaped from premises, or a dangerous activity has been carried on on premises, which has caused harm to the plaintiff. The nature of the substance or the activity may well affect the standard of care required of the occupier, and may give rise to a non-delegable duty of care. [20] That analysis, nevertheless, takes place within the confines of the law of negligence. It therefore follows that, so far as presently relevant, it will be governed by the Civil Liability Act.
16. (1994) 179 CLR 520; [1994] HCA 13.
17.    Burnie Port Authority at 530-531, 534.
18. Fletcher v Rylands (1866) LR 1 Ex 265; affirmed, Rylands v Fletcher (1868) LR 3 HL 330.
19.    Burnie Port Authority at 556.
20.    Burnie Port Authority at 555.
Consistently with this approach, the liability of public authorities in negligence, and the relevant control mechanisms, are addressed in Pt 5 of the Civil Liability Act. As noted above, s 42 deals with the approach to be taken with respect to the financial and other resources that were reasonably available to the Council for the purpose of exercising its functions. Although s 42 expressly applies to a determination that a public authority owes a duty of care, the Council’s reliance upon its operation was directed to questions of breach; that appears to be correct in the circumstances of this case and the section will be addressed in that context.

(b) statutory functions of Council

Subject to one qualification, a public authority will owe duties of care in carrying out its statutory functions. The qualification is that a common law duty of care cannot be imposed if it would conflict with the statutory scheme under which the respondent operates. So much was explained in Caledonian Collieries Ltd v Speirs, [21] which involved liability for a collision at a level crossing between runaway rail trucks and the respondent’s motor vehicle. The railway was constructed under statutory authority. Upholding the liability of the appellant railway operator, the majority in the High Court stated: [22]

“At least there is nothing in the Acts which can be interpreted as giving statutory authority for the precise state in which the appellant’s line was at the material time. It is not and could not be suggested that the absence of all provision for the protection of the Lambton Road level crossing from the irruption of runaway trucks was sanctioned by Parliament. On the assumption stated, the well-settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered ….”
21. (1957) 97 CLR 202; [1957] HCA 14.
22. Caledonian Collieries at 219-220 (Dixon CJ, McTiernan, Kitto and Taylor JJ).

This principle was restated more recently in Sullivan v Moody,[23] the High Court stating:

“[60] The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. … [W]hen public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
23. (2001) 207 CLR 562; [2001] HCA 59.

An inconsistency between a statutory power and the imposition of a common law duty of care in its exercise, may arise not merely from the language of the statute in question, but also from the nature of the power being conferred. It is therefore necessary to consider the nature of the Council’s interest in the land and the statutory provisions governing its use of the land.
The tip, with an area of 10 acres, was created on Crown land reserved from sale on 24 September 1913, “for night-soil and rubbish depot”. [24] On 11 November 1994 the reserve trust was dissolved and a new reserve trust created under s 92 of the Crown Lands Act 1989 (NSW). [25] The trust was named Culcairn Shire Council Crown Reserves Reserve Trust (“Reserve Trust”) and the Culcairn Shire Council was appointed trustee and “charged with the care, control and management” of the reserve. [26] (The trustee was later changed to the respondent, when the respondent replaced Culcairn Shire Council as the local government authority for the area including the tip.)
24. Reserve No 49,269; NSW Government Gazette (No 153), 24 September 1913, p 5927.
25. NSW Government Gazette (No 150), 11 November 1994, p 6703-6704.
26. Crown Lands Act, s 92(5).
The Reserve Trust was constituted as a corporation under s 92(2) of the Crown Lands Act and had all the functions of a council under the Local Government Act 1993 (NSW) in relation to public reserves. [27] The Reserve Trust was, for the purposes only of Pt 5 of the Crown Lands Act, the owner of an estate in fee simple in the reserve. [28] It therefore had the powers of a landowner, but qualified by the purpose for which the estate was conferred. [29]
27. Crown Lands Act, s 98(1).
28. Crown Lands Act, s 100(1).
29. Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 401, 409; City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162 (Rich ACJ), 168 (Williams J); [1940] HCA 35.
Turning to the provisions of the Local Government Act, s 24 empowers a council to provide such services and facilities and carry out such activities as are appropriate to the current and future needs of the local community. As the introductory notes to Ch 6 of the Local Government Act indicate, that will extend to waste removal services. It was not submitted that there was anything in the Crown Lands Act or Local Government Act which otherwise constrained the manner in which such services should be provided. Further, although there are licensing requirements with respect to “waste disposal” and “waste storage” under the Protection of the Environment Operations Act 1997 (NSW) (“Protection of the Environment Act”), it was common ground that those provisions did not apply to the Council with respect to the Walla Walla tip because of the limited nature of the operations at the tip. [30] (Although it would appear that the Reserve Trust was a statutory corporation representing the Crown in right of New South Wales, no proceedings were taken against the State pursuant to the Crown Proceedings Act 1988 (NSW).)
30. Protection of the Environment Act, s 48, s 5 scheduled activities and Sch 1, items 39 and 42.
There is a long history of statutory controls of fire on land in this State. More than 100 years ago, Parliament enacted the Careless Use of Fire Act 1912 (NSW). Whilst imposing controls with respect to the use of fire on occupiers of land, the Act preserved “the right of any person to sue for and recover, at common law or otherwise, compensation for or in respect of any damage or injury occasioned by the reckless or negligent use of fire.” [31] That legislation has been repealed and replaced, the current provisions being found in the Rural Fires Act 1997 (NSW). Relevantly, that Act provides:
31. Careless Use of Fire Act, s 9.

63   Duties of public authorities and owners and occupiers of land to prevent bush fires
(1)   It is the duty of a public authority to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire on or from:
(a)   any land vested in or under its control or management, or
(b)   any highway, road, street, land or thoroughfare, the maintenance of which is charged on the authority.
…
(3)   A public authority or owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section.
(4)   The Bush Fire Co-ordinating Committee may advise a person on whom a duty is imposed by this section of any steps (whether or not included in a bush fire risk management plan) that are necessary for the proper performance of the duty.
(5)   In this section:
notified steps means:
(a)   any steps that the Bush Fire Co-ordinating Committee advises a person to take under subsection (4), or
(b)   any steps that are included in a bush fire risk management plan applying to the land.

Further, controls are imposed on any person, including a public authority, lighting fires. However, special rules apply to a public authority:

95   Permit not required for fires lit by public authorities
(1)   Nothing in this Division requires a public authority or a person acting under the direction of a public authority to hold a permit to light a fire.
(2)   However, a public authority:
(a) must not light a fire in any area of an authority (or part of such an area) if it has been notified that a determination referred to in section 93(b) has been made in respect of the area, [32] and
(b)   must not light a fire in any rural fire district unless the fire control officer for the district has been advised that it is to be lit, and
(c)   must not light a fire on land in any fire district unless the officer in charge of the fire station that is nearest to the land has been advised that it is to be lit.
32. Section 93(b) refers to a determination of a fire authority that because of the seriousness of the bush fire danger, no permits will be issued.

Reference was made in the Canberra Bushfires Case to the operation of s 63. Jagot J (Murrell CJ and Katzmann J relevantly agreeing) held that s 63 was concerned with circumstances before a bushfire started. [33] That case was concerned with fires started by an electrical storm and allegations of negligence on the part of the Rural Fire Services, and the State through the actions of its “incident controllers”, in attempting to subdue and extinguish the fires. Reliance by the claimants on s 63 was held to be misplaced. By contrast, s 63 imposes duties which are engaged in the present case. However, there was no claim in the present case for damages based on a breach of statutory duty, as opposed to a breach of a common law duty of care. Nevertheless, the statute demonstrates that there is no inconsistency in principle between the proposed common law duty of care and the statutory functions exercised by the Council.
33. Canberra Bushfires Case at [177]-[178], [181]-[182].
The Council raised an issue as to the scope of the duty, and thus the persons to whom it was owed, by reference to the weather conditions on the day in question. It was, as described by the trial judge, a day of “extreme” fire danger. [34] At about the time the fire was first observed, the weather station at Albury Airport (33km south of the tip) recorded a temperature of 38.6ºC, 11% humidity and nor-nor-west winds at 35kph with gusts up to 54kph. An hour later (2.32pm) the conditions were almost identical; however, 14 minutes later (2.46pm) the temperature had dropped to 29.3ºC, but the winds had increased to 76kph with gusts up to 107kph.
34. Primary judgment at [24].
The Council did not suggest that, although it was a day of extreme fire danger, the conditions were unexpected in December. It is to be recalled that there is a statutory “bush fire danger period” in New South Wales which commences on 1 October of any given year and ends on 31 March in the following year. [35] The risk was undoubtedly foreseeable and significant.
35. Rural Fires Act, s 81.
There must also be a reasonable expectation that a fire would travel fast in such conditions. To the south of the tip lay a disused golf course, with long grass, beyond which were farmlands. Once it escaped from the tip, the risk of the fire travelling to Gerogery (11km) and beyond could not be described as other than foreseeable. If support were needed for such a conclusion, it might be found, at least by inference, in the power conferred on an authorised fire fighting officer to enter land within 8km of the land for which the officer is responsible, in order to suppress or prevent the spread of a bushfire from that land. [36] One local resident who saw the fire at the tip immediately rang a friend in Gerogery to warn him. Given the well-understood propensity of a fire to spread across lands covered with trees and dried grass in hot windy conditions, there is no reason to limit the duty of care of the Council to an area less than that covered by the fire in question.
36. Rural Fires Act, s 133.
The Council itself carried out burning operations at the tip in appropriate conditions to reduce the load of green waste and thus reduce the risk of fire. Indeed, the fact that there was a firebreak surrounding the tip was an acknowledgment of the possibility that a fire at the tip, if not contained, would cause damage to surrounding lands.
The Council’s challenge to the finding that it owed a duty of care to persons in the position of the plaintiff who lost property as a result of the fire must be rejected.

