Weber v Greater Hume Shire Council

[2018] NSWSC 667

Supreme Court

New South Wales

Medium Neutral Citation:

Weber v Greater Hume Shire Council [2018] NSWSC 667

Hearing dates:

3-5, 10-12, 18-19, 21 April 2017

Date of orders:

14 May 2018

Decision date:

14 May 2018

Jurisdiction:

Common Law

Before:

Walton J

Decision:

In all the circumstances, the Court orders:

 

(1) The plaintiff’s claim is dismissed.

 

(2) Subject to further orders of the Court, the plaintiff shall pay the defendant’s costs of the proceedings as agreed or, in the absence of agreement, as assessed.

 

(3) In the event agreement as to answers to the common questions, the plaintiff shall file and serve a joint answer to the questions within 21 days of this judgment. If there is disagreement as to the answer to the common questions, the parties shall file and serve their respective versions of the answers within the same timeframe. The matter will then be listed for directions, at a date to be fixed, to resolve any disagreement as to the common questions.

 (4) In the event any application is made by the parties as to costs such application(s) and a summary of submissions in support thereof shall be filed and served within 21 days of this judgment. In the event of such application(s), the Court will list the matter for directions.

Catchwords:

TORTS – representative proceedings – negligence – plaintiff suffered injury through fire – determination of liability – no claim for pure economic loss – ignition of fire – origins – causation – spread or escape of fire – common law principles – existence and scope of duty of care – novelty of duty –salient features relevant to duty of care – reasonably foreseeability – knowledge of defendant significance of harm – relationship – vulnerability indeterminacy – breach – statutory conditions regarding breach of duty –s 5B Civil Liability Act 2002 – risk not insignificant – whether reasonable person would take precautions – probability of harm – likely seriousness of harm – burden of taking precautions – social utility – s 42 Civil Liability Act 2002 – statutory defence –general v specific allocation – specific resource allocation for waste management – no defence made out - whether precautions were reasonable – defendant should have adopted and implemented specific fire precautions – breach found – causation – whether precautions would have prevented the injury caused by fire spread – failure to prove factual causation – negligence not established by plaintiff – nuisance – proprietary rights over affected land – unreasonable interference – in absence of negligence defendant not liable in nuisance – claim by plaintiff dismissed – directions regarding common questions and costs

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Crown Lands Act 1989 (NSW)
Evidence Act 1995 Act (NSW)
Local Government Act 1993 (NSW)
Rural Fires Act 1997 (NSW)

Cases Cited:

Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46
Bankstown City Council v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51
Benic v New South Wales [2010] NSWSC 1039
Burnie Port Authority v Gerard Jones Pty Ltd (1994) 179 CLR 520
Caltex Refineries (QLD) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Carangelo v State of New South Wales [2016] NSWCA 126
Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108
Cekan v Haines (1990) 21 NSWLR 296
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59
Department of Transport v North West Water Authority [1984] AC 336
Directors of St Helen's Smelting Co v Tipping (1865) 11 ER 1483
Electro Optic Systems v State of New South Wales (2014) 10 ACTLR 1; [2014] ACTCA 45
Elston v Dore (1982) 149 CLR 480
Fairall v Hobbs (2017) 347 ALR 151; [2017] NSWCA 82
Fitzgerald v Penn (1954) 91 CLR 268
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382
Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151
Glasgow Corporation v Muir [1943] AC 448
Goldman v Hargrave (1966) 115 CLR 458
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Hargrave v Goldman (1963) 110 CLR 40
Harris v Woolworths Ltd [2010] NSWCA 312
Holroyd City Council v Zaiter (2014) 119 LGERA 319; [2014] NSWCA 109
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 59 ALR 722; [1985] HCA 37
March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12
Marcic v Thames Water Utilities Ltd [2002] QB 929
Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31
Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354
Oldham v Lawson (No 1) [1976] VR 654
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36
Price v State of New South Wales [2011] NSWCA 341
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3
Road and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Shaw v Thomas [2010] NSWCA 169
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79
Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478
Stockwell v State of Victoria [2001] VSC 497
Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62
Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701
Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

C Sappideen and P Vines (eds), Fleming’s The Law on Torts, (10th ed, 2011, Thomson Reuters)
Macquarie Dictionary (2nd ed, 1992, The Macquarie Library)
R Balkin and J Davies, Law of Torts (4th ed, 2009, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Sharon Patricia Weber (Plaintiff)
Greater Hume Shire Council (Defendant)

Representation:

Counsel:
T Tobin SC with A Fraatz and C Nicholson (Plaintiff)
R Sheldon SC with A Barnett (Defendant)

  Solicitors:
Maddens Lawyers (Plaintiff)
Mills Oakley (Defendant)

File Number(s):

2015/368036

Judgment

BACKGROUND AND GEOGRAPHY OF THE TIP

THE FIRE

Weather Conditions

Observations and Response of Residents and Fire Authorities

The Fire Path

The Representative Proceedings

THE PLEADINGS

Negligence

Introduction

Duty of Care

Standard of Care

Breach of duty

Causation

Loss and damage

Nuisance

Common Questions

Relief

NEGLIGENCE: IGNITION OF THE FIRE AT THE TIP

Relevant Legislation on Causation

Relevant Authority on Causation

Evidence: Point Of Origin and Cause of the Fire

Expert Evidence

Origin of the Fire

The Cause of the Fire

Expert Evidence

Dry Lightning

Spontaneous Combustion

Residual Burn

Deliberate Ignition

Glass and Batteries

Conclusion: Origin of the Fire

Conclusion: Factual causation – Ignition of the Fire

NEGLIGENCE: ESCAPE OF THE FIRE FROM THE TIP

DUTY OF CARE

Submissions of the Parties

The Plaintiff

The Defendant

Legal Principles: Duty of Care

The existence and scope of Duty of Care

Conclusion regarding Duty of Care

BREACH OF DUTY

Submissions of the Parties

The Plaintiff

The Defendant

Relevant Legislation on Breach

The Application of ss 5B and 5C

Statutory Defence: s 42

Preliminary observations regarding the operation of s 5B

Precautions

Further considerations regarding s 5B: Expert opinion as to whether the precautions were reasonable fire precaution measures

Did the defendant take the precautions against the risk of harm?