Standard of care: s 43A

Before addressing issues of breach, it is necessary to identify the standard of care required of the Council. The Council sought to invoke the high level of unreasonableness prescribed by s 43A of the Civil Liability Act, which provides as follows:

43A   Proceedings against public or other authorities for the exercise of special statutory powers
(1)   This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2)   A special statutory power is a power:
(a)   that is conferred by or under a statute, and
(b)   that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3)   For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

The first issue is whether s 43A is engaged in the present case. That involves two steps.
The first step is to identify the basis of the liability relied on by the plaintiff. That liability depended upon the failure of the Council to undertake identified precautions in the management of the tip. Those precautions included grading an appropriate firebreak around the tip, reducing the fuel load within the tip by levelling areas and removing long grass, and, with respect to the general waste dump, compacting the dump and covering it with soil from time to time.
The second step is to determine whether these activities involved the exercise of a power conferred by statute, of a kind that persons generally are not authorised to exercise without specific statutory authority.
On the one hand, it might be said that councils, as creatures of statute, have no powers other than those expressly or impliedly conferred by statute. However, there is a distinction to be drawn between activities which are reliant for their lawfulness on a statutory power and those which can be undertaken in accordance with the general law. [37] Such a distinction, important for determining the extent of a statutory immunity from suit, [38] was noted by Campbell JA in Refrigerated Roadways. [39] Thus, a council officer requires no statutory authority to drive a vehicle on a public road beyond the licensing requirements applicable to all drivers; whereas statutory authority is required for the erection of signs along a roadway, an activity which is prohibited except by or with the consent of the relevant roads authority. In the present case, the steps required to be taken on the tip were steps which could readily be taken by the owner or a person having management of the land for waste disposal purposes, without any specific statutory authority.
37. Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [254].
38. Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71.
39. Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [376] (Campbell JA, McColl JA agreeing and Sackville AJA agreeing with further reasons).
The same reasoning would operate with respect to s 48 of the Local Government Act, which confers powers of control on the Council with respect to public reserves. That provision conferred no specific authority with respect to conduct on the reserve, although the creation of the reserve would have restricted the activities which the Council could undertake on the land.
A third possibility is that the exercise by the Council of waste management functions might be governed by the licensing provisions of the Protection of the Environment Act. Again, it may be doubted that the conferral of authority to use the land in a particular way pursuant to a licence would engage a power with respect to the precautions identified above. The point need not be considered further, as it was common ground that the licensing requirements under the Protection of the Environment Act did not apply to the Walla Walla tip.
It follows that the precautions which the Council failed to undertake, upon which the liability identified above was based, did not involve the failure to exercise any special statutory power conferred on the Council. Accordingly, s 43A, and the special standard of care which it imposed, was not engaged in the present case.

Breach of duty – legal principles

(a) statutory scheme

On the basis that the Council’s duty was to take reasonable steps to prevent unintended fires at the tip, and to prevent the spread of fire from the tip, being a duty owed to the owners and occupiers of land in surrounding areas, it is then necessary to identify the precautions which a reasonable person in the Council’s position would have taken to prevent the harm materialising.
For this purpose, regard must be had to the matters identified in ss 5B and 5C of the Civil Liability Act, which provide:

5B   General principles
(1)   A person is not negligent in failing to take precautions against a risk of harm unless:
(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)   the risk was not insignificant, and
(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if care were not taken,
(b)   the likely seriousness of the harm,
(c)   the burden of taking precautions to avoid the risk of harm,
(d)   the social utility of the activity that creates the risk of harm.
5C   Other principles
In proceedings relating to liability for negligence:
(a)    the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)    the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)    the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

The risk of harm, the foreseeability of the risk, and whether the risk was not insignificant, have all been addressed in the preceding discussion with respect to duty. It must be accepted that the likely seriousness of the harm from an escaped fire was unpredictable but potentially very serious. Uncontrolled bush fires in south-eastern rural Australia are an annual occurrence; they may involve loss of life, the destruction of property and significant environmental damage.
Section 5B(2)(d) requires that the court assessing the relevant precautions have regard to the “social utility” of the activity that creates the risk of harm. The plaintiff did not submit that the tip should have been closed because of the risk of fire. Accordingly there was no need to assess the consequences of such a step, although it was in fact taken following the fire.
Importantly in this case, s 5B(2)(c) requires the Court to consider “the burden of taking precautions to avoid the risk of harm”. In undertaking that task, the court must consider the burden of taking precautions to avoid similar risks of harm for which the defendant may be responsible: s 5C(a). In the case of a public authority, there will often be a range of precautions which can be taken to minimise the risk of harm, at varying levels of cost to the authority and hence to the community. A reasonable council would assess the burden of particular precautions against the likely cost (not merely financial) of an escaped fire.
In addressing the burden of taking precautions, regard must be had to the terms of s 42 of the Act, which provides:

42   Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
(a)   the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b)   the general allocation of those resources by the authority is not open to challenge,
(c)   the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d)   the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

The following terms are defined in Pt 5 of the Act, which covers ss 40-46:

41 Definitions
In this Part:
exercise a function includes perform a duty.
function includes a power, authority or duty.
public or other authority means:
…
(d) a local council, ….

Generally speaking, the principles identified in s 42 will be relevant to the question of breach of duty, and probably less relevant to the existence of the duty. It is in the context of breach that s 42 is engaged for present purposes. However, there are a number of difficulties in applying that provision.
The drafting of s 42(a) is awkward. It is surely the resources available for the exercise of functions which are limited, not the functions themselves. The section appears to have been so understood in the cases discussed below. No alternative reading was proposed in this case.
The Council contended that the burden of taking precautions (for the purposes of s 5B(2)(c)) was to be assessed by reference to “the broad range” of the Council’s activities, as “the functions required to be exercised by the authority”: s 42(c). The Council read s 42(c) as requiring regard to be had to fire precautions on all land owned, managed or controlled by the Council across the 6,000 square kilometres of its local government area. This construction was said to gain support from the identification of the burden in s 5C(a) as including the burden of taking precautions to avoid “similar risks of harm” for which the Council may be responsible. It submitted that the risk of harm thus identified is the risk of escape of fire from any (and thus all) lands owned, occupied or controlled by the Council.
In one sense, that reading imposed a contextual limitation on the general language of s 42(c), because it limited the inquiry to the necessary precautions to address a single risk of harm, rather than “similar risks of harm”, as described in s 5C(a). Nevertheless, it also had the potential to expand significantly the scope of inquiry required in any negligence claim involving a public authority, beyond the circumstances of the plaintiff’s case.
The problems raised by the combined operation of ss 5B(2), 5C and 42 do not end there. In assessing the burden of particular precautions, the court is required to work on the principle that the performance of the duty of care is “limited by the financial and other resources that are reasonably available to [the Council]”: s 42(a). On one reading, the court is permitted (or required) to consider what resources are “reasonably available” in the particular case. However, that exercise is constrained by the principle that “the general allocation of those resources by the authority is not open to challenge”: s 42(b). This meant, the Council submitted, that the resources available to manage the tip were those in fact allocated by the Council in its budget. It was not open to the Court, the submission continued, to consider whether other funds available to the Council could reasonably have been allocated to meeting the cost of any necessary precautions.

(b) extrinsic materials

Given a degree of obscurity in establishing a coherent operation of these provisions, reference may be made to relevant extrinsic material. Broadly speaking, the Civil Liability Act gave effect to the Review of the Law of Negligence – Final Report (September 2002) (“Panel Report”). [40] Chapter 10 of the Panel Report, headed “Public Authorities”, addressed “the principles applied in negligence to limit the liability of public authorities.” The problem was identified in the following terms:

“10.3 The problem arises from the fact that the authority will have a limited budget at its disposal for the performance of its functions, and will have various calls on that budget. For this reason, it may want to argue, in answer to a negligence claim, that it made conscious, carefully considered decisions about the allocation of the budget between its various functions, and that without allocating more to the function in question, it could not have made the relevant place any safer than it was.”
40. Prepared for the Minister for Revenue and Assistant Treasurer by a panel chaired by the Hon David Ipp (“the Panel”).

The tension created by the requirement to have regard to available resources and the consequent need to assess what resources were available had been identified in Brodie v Singleton Shire Council. [41] That case involved a challenge to the general law principle that a road authority was not liable for nonfeasance, that is, for not repairing a defective roadway. Gleeson CJ (in dissent) noted the following consideration as weighing against the abandonment of the rule and the imposition of a duty to repair.

“[16] … The most obvious justification is the cost of complying with such a duty. Road maintenance and improvement involves, amongst other things, establishing priorities for the expenditure of scarce resources. Accountability for decisions about such priorities is usually regarded as a matter for the political, rather than the legal, process. Road safety involves issues of upgrading, and improving, as well as repairing, roads. As Mahoney AP pointed out in Hughes v Hunters Hill Municipal Council [42] , the appropriate response to dissatisfaction with the rule may be, not its abolition, but some modification "so that that which the council must do is more closely and directly accommodated to, for example, its financial resources, the exigencies of time and the competing demands of other works". If such considerations come to depend entirely upon judicial estimation, case by case, of the reasonableness of a council's public works programme, it is at least understandable that governments may think they have cause for concern. …
41. (2001) 206 CLR 512; [2001] HCA 29.
42. (1992) 29 NSWLR 232 at 236.

Implicit in that statement was the possibility that a roads authority should be able to justify its inactivity on the basis of its limited resources. So much was accepted by the majority in rejecting the general law immunity from liability for nonfeasance. The joint reasons of Gaudron, McHugh and Gummow JJ, noting that the change in the law would not subject roads authorities to “indeterminate financial hazards”, said that “financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care.” [43] However that step, as noted by Lord Hoffmann in Stovin v Wise,[44] “would inevitably expose the authority’s budgetary decisions to judicial inquiry.” There would be consequences, identified by Lord Hoffmann in the following terms: [45]

“This would distort the priorities of local authorities, which would be bound to try to play safe by increasing their spending on road improvements rather than risk enormous liabilities for personal injury accidents. They will spend less on education or social services.”

43. Brodie at [104].
44. [1996] AC 923 at 958.
45. Ibid.

In fact, this dilemma applied generally with respect to the exercise by public authorities of functions which were not the subject of a relevant immunity from the consequences of inaction. On the one hand, they should be allowed to justify their inaction on the basis of limited resources; on the other hand, they should not, by taking that course, expose their resource allocation decisions to judicial review. Part 5 of the Civil Liability Act, and in particular s 42, was a legislative response to that dilemma. [46]
46. See also M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019), p 32.
The remedy proposed was to make a good faith decision by the Council about the allocation of resources unchallengeable on a negligence claim; not to prevent the Council relying upon such a decision. That approach adopted a principle explained by Mason J in Sutherland Shire Council v Heyman in the following terms: [47]

“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”
47. (1985) 157 CLR 424 at 469; [1985] HCA 41.

The Panel Report identified a passage in the joint reasons of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council [48] as leading to “some undesirable consequences that need to be addressed.” [49] The troubling passage suggested that, in considering whether the authority had taken reasonable steps in the discharge of its duty of care, regard should be had to “any other competing or conflicting responsibility or commitments of the authority.” The problem, however, was not that the authority should be entitled to rely upon competing claims for resources, but rather that its decisions with respect to its allocation of resources should not be open to be questioned. The Panel Report concluded:

“10.11 In the view of the Panel, the canvassing in a negligence action of the sorts of issues raised in these examples is undesirable in at least three respects. First, courts are not well qualified, either in terms of expertise or procedure, to adjudicate upon the reasonableness of decisions that are essentially political in nature. Secondly, courts are inappropriate bodies to consider the reasonableness of such decisions because they are neither politically representative nor politically responsible. Thirdly, proper consideration of the reasonableness of such decisions may be very expensive and time consuming.”
48. Footnote 41 above, at [151].
49. Panel Report, par 10.6.

Despite these propositions, the Panel did not recommend that such policy decisions would “give immunity from liability.” [50] Rather, it adopted a standard that where the alleged negligence consisted of the exercise of a public function and the authority pleaded that its failure to take appropriate precautions was the result of a decision about the allocation of scarce resources, “liability can be imposed only if the decision was so unreasonable that no reasonable authority in the defendant’s position could have made it.” Thus, while the proposed standard of unreasonableness was to be raised to a high level, the issue was not sought to be removed from the scope of a negligence claim.
50. Panel Report, par 10.26.
The recommendation made by the Panel, however, reversed that language so that, instead of referring to what was in substance a defence, it referred to a claim based on the negligent performance of a public function, the principle being expressed in the following terms: [51]

“In any claim for damages for personal injury or death arising out of negligent performance or non-performance of a public function, a policy decision (that is, a decision based substantially on financial, economic, political or social factors or constraints) cannot be used to support a finding that the defendant was negligent unless it was so unreasonable that no reasonable public functionary in the defendant’s position could have made it.”
51. Panel Report, recommendation 39, p 158.

This recommendation was potentially difficult to apply because a standard claim in negligence, such as the present one, does not plead a “policy decision” to support a finding of negligence; rather, it identifies a precaution which might have been taken to avoid a specific risk of harm. Part 5 of the Civil Liability Act did not adopt the Panel’s recommendation 39, which invoked the concept of a “policy decision”, but rather applied the high standard (so unreasonable that no reasonable authority could have so acted) in relation to the exercise of “special statutory powers”: s 43A. It then created a new provision with respect to the allocation of resources, now found in s 42. Thus, while the broad thinking behind the Panel Report can be seen in the language of s 42, the Report itself provided no direct assistance in understanding the inter-relationship of ss 5B, 5C and 42.
The question is whether s 42 was intended to reflect the principle explained by Mason J in Heyman, or qualified it in some respect. It seems unlikely from the legislative history that s 42 was intended to expose public authorities to greater liability than they had previously faced. The better view is that it was intended to encapsulate the existing immunity, but did so in terms which failed to reflect the rationale underlying the principle.

(c) case law

The operation of s 42 of the Civil Liability Act (and equivalent provisions in other jurisdictions) has been considered in a number of cases. It is inevitable, however, that statements as to the operation of the provision will tend to reflect the nature of the particular case, the evidence adduced at trial and the manner in which each party presented its case. The judgment most commonly cited in subsequent authorities is Refrigerated Roadways. [52] The facts involved the death of an employee of Refrigerated Roadways caused by four men dropping a block of concrete from an elevated bridgeway (Glenlee Bridge) over a freeway, which smashed through the windscreen of a truck on the freeway, causing the death of the driver. The issue was whether the roads authority (RTA) was negligent in failing to construct screens along the overhead bridge to prevent objects falling (or being dropped or thrown) from the bridge onto the freeway below.
52. Footnote 39 above.
With respect to s 42(a), Campbell JA noted that the RTA had a budget for the care, control and management of freeways which was “so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget.” [53] Secondly, Campbell JA held that s 42(b) was not engaged to the extent that the claim concerned “the allocation of resources that the RTA had actually allocated to bridge screening”, on the basis that such a challenge would not be a challenge to the “general allocation of resources reasonably available to the RTA”, for the purposes of s 42(b). [54]
53. Refrigerated Roadways at [395].
54. Refrigerated Roadways at [401].
Given these findings, other aspects of the analysis of s 42 were not necessary for the determination of the points in issue.
For example, Campbell JA assumed that “s 42 is a matter that a defendant must plead”. [55] Although a defendant may be well advised to plead the facts and the inferences it seeks to draw for the purposes of s 42 from any relevant facts, the most important matter is the burden, at least with respect to adducing evidence, of the relevant factual material. Section 42 is not expressed in language creating a defence. This is consistent with the later statement in Refrigerated Roadways that “s 42 deals quite generally with the way one should proceed in deciding whether a public or other authority has a duty of care or has breached a duty of care”. [56]
55. Refrigerated Roadways at [385].
56. Refrigerated Roadways at [389].
Secondly, Campbell JA construed the expression “functions required to be exercised” by the authority as referring to the requirements of the law of negligence. That was to be compared with a “requirement in the nature of a statutory duty”. [57]
57. Ibid.
This reading is open to doubt. The implication is that par (a) should have read “the precautions required to be taken against a risk of harm in the exercise of any function of the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of complying with its duty of care”. That is not what par (a) states; a similar displacement of the language would be required also with respect to par (c). This construction of the “functions” referred to in pars (a) and (c) tends to limit the expansive definition of “function”, and “exercise” of a function, in s 41. There is a further reason for doubting its correctness: it would make little sense to identify the legal standard of taking reasonable care as a principle to be applied in determining whether there is a duty of care.
The fact that “the functions required to be exercised” are stated, in par (c), to be determined by reference to the broad range of the authority’s activities suggests that the function, in the present case, is waste management.
Thirdly, Campbell JA stated that “s 42 presupposes the existence of the law of negligence” and “is in the nature of a supplement or corrective to the pre-existing law of negligence, not a replacement for it or any part of it.” [58] This statement is not entirely consistent with the approach adopted above. On the one hand, to the extent that the determination of the existence of a duty of care is a matter for consideration under the common law, s 42 must be applied in its terms. On the other hand, so far as it applies with respect to determination of a breach of duty, it must be read coherently with ss 5B and 5C of the Act. That appears to be the approach adopted by Sackville AJA in Refrigerated Roadways in the following passage:

“[449] Subject to the effect of ss 42 and 43A of the Civil Liability Act, I see no compelling reason in the present case, whether deriving from distinctions sometimes drawn between policy and operational matters or otherwise, for the Court to shy away from undertaking the assessment contemplated by s 5B, in particular weighing up the matters identified in s 5B(2). This requires the Court to determine whether a reasonable person in the position of the RTA would have fenced the Glenlee Bridge notwithstanding competing claims on its resources to address similar risks of serious injury elsewhere.”
58. Refrigerated Roadways at [388].

Fourthly, Campbell JA considered that it was open to the Court, without undertaking a challenge to the “general allocation” of resources by the RTA, to consider a negligent exercise of its functions in fixing priorities for the allocation of its resources with respect to the construction of screens along overpasses on freeways. [59]
59. Refrigerated Roadways at [401].
There is no doubt that the scope of the phrase “the general allocation of those resources” is unclear. On one view, s 42(b) and (c) are directed squarely to the constraining effect of the imprecise dichotomy between policy and operational decision-making referred to by Sackville AJA in the passage set out above. [60] There would be a difficulty in abandoning this distinction whilst preserving the ability of a public authority to rely upon its limited resources.
60. See Anns v Merton London Borough Council [1978] AC 728, a distinction abandoned in Murphy v Brentwood District Council [1991] 1 AC 398.
Although it is true that the passages considered above in Refrigerated Roadways were cited with approval by this Court in Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson,[61] it was only in support of the proposition that evidence was required before the Court could engage with the principles in s 42. The present considerations were immaterial in that context.
61. [2012] NSWCA 340; 191 LGERA 182 at [48]-[50] (Hoeben JA, Meagher JA and Tobias AJA agreeing).
More directly on point was the decision in Holroyd City Council v Zaiter. [62] Those proceedings involved a claim by a child who had ridden a bicycle into a concrete drainage channel at a sports ground controlled by the appellant Council. The Council was aware of the risk and had, prior to the accident, identified the desirability of a fence along the channel to prevent such an accident. The Council called evidence as to the limited financial resources available to it in order to resist a finding that it was in breach of its duty of care. The Council failed for three reasons. [63]
62. [2014] NSWCA 109; 199 LGERA 319 (Hoeben, Emmett and Gleeson JJA).
63. Zaiter at [97]-[100].
The first reason involved a denial of the proposition that there could be a challenge to the allocation of funds for improvements to the sports ground, such a step being contrary to s 42(b). After setting out a lengthy passage from the reasoning of Campbell JA in Refrigerated Roadways, Hoeben JA stated:

“[97] The analysis by Campbell JA is contrary to the appellant's submission that once it had determined that the sole source of funding for improvements to the sports ground was to be the revenue from the advertising pole sign, that was a ‘general allocation of resources’ which could not be challenged. In accordance with the reasoning of Campbell JA (and I might add the clear meaning of the section), such a decision by the appellant was properly to be looked at as part of the ‘general allocation’ under either the heading of ‘public order and safety health’ or ‘recreation and culture’ which were the headings used by the appellant in its financial statements. As I read the judgment of Campbell JA and the section, the general allocation of monies by the appellant to such functions cannot be challenged, but the allocation within those functions can. In other words, the reasonableness of a decision that the revenue from the advertising pole sign is to be the sole source of funding for the sports ground is not protected by the provisions of s 42(b) and is subject to challenge.”

The second basis in Zaiter for rejecting the Council’s reliance upon s 42 was that the decision of the Council, as recorded in a documented policy, was that the revenue from the particular source was to be directed solely to the sports ground, but not that it would be the only source of revenue for the sports ground. [64] (That reasoning has application in the present case.)
64. Zaiter at [99].
The third ground was that the financial statements of the Council in evidence revealed that “ample funds were available within various general allocations to pay for this fence”. Alternatively, at best for the Council, the evidence failed to show that funds were not available.
The second two grounds (based on the evidence) would have been sufficient to dispose of the appeal on this point, and appear to have been the only grounds relied upon by Emmett JA. [65] The first ground depended upon a narrow construction of s 42(b), namely that the “general allocation” of resources by an authority is to be understood, either as the separate functions of the authority identified by its activities, or according to the characterisation of the separate functions in such financial statements of the authority as are in evidence.
65. Zaiter at [115].
There is an available alternative approach to the statutory language. If “general” in relation to an allocation of funds is intended to be contrasted with “specific” allocations, the purpose of the provision is obscure. If, as explained by Mason J in Heyman, and by the reasoning in the Panel Report, the purpose is to exclude from judicial review in a tort claim financial decisions based on policy grounds, the distinction between general and specific policy decisions is misconceived.
The better understanding of s 42(b), consistently with its underlying policy, is that the Council may rely upon the limited resources available to it based on evidence that, at the relevant time, there were insufficient (or no) funds which had not been allocated to other purposes. If the evidence did establish that situation, the plaintiff would be precluded from challenging the basis of the allocations. No such issue arose in Zaiter; nor did it arise in Refrigerated Roadways.
The decision of the Council in Zaiter was located in the minute of a Council motion which commenced: [66]

“That Council pronounce as policy, that all income derived from the commercial pole sign located at the Holroyd Sportsground be directed at ….”

A challenge to that decision would have involved the allocation of the identified income to a different purpose; that was not the point in issue in Zaiter. Rather, as the Court found, the question was whether there were sufficient unallocated funds available to meet the cost of the fencing. The conclusion that there were such funds involved no challenge to a policy decision of the Council, whether general or specific.

66. Zaiter at [98].

The proposition in Refrigerated Roadways that a court could consider whether the authority had “made careless factual errors in the way it prioritised overpasses for screening”, so that absent such errors the bridge in question would probably have been screened before the incident occurred, would only have arisen “if” that allegation had been made. [67] The reasoning in Refrigerated Roadways was based on a hypothetical pleading.
67. Refrigerated Roadways at [401].
Whether these dicta in Refrigerated Roadways should be followed should await a case in which the answer will be dispositive. In this case, as in Zaiter’s case, the evidence did not disclose that there were insufficient unallocated funds to undertake the relevant precautions at the tip, as discussed below.

(d) summary of principles

Against this background, it is convenient to reconsider the operation of the provisions of the Civil Liability Act set out above. The following propositions may be accepted.
First, the requirement in ss 5B(2)(c) and 5C(a) that the court consider “the burden of taking precautions” refers, in relation to a public authority, to the allocation of necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c).
Secondly, that assessment must take into account the additional burden which would be required to avoid “similar risks of harm” in other activities conducted by the authority: s 5C(a).
Thirdly, in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are “limited”: s 42(a). That is not to say that the court cannot find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff’s case, is undertaken in accordance with s 5C(a).
Fourthly, the reference to “functions required to be exercised by the authority” in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). The phrase “the broad range of its activities” in s 42(c) would not, in the present case, require reference to the activities of the Council in maintaining libraries, roads or other services with no direct relationship to the operation of waste management sites. Nor would it include management of Council lands not used for waste disposal.

157. Primary Judgment at [400]. See also at [321].

In my opinion, subject to the Council’s reliance on s 42 of the Civil Liability Act, [158] the evidence amply supports the primary Judge’s findings as to breach of the duty to exercise reasonable care to prevent the escape of fire from the Tip.
158. See at [238] below.