Precautions: Spread of Fire

Prepare and implement a fire management plan

Create and maintain an effective firebreak

Consolidate deposited waste into appropriate areas

Remove fuel to prevent dangerous build ups

Install and maintain fire fighting equipment

Undertake inspection and monitoring of the facility during periods of extreme bush fire risk

Other Precautions

Ensure different kinds of waste are not mixed together

Cover waste with cover material on regular basis

Manage green waste piles

Manage combustible material to minimise risk of combustion

Discouraging Intruders

Conclusion: Breach of Duty

CAUSATION

Submissions of the Parties

The Plaintiff

The Defendant

Expert Evidence

Conclusion: Causation – Escape of the Fire from the Tip

NUISANCE

Legal Principles

General Principles

Statutory Authority

Submissions of Parties

The Plaintiff

The Defendant

Conclusion: Nuisance

SECTION 43A OF THE CIVIL LIABILITY ACT

CONCLUSION

ORDERS

ANNEXURES

Judgment

1. HIS HONOUR: The Walla Walla Waste/Recycling Depot was a landfill waste facility within the municipality of and operated, as at December 2009, by the Greater Hume Shire Council (“the defendant”). It serviced, inter alia, the needs of the residents of Walla Walla, a rural township in south-east New South Wales, which lacked roadside garbage collection. It was referred to throughout the proceedings as the Depot, the Walla Walla Landfill, the Walla Walla Tip and the Tip Reserve. It shall hereinafter be referred to as “the Tip”.

2. The matter concerns claims in negligence and nuisance brought after the ignition of a fire in the Tip on 17 December 2009 which then spread from the Tip. The fire burnt through an abandoned golf course and farm lands reaching the plaintiff’s home in Gerogery. The fire resulted in property damage.

BACKGROUND AND GEOGRAPHY OF THE TIP

3. The defendant was constituted under the Local Government Act 1993 (NSW) (“the LG Act”) for a designated area (see s 219). It is a body politic of the State with perpetual succession and the legal capacity of powers of an individual within the State of New South Wales (see s 220(1) of the LG Act).

4. The defendant has a general function to provide services to the community including waste management services (s 24 of the LG Act).

5. The process by which the defendant became responsible for the Tip may be briefly summarised:

1. By s 92 of the Crown Lands Act 1989 (NSW), the “Minister” was empowered to establish a reserve trust by notification in the gazette.

2. An official notice of Reserve 49269 at Walla Walla for the purpose of night soil depot and rubbish depot was notified in the Government Gazette of 24 September 1913. This established the Culcairn Shire Council Crown Reserves Trust (“the Trust”) under s 92.

3. Under s 95 of the same Act, the defendant was appointed to manage the affairs of the Trust. The Tip was not dedicated or reserved as a Public Reserve for the purposes of s 98 of the Crown Lands Act.

4. The defendant is not the owner of the land upon which the Tip is situated. The power and functions it possessed over the Tip was not because it was in occupation of the land per se, but it was an occupier of the land which constitutes the Tip.

6. The Tip was originally operated by the Culcairn Shire Council (“CSC”). In 2004, the CSC amalgamated with two shires, namely, Holbrook and Hume, to form the defendant. In the period 2004-2010, the defendant managed up to 10 waste facilities located at Brocklesby, Burrumbuttock, Culcairn, Gerogery, Henty, Holbrook, Jindera, Mullengandra, Woomargama and the Tip.

7. The Tip was approximately 3 kilometres south of Walla Walla. It was located to the west of Walla Walla-Jindera Road. The Walla Walla-Jindera Road connected the townships of Walla Walla and Jindera; it commenced at the corner of Commercial Street and Walla Walla Road and continued south through to the township of Jindera. The Tip was accessed by an unmarked dirt road adjoined to the Jindera Road (“the dirt road”).

8. A road gate was erected 40 metres down the dirt road opposite the Walla Walla Golf Course clubhouse. Beyond the road gate the dirt road continued in a westerly direction alongside the abandoned Walla Walla Golf Course (“the golf course”) (disused since 2007), which was situated to the south of the dirt road. North from the dirt road was farm land which included paddocks that belonged to Mr Jeffrey John Pumpa (which lay north of the Tip). The dirt road terminated at the end of the Tip.

9. The Tip entrance was located off the dirt road. Access was sought via attendance upon a “hut” situated directly opposite the Tip entrance and was approximately 150 metres from the dumping area within the Tip. The hut was manned by a Tip Attendant, employed by the defendant, each Wednesday and Sunday between 2 and 5pm. The Tip Attendant collected payment and oversaw the dumping of refuse at the Tip. Outside those times the Tip was closed to the general public and the road gate was padlocked. (On the evidence before the Court it was revealed both Messrs Maxwell David Jacob and Pumpa had keys to access the Tip. Additionally, a spread sheet of keys given out to people in relation to the Culcairn, Walla Walla and Henty landfill gates was also before the Court and titled “Master Key System”).

10. The Tip was around 10 acres in area. A survey plan produced in 1913 shows the dimensions of the Tip to be 2000 x 5000 links (approximately 400 x 100 metres) (see Annexure A). The distance between the northern to southern boundaries was around 100 metres.

11. The Tip was bounded by the golf