Causation

I agree with Basten JA that the primary Judge erred in his approach to causation. The correct question to ask was whether on the balance of probabilities the fire would have been contained within the boundaries of the Tip had the Council taken the precautions required in the exercise of reasonable care.
The Council submitted that even if the correct question is asked the appellant cannot succeed on the issue of causation. According to Mr Sheldon SC, who appeared with Mr Barnett for the Council, the evidence does not justify a finding that the Council’s failure to take precautions against the spread of fire was a necessary condition of the occurrence of the harm suffered by the appellant. [159] Mr Sheldon relied in particular on the equivocal answer given in the joint report of the experts as to whether the precautions that should have been taken by the Council were likely to have prevented the spread of the fire.
159. Civil Liability Act s 5D(1)(a).
The experts were asked to identify which of the measures that should have been employed would have stopped the fire from spreading. The joint report recorded the experts’ view that in the absence of fire fighting equipment on site:

“the other measures would have slowed the development of the fire, but the particular wind conditions at any time would be very important. If the prevailing wind conditions did not cause a quick spread of the fire, the slowing effect of the other measures might have bought sufficient time for fire fighters to successfully intervene.”

The significance of this equivocal response by the experts in the joint report is diminished by two factors. The first is that the experts were apparently not asked to make any assumption about the speed with which the fire fighters would have arrived at the Tip, once the fire had started and had been reported to the authorities.
The primary Judge found that Mr Pumpa, who owned a property to the immediate north of the Tip, saw smoke coming from the Tip at 1.35 pm on the day of the fire. [160] Mr Grosse, who was working in Walla Walla, around three kilometres north of the Tip, saw smoke at about the same time. He reported the fire to the Fire Control Centre in Albury at 1.38 pm and at 1.40 pm Mr Grosse received a circular message on his telephone alerting all Rural Fire Service members of the fire at the Tip. [161] Mr Grosse immediately drove to the Fire Station in Walla Walla. He and Captain Jacob of the Walla Walla Fire Brigade drove in a fire truck to the Tip arriving at the road gate at or about 1.45 pm. [162] This was about ten minutes after Mr Grosse had first noticed smoke.
160. Primary Judgment at [28].
161. Primary Judgment at [32].
162. Primary Judgment at [33].
The primary Judge described what then happened: [163]

“Mr Grosse was the first to arrive at the Tip, together with Captain Jacob, to undertake fire fighting duties; they had a truck and fire fighting equipment. The road gate was locked. At this stage, Mr Grosse could not see where the fire had progressed to. Captain Jacob used bolt cutters to cut the lock (this took approximately 30-60 seconds) and they drove down to the tip entrance, being approximately 500 metres down the dirt road. Mr Grosse gave evidence that ‘[w]e were the only fire unit fighting the fire within the confines of the Tip. The other Walla Walla fire unit went to the opposite side of the fire to us”.
163. Primary Judgment at [38].

His Honour was comfortably satisfied that upon arriving at the Tip Mr Groose observed that the fire had escaped the Tip and was heading at a rapid pace through the tall grass within the neighbouring disused golf course towards the Walla Walla-Jindera Road. [164] This had required the fire to travel from the north-west section of the Tip, where the fire had started, across about 150 metres to the south east boundary of the Tip.
164. Primary Judgment at [45].
The records of the Walla Walla Fire Brigade show that two other fire trucks left the Fire Station at approximately 1.55 pm and 2.05 pm. His Honour found that further fire units “arrived” after 2.00 pm but they apparently did not proceed directly to the Tip. Instead they joined residents in defending the properties adjacent to the Tip because the fire had already escaped. [165]
165. Primary Judgment at [49].
The evidence suggests that once the fire had been detected at least one fire fighting unit would have arrived at the Tip within ten to fifteen minutes. Had the fire not already spread and demanded attention from fire fighters beyond the boundaries of the Tip, other fire fighting units would have arrived at the Tip a short time later.
The second matter diminishing the force of the joint experts’ report is the oral evidence given by the experts when the issue was revisited at length during the trial. Their evidence indicates that the relatively simply precaution of slashing the cured grass and removing dead timber so as to minimise the fuel load would have made a very substantial difference to the progression of the fire, regardless of how it started. The primary Judge found on the basis of the expert evidence that fuel load is an important factor in the spread of fire and that the removal of combustible material including cured grass [166] retards the expansion of fire, thereby allowing fire crews a greater opportunity to intervene. [167] It is convenient to refer to some of the evidence underpinning this finding.
166. That is, dried out grass with a heightened potential for fire to ignite or spread.
167. Primary Judgment at [364].
Dr Green, the Council’s expert, said that in order for a fire to spread there had to be combustible material in its path. The fire can spread either by “spotting”, as it jumps from one combustible area to another, or by radiation if the fire is hot enough. He said that flame length and fuel load is important for fire spread between different areas. Since conditions within land used as a tip are likely to vary:

“You do want to keep the loads down as much as possible and have good separation”.

Dr Green also gave the following evidence:

“TOBIN: Once it got up there, its radiant heat or its connection by combustible material would then cause it to continue?
WITNESS GREEN: Yes.
TOBIN: If it were a grass fire, it would run quicker than if it were a refuse fire,
is that correct?
WITNESS GREEN: That's correct, yes.
TOBIN: That's because the grass leans over with the wind and it's high flammability or combustibility, I suppose?
WITNESS GREEN: It still depends on the amount of grass and the height of grass. I mean there is a vast difference between something that's knee height and something that's 2 metres in height in the, in the rate of spread because you've got vastly different fuel loads.
TOBIN: Then once it gets from that point into the grass, the rate of which it will spread in the grass is dependent upon a number of factors but in particular the combustibility of the grass and the volume of the grass?
WITNESS GREEN: Well, it tends to be determined in terms of fuel weight. In
a, in a lot of—
TOBIN: When you say "fuel weight"—
WITNESS GREEN: That is the amount of fuel per hectare.
TOBIN: But it's not only the - it's the condition of it?
WITNESS GREEN: Yes, whether it's dry or whether it's wet and things like that.
TOBIN: When you have various forms of grasses, certain grasses are much
more flammable than other grasses, aren't they?
WITNESS GREEN: Only in the sense that the combustibility depends on their dryness.
…
TOBIN: Dr Green, with the reduction of fuel, grass fuel, whether it be by a way of slashing, controlled burning or chemical reduction, the rate and intensity of spread will lessen; is that correct?
WITNESS GREEN: You’d expect so, yes.
TOBIN: The prospect of it spotting will also lessen?
WITNESS GREEN: It depends on the type of grass as you’ve already indicated.
TOBIN: If the grass is slashed, there’s no heads and it’s 6 inches long you’ve heard what Mr Crowe says about the heads being the source of the spotting, there’d be little prospect of spotting?
WITNESS GREEN: Yes.” (Emphasis added.)

Dr Green estimated on the basis of photographs taken at the Tip that the fuel load in the form of long grass was about four tonnes per hectare. He accepted in his cross-examination, however, that his estimate was based on grass being about knee high and being new grass for that season. He also accepted that if the grass was in fact a metre tall and included thatch from previous seasons, the fuel load would be much greater, probably leading him to double his previous estimate. Basten JA has referred to the evidence describing the extent and nature of the vegetation at the time of the fire, with cured grass in parts of the Tip up to waist high. [168]
168. See at [157] above.
When Dr Green was asked about the effectiveness of the firebreak, the following exchange occurred:

“TOBIN: A fire that is running in short grass is a fire that a firebreak is more effective against than a fire that is in long grass; is that correct?
WITNESS GREEN: It depends on the width of the firebreak but in principle, yes.
TOBIN: It’s more effective, it may not be totally effective. There’s more chance, even if it’s only 1 metre wide, if the grass is short than if the grass is long; is that correct?
WITNESS GREEN: Yes.
TOBIN: The firebreak has to be a clear firebreak?
WITNESS GREEN: Well, it has to be a non-continuous fuel between one side and the other.” (Emphasis added.)

Mr Crowe, an expert in bushfire investigations, was asked to elaborate on the differences of opinion among the experts as to the risk of fuel igniting and spreading. His response was that:

“my view and I think Mr Nystrom’s as well … was that the presence of grass alone provided the wick for a fire to travel from one zone to another and then ultimately out of the tip area. The fact that it was present on a windy day and with burning on a windy day aided that process and I think I don’t change my, my view of that, that at all.”

Mr Crowe gave the following evidence:

“TOBIN: Mr Crowe, in relation to the fuel at the tip, what was the potential for the fuel that you understood existed at the tip to cause or spread fire? Firstly, in relation to grasses, you've seen the photographs … those on 1 October. The evidence is that there is phalaris, wild oats, barley grass and wire grass and the evidence also is that there has been no interference with the growth area except, perhaps, the fire in 2003/2004. What would you say as to that being a fuel for the propagation and spread of fire?
WITNESS CROWE: Ideal. It's where all the ducks line up, if you wish. It's fully cured, if there's been accumulation of thatch from previous year's growth over that period then the quantity of fuel is a lot more than is originally perceived because there's a lot at ground level that is dead fuel and therefore available to burn and, and very volatile, readily ignite with the smallest of ignition.
TOBIN: If it does ignite by way of, let's say, some form of spotting, does it immediately develop into a large fire or does it take time to develop?
WITNESS CROWE: The time factor is a factor of fuel moisture content, which is, in turn, connected with relevant humidity and exposure to wind and the like. So the thatch itself may well be more moist than the standing grass but in the context of that, it's seconds in most circumstances rather than minutes.
TOBIN: If you were to compare the capacity of that fuel to ignite and to propagate a fire compared with cut grass, so let's assume it was even bale in the end of November, what would the chance if something fell onto cut grass be for the propagation of a fire?
WITNESS CROWE: Once again, if cured it would light - ignite and the rate of spread would be less because the height of the grass in a natural state, for want of a better term, not grazed, not cut, not treated, contributes to flame height, whereas the cut grass would be less.
TOBIN: If it were cut grass - so if it is - the grass, as you understand it, if it does ignite, does that have a potential to spot?
WITNESS CROWE: With the seeds intact, yes, short distance spotting.
TOBIN: Would cut grass have the potential to spot?
WITNESS CROWE: No, no.” (Emphasis added.)

Mr Nystrom, a former police officer with extensive experience in fire investigations, gave similar evidence:

“WITNESS NYSTROM: I think Cheney and McArthur's work focuses on grassland fires as opposed to rubbish tip fires so we're not talking, here, so much about grass being on fire, other than the grass which was fuelled within the tip, which, in my view, was the problem. If there was no fuel between the piles of material over the distance of - I think it was about a couple of hundred metres in length of the tip, then a fire starting in the pile of general waste might never have spread out of the tip because it didn't have anything to burn beyond the actual mound of general waste itself.
By removing the combustible matter from around the general waste and creating a sufficient clear area, all you're really doing is buying time, so that when people are aware from the smoke column that there is a fire, there is time, then, for the emergency service to arrive and try to put out the fire. An ember that is lifted up from an incipient fire in rubbish, well, it - embers are not lifted up from an incipient fire, it does take time for the smoke - I beg your pardon, for the column to actually create the convective current that's required to uplift anything out of that, so that does take time. Once it is uplifted, the target downstream here would be concrete, glass, tyres, none of which is going to be ignited by a single ember uplifted from a plume out of general waste, albeit cardboard or paper. The problem is that if there is green - sorry, if there is dead vegetation around it, dry grass or leaves and so on, those things will be uplifted when they catch fire and create their own fire, their own fire weather.
…
WITNESS NYSTROM: I think that the, the fuel issue is a, a, quite a consideration. My view is that there shouldn’t be grass and trees in dump sites simply because of the, the, the hazard that it poses.
TOBIN: If there were but the grass were short, from your experience in the behaviour of fires, what’s the prospect of that being inhibited by a well designed firebreak?
WITNESS NYSTROM: Short grass is going to burn in a substantially more slowly than is tall grass. A firebreak is a tool that is effective under the conditions, can be effective under the conditions, with short grass it’s far more effective than with tall grass.” (Emphasis added)

There is much to be said for the proposition that slashing or removing long grass between the piles of waste and the perimeter of the Tip at or shortly before the start of summer would have been enough of itself to have prevented the fire escaping from the Tip. The evidence of the experts strongly suggests that drastically reducing the combustible fuel load would have been likely to show the progress of any fire to a very considerable extent. Given that the alert members of the Fire Brigade would have arrived at the Tip within ten to fifteen minutes of the alarm being raised (with other units to follow shortly thereafter), it would seem quite likely that the fire could have been prevented from escaping the boundaries of the Tip and reaching highly flammable vegetation to the south east.
As has been seen, the primary Judge found that the exercise of reasonable care required the Council to take other precautions as well to prevent the escape of fire from the Tip. These included:

covering waste with inert material at regular intervals; and

keeping the firebreak clear and maintaining it in reasonable condition.

The primary Judge found that by December 2009 the firebreak at the perimeter of the Tip was “cured and dry and totally inaccessible to vehicles”. [169] His Honour appeared to accept the evidence of Mr Hunter, a resident of Walla Walla who was familiar with the Tip, as to the condition of the firebreak. Mr Hunter said that the firebreak had a lot of vegetation scattered across it, together with fallen “rubbish”, small branches and even large branches. [170]
169. Primary Judgment at [334].
170. Primary Judgment at [334(5)].
If the Council had taken the extra precautions identified by the primary Judge, the conclusion that the fire probably would not have escaped the Tip is reinforced. The oral evidence of the experts supports this conclusion as does the evidence of the rapid response of the fire fighters when the alarm was raised.
In my opinion the appellant has established on the balance of probabilities that if the Council had:

slashed or removed the long grass between the piles of waste and the perimeter of the Tip;

covered waste with inert material at regular intervals; and

kept the firebreak clear and maintained it in reasonable condition,

a fire ignited on the Tip would not have escaped the boundaries of the Tip.

Civil Liability Act s 42

The Council invoked s 42 of the Civil Liability Act in support of its contention that it did not breach the duty of care owed to the appellant. [171]
171. Section 42 of the Civil Liability Act is reproduced at [56] above.
In assessing the burden that taking these actions would have imposed on the Council it is necessary to bear in mind that the Council’s breaches of duty were longstanding. For example, Mr Davies, the Council’s former Director of Environment and Planning, accepted that the firebreak at the Tip should have been graded along its existing alignment in about August of each year. Had that been done, the work required to grade the firebreak in August 2009 would have been straightforward and modest in scope.
Much the same can be said about covering inert waste. Mr Davies explained that there was a lack of fill at the Tip itself because of the waste buried but near the surface. Thus soil had to be obtained “opportunistically” from other sources, for example from roadworks. Had the Council planned for regular covering of inert material, it is fair to infer that the problem (and cost) of locating fill would have been minimised.
There was evidence that the unevenness of the ground in some areas of the Tip impeded vehicular access and restricted the Council’s capacity to slash the long grass. However Mr Davies acknowledged that there were no stone or rock barriers to clearing the ground. He accepted that there would not be “that big a cost” in putting a bulldozer into the Tip to flatten out an area of, say, 60 metres by 30 metres. Moreover, had the Council fulfilled its duty of care it would have undertaken at least part of the necessary work earlier and would not have been forced to undertake the work wholly within the 2009-2010 financial year.
As Basten JA has pointed out, the Council had a waste management reserve of $51,000 as at 30 June 2009. [172] The evidence justifies a finding that the cost of the measures that the Council should have taken to minimise the risk of fire escaping from the Tip would have been modest and would have absorbed only a relatively small proportion of the reserve in 2009-2010. The primary Judge made no finding that the cost of the measures would have been any greater. Nor did he make a finding that the cost would have materially adversely affected the Council’s conduct of other waste management depots. Indeed there was evidence that the budget for the maintenance of the Council’s waste management depots had been underspent in the 2008-2009 financial year.
172. See at [174] above.
In these circumstances I consider the Council’s reliance on s 42 of the Civil Liability Act to be misplaced. The Council itself allocated funds to the waste management reserve. Looking to that reserve as a source of funds for the precautions reasonably required in no way challenges the “general allocation of [financial and other] resources” by the Council. [173] The precautions could and should have been taken within the resources reasonably available to the Council for the purpose of discharging waste disposal functions. [174] The taking of the precaution would not have had a significant or even minor impact on the Council’s broad range of activities. [175]
173. Civil Liability Act s 42(b).
174. Civil Liability Act s 42(c).
175. Civil Liability Act s 42(a).

I should add that the evidence to which I have referred supports the primary Judge’s finding that the precautions required to avoid the risk of harm did not impose an undue burden on the Council.
It will be apparent that I do not think that it is necessary in this case to undertake a detailed analysis of the construction of s 42 or its relationship with s 5B of the Civil Liability Act.

**********

Endnotes

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(d) the social utility of the activity that creates the risk of harm.”

Amendments

18 April 2019 - [171] second sentence, deleting "untied" and amending total to read "$9.29m".

25 February 2020 - [12] and Coversheet - corrected name of Crown Land Management Act.

[38] Added "to" before "107kph."

[80] Replaced "weighting" with "weighing" in quote.

[83] and Coversheet - corrected case name of Bathurst Regional Council case.

[101] Deleted "than" between "comparison with" and "a broader reading".

[121], fn 84 - Replacing "Panel Report" with "Preliminary Report".

[131] Corrected spelling of "meteorological".

[153] Deleted "a" between "the passage of" and "two vehicles".

[158] Deleted "both" between "long grass" and "between the various".

Details

AGLC: Weber v Greater Hume Shire Council [2019] NSWCA 74
Case: [2019] NSWCA 74
Decision Date: 17 April 2019

CaseChat Overview and Summary

In *Weber v Greater Hume Shire Council*, the New South Wales Court of Appeal considered an appeal by Sharon Patricia Weber, as representative plaintiff, against the Greater Hume Shire Council concerning a fire that escaped from the Council's waste disposal tip. The plaintiff alleged the Council was negligent in its operation of the tip, leading to the escape of fire and subsequent damage.

The Court was required to determine whether the Council owed a duty of care to the plaintiff and other landowners in the vicinity of the tip, and if so, whether that duty had been breached. Key issues included whether the Council had taken adequate precautions to prevent the escape of fire, considering its statutory powers and the allocation of its financial resources, and whether any breaches of duty caused the plaintiff's loss. The Court also considered the application of section 43A of the *Civil Liability Act 2002* (NSW), which relates to the exercise of statutory authority.

The Court of Appeal found that the Council did owe a duty of care and that its actions and omissions constituted a breach of that duty. Applying the principles of negligence, the Court reasoned that the Council had failed to implement reasonable precautions to manage the risk of fire escaping from the tip, despite being aware of the potential danger. The Court considered the Council's financial resources under section 42 of the *Civil Liability Act 2002* (NSW) but concluded that the failure to take basic precautions was unreasonable. The Court also found that the breaches of duty were a probable cause of the plaintiff's damage.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the previous orders. Judgment was entered for the plaintiff against the Council in the amount of $104,400 plus interest, with the Council ordered to pay the plaintiff's costs of the trial of the common issues. The proceedings were remitted to the Common Law Division to address outstanding matters.

Orders

Orders of the court

(1) Grant Sharon Patricia Weber leave to appeal from the judgment and orders in the Common Law Division;

(2) Allow the appeal and set aside orders made on 14 May 2018; in their place make the following orders –

(a) Give judgment for the representative plaintiff, Sharon Patricia Weber, against the defendant, Greater Hume Shire Council, in the amount of $104,400 plus interest;

(b) Order that the defendant pay the plaintiff’s costs of the trial of the common issues;

(c) Remit the proceedings to the Common Law Division to deal with the outstanding issues in the representative proceedings.

(3) Order that the respondent pay the appellant’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Weber v Greater Hume Shire Council [2019] NSWCA 74

Most Recent Citation

Cabinets by Webb Pty Ltd v Creasy [2025] VCC 910

Cases Citing This Decision

Trampolines R Great Pty Ltd v Jalco Group Pty Ltd [2024] NSWSC 1644
Citation 1 (Para 12)

…The breadth of that proposition may be doubted (see, for example, the discussion in Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 at [112]ff), but it is unnecessary to dwell upon it in an application such as this.…
Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW [2024] NSWCA 227
Citation 2

…Bonding Ltd [2014] 1 NZLR 91; [2013] NZSC 89 Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: D Nolan and A Robertson (eds) Rights and Private…
Fairfield City Council v Bastow Civil Constructions Pty Ltd [2023] NSWSC 1143
Citation 3 (Para 46)

…orities the focus of which was the application of s 43A of the Civil Liability Act , including Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 (“ Weber ”) at [44]-[50]; Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 (“ Gales ”) at [195]-[197]; Curtis v Har…
Reeves v State of New South Wales [2023] NSWDC 196
Citation 4 (Para 249)

…se reasons, the State did not rely upon and particularise the matter referred to in s 113(1)(b) of the LEPRA . 25. Weber v Greater Hume Shire Council (2019) 100 NSWLR 1 per Basten JA (Gleeson JA and Sackville AJA) at [47]…
Moore v Ballina Shire Council [2022] NSWDC 691
Citation 5 (Para 71)

…CRM matters. In terms of section 5C and the reference to similar risks of harm, plaintiff argues with reference to Weber v Greater Hume Shire Council [2019] NSWCA 74 that there is no evidence of any similar risk of harm existing by reason of the presence of any other bollard. It may be argued that a similar risk o…
Pietrobelli v Jewell Family Nominees Pty Ltd [2022] NSWSC 660
Citation 6

…Council v Ferreira [2005] NSWCA 418 Waverley Council v Lodge [2001] NSWCA 439 Weber v Greater Hume Shire Council [2019] NSWCA 74 Wilkinson v Law Courts Ltd [2011] NSWCA 196 Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: WD Dun…
Pike v Coles Supermarkets Australia Pty Ltd; Pike v Solomon [2021] NSWSC 1492
Citation 7

…uncil v Lodge [2001] NSWCA 439 Weber v Greater Hume Shire Council [2018] NSWSC 667 Weber v Greater Hume Shire Council [2019] NSWCA 74 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Category: Principal judgment Parties: 2017/269748 Jacqueline Christina Pike (Plaintiff) Coles Supermarkets Australia Pty Ltd (De…
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560
Citation 8

…cil (1963) 110 CLR 74 Walton v Gardiner (1993) 177 CLR 378 Weber v Greater Hume Shire Council (2019) 100 NSWLR 1 Weld v The Gas-Light Company (1816) 171 ER 442 Wellesley v Duke of Beaufort (1827) 38 ER 236 Wellesley v Wellesley (1828) 4 ER 1078 William Aldred’s Case (1610) 77 ER 816 Wollongong City Council v Fregnan…
Woodhouse v Fitzgerald [2021] NSWCA 54
Citation 9 (Para 44)

…adopted in Weber v Greater Hume Shire Council . [34] 32. Burnie Port Authority at 533. 33. Burnie Port Authority at 555. 34. (2019) 100 NSWLR 1; [2019] NSWCA 74 at [26]-[27], [35] (in my judgment, Gleeson JA agreeing) and at [203]-[205] (Sackville AJA).…
Coffs Harbour City Council v Polglase [2020] NSWCA 265
Citation 10 (Para 65)

…02) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437 at [90] and Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 at [33]. The limited nature of the deemed estate in fee simple was emphasised by Bryson J and Handley AJA, respectively, in Fensom v Cootamundra Race…
Bowman v Nambucca Shire Council [2020] NSWSC 1121
Citation 11 (Para 381)

…The Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74, provided guidance with respect to the construction of s 42 of the CLA:…
Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450
Citation 12 (Para 147)

…tip) to take reasonable care to prevent the ignition of a fire and to prevent its spread.” Weber v Greater Hume Shire Council (2019) 100 NSWLR 1, [2019] NSWCA 74 at [19]. But they denied that their duty was non-delegable, when fire was introduced to their land, despite what was decided in McInnes v Wardle (1931) 4…
Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848
Citation 13 (Para 102)

…the jetty stood. It thus had the powers of a landowner but qualified by the purpose for which it was created: see Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 237 LGERA 363. The Trust was charged with the care, control and management of the land. By virtue of the handover of the national work (being…
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657
Citation 14

…ty Ltd (2004) 216 CLR 515; [2004] HCA 16 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; [1955] HCA 73 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liabili…
Weber v Greater Hume Shire Council (No 2) [2019] NSWCA 108
Citation 15 (Para 2)

…ril 2019 the Court made orders granting Ms Weber leave to appeal and setting aside the orders made on 14 May 2018: Weber v Greater Hume Shire Council [2019] NSWCA 74. The matter was remitted to the Common Law Division to deal with outstanding issues in the representative proceedings.…
Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438
Citation 16

…544; [1995] HCA 18 Weber v Greater Hume Shire Council [2019] NSWCA 74 Wells v Council of the City of Orange (No 2) [2017] NSWSC 510 Woollahra Municipal Council v Sved (1996) 40 NSWLR 101 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: P Cane, Tort Law and Economic Interests (OUP, 1991) La…
High Court Bulletin [2019] HCAB 7
Citation 17

…[2019] NSWCA 74 &…
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Mt Irvine Claim”) [2024] NSWLEC 127
Citation 18 (Para 117)

…corporation its capacity to carry out certain functions incidental upon land ownership is restricted by statute ( Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 100 NSWLR 1 at [33] and [34] per Basten JA). In the present case, the powers of the Reserve Trust as a deemed owner in fee simple of Reserve…
J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23
Citation 19

…v Lafsky [2014] Aust Torts Rep 82-166; [2014] NSWCA 94 Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Winn v Director-General National…
Cabinets by Webb Pty Ltd v Creasy [2025] VCC 910
Citation 20

…2 ALR 440; Powercor Australia Ltd v Thomas (2012) 43 VR 220; Carr v Baker (1936) SR (NSW) 301; Weber v Greater Hume Shire Council [2019] NSWCA 74…

Cases Cited

Statutory Material Cited

Weber v Greater Hume Shire Council [2018] NSWSC 667
Citation 1 (Para 3)

…Walton J, delivered judgment on 14 May 2018, dismissing the proceedings with respect to the plaintiff. [1] 1. Weber v Greater Hume Shire Council [2018] NSWSC 667.…
Electro Optic Systems Pty Ltd v State of New South Wales [2014] ACTCA 45
Citation 2

…e v Stevenson [1932] AC 532 Electro Optic Systems Pty Ltd v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45 Fletcher v Rylands (1866) LR 1 Ex 265 Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56. Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 Lithgow City Council v Jackson (2011) 244…
Curtis v Harden Shire Council [2014] NSWCA 314
Citation 3 (Para 47)

…g management of the land for waste disposal purposes, without any specific statutory authority. 37. Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [254]. 38. Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71. 39. Roads and Traffic Authority of New South Wales v Refr…
Holroyd City Council v Zaiter [2014] NSWCA 109
Citation 4 (Para 84)

…cial resources available to it in order to resist a finding that it was in breach of its duty of care. The Council failed for three reasons. [63] 62. [2014] NSWCA 109; 199 LGERA 319 (Hoeben, Emmett and Gleeson JJA). 63. Zaiter at [97]-[100].…
Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340
Citation 5 (Para 83)

…that evidence was required before the Court could engage with the principles in s 42. The present considerations were immaterial in that context. 61. [2012] NSWCA 340; 191 LGERA 182 at [48]-[50] (Hoeben JA, Meagher JA and Tobias AJA agreeing).…
Lithgow City Council v Jackson [2011] HCA 36
Citation 6

…ity Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 Murphy v Brentwood District Council [1991] 1 AC 398 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Roads and Traffic Authority of New So…
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Citation 7

…97 (NSW), ss 5, 48; Sch 1, items 39, 42 Rural Fires Act 1997 (NSW), ss 63, 81, 93, 95, 133 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Anns v Merton London Borough Council [1978] AC 728 Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 4…
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Citation 8 (Para 47)

…) v Ardouin (1961) 109 CLR 105; [1961 HCA 71. 39. Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [376] (Campbell JA, McColl JA agreeing and Sackville AJA agreeing with further reasons).…
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
Citation 9

…v Speirs (1957) 97 CLR 202; [1957] HCA 14 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162; [1940] HCA 35 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Donoghue v Stevenson [1932] AC 532 Electro Optic Systems…
Perre v Apand Pty Ltd [2004] FCA 881
Citation 10 (Para 20)

…oes not recognise an abstract duty not to harm any person by one’s carelessness, as opposed to a duty owed to identifiable individuals. [10] 9. (1999) 198 CLR 180; [1999] HCA 36. 10. Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [67] (Gaudron, McHugh, Gummow and Hayne JJ).…
Sullivan v Moody [2001] HCA 59
Citation 11

…Rylands v Fletcher (1868) LR 3 HL 330 Stovin v Wise [1996] AC 923 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41 Texts Cited: M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019) NSW Government Gazette (No 150), 1…
Brodie v Singleton Shire Council [2001] HCA 29
Citation 12

…s (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 Caltex Refineries (Qld) Pty Ltd v Stavar (2009)…
Agar v Hyde [2000] HCA 41
Citation 13 (Para 20)

…lessness, as opposed to a duty owed to identifiable individuals. [10] 9. (1999) 198 CLR 180; [1999] HCA 36. 10. Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [67] (Gaudron, McHugh, Gummow and Hayne JJ).…
Perre v Apand Pty Ltd [1999] HCA 36
Citation 14

…6 McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 Murphy v Brentwood District Council [1991] 1 AC 398 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 Rylands v Fletcher (1868) LR 3 HL 330 Stovin v Wise…
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13
Citation 15

…uin (1961) 109 CLR 105; [1961 HCA 71 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 City of Perth v Cryst…
Sutherland Shire Council v Heyman [1985] HCA 41
Citation 16

…ullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41 Texts Cited: M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019) NSW Government Gazette (No 150), 11 November 1994 Reserve No 49,269; NSW Government Gazette (No 153),…
Hargrave v Goldman [1963] HCA 56
Citation 17

…10 ACTLR 1; [2014] ACTCA 45 Fletcher v Rylands (1866) LR 1 Ex 265 Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56. Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 Murphy v Brentwoo…
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71
Citation 18 (Para 47)

…statutory authority. 37. Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [254]. 38. Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71. 39. Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 at [376] (Cam…
Caledonian Collieries Ltd v Speirs [1957] HCA 14
Citation 19

…l Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162; [1940] HCA 35 Curtis v Harden Shire Council (2014) 88 NSWLR…
City of Perth v Crystal Park Ltd [1940] HCA 35
Citation 20 (Para 33)

…for Quebec v Attorney-General for Canada (1921) 1 AC 401, 409; City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162 (Rich ACJ), 168 (Williams J); [1940] HCA 35.…
McInnes v Wardle [1931] HCA 40
Citation 21

…19 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 Murphy v Brentwood District Council [1991] 1 AC 398 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 7…
Rylands v Fletcher [1868] UKHL 1
Citation 22 (Para 27)

…evant, it will be governed by the Civil Liability Act . 16. (1994) 179 CLR 520; [1994] HCA 13. 17. Burnie Port Authority at 530-531, 534. 18. Fletcher v Rylands (1866) LR 1 Ex 265; affirmed, Rylands v Fletcher (1868) LR 3 HL 330. 19. Burnie Port Authority at 556. 20. Burnie Port Authority at 555.…

AI Chat coming soon

Medium Neutral Citation:	Weber v Greater Hume Shire Council [2019] NSWCA 74
Hearing dates:	26, 27 February 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Before:	Basten JA at [1]; Gleeson JA at [200]; Sackville AJA at [201]
Decision:	(1) Grant Sharon Patricia Weber leave to appeal from the judgment and orders in the Common Law Division; (2) Allow the appeal and set aside orders made on 14 May 2018; in their place make the following orders – (a) Give judgment for the representative plaintiff, Sharon Patricia Weber, against the defendant, Greater Hume Shire Council, in the amount of $104,400 plus interest; (b) Order that the defendant pay the plaintiff’s costs of the trial of the common issues; (c) Remit the proceedings to the Common Law Division to deal with the outstanding issues in the representative proceedings. (3) Order that the respondent pay the appellant’s costs in this Court.
Catchwords:	TORTS — negligence — duty of care — duty of care owed by operator of waste disposal tip — escape of fire – whether class to whom duty owed indeterminate TORTS — negligence — standard of care — whether Council exercising special statutory power under Civil Liability Act 2002 (NSW), s 43A TORTS — negligence — breach of duty — whether adequate precautions taken to prevent escape of fire – allocation of resources by local council — application of Civil Liability Act, s 42 — whether inaction of local council unreasonable — whether financial resources available to take precautions TORTS — negligence — causation — where multiple possible causes of fire — whether probable causes arising from breaches of duty were sufficient to establish causation — whether precautions would have prevented damage to the plaintiff
Legislation Cited:	Careless Use of Fire Act 1912 (NSW), s 9 Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5H, 5M, 32, 41, 42, 43A, 49; Pt 5 Crown Lands Act 1989 (NSW), ss 92, 98, 100; Pt 5 Crown Land Management Act 2016 (NSW), Sch 8 Local Government Act 1993 (NSW), ss 24, 48; Ch 6 Protection of the Environment Operations Act 1997 (NSW), ss 5, 48; Sch 1, items 39, 42 Rural Fires Act 1997 (NSW), ss 63, 81, 93, 95, 133
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Anns v Merton London Borough Council [1978] AC 728 Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 401 Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340; 191 LGERA 182 Black v The Christchurch Finance Company Limited [1894] AC 48 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961 HCA 71 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; [1957] HCA 14 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 City of Perth v Crystal Park Ltd (1940) 64 CLR 153, 162; [1940] HCA 35 Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 Donoghue v Stevenson [1932] AC 532 Electro Optic Systems Pty Ltd v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45 Fletcher v Rylands (1866) LR 1 Ex 265 Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56. Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 Murphy v Brentwood District Council [1991] 1 AC 398 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263 Rylands v Fletcher (1868) LR 3 HL 330 Stovin v Wise [1996] AC 923 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41
Texts Cited:	M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019) NSW Government Gazette (No 150), 11 November 1994 Reserve No 49,269; NSW Government Gazette (No 153), 24 September 1913 Review of the Law of Negligence – Final Report (September 2002)
Category:	Principal judgment
Parties:	Sharon Patricia Weber (Appellant) Greater Hume Shire Council (Respondent)
Representation:	Counsel: Mr P Braham SC / Mr D Birch (Appellant) Mr R Sheldon SC / Mr A Barnett (Respondent) Solicitors: Maddens Lawyers (Appellant) Mills Oakley Lawyers (Respondent)
File Number(s):	2018/180967
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2018] NSWSC 667 Date of Decision: 14 May 2018 Before: Walton J File Number(s): 2015/368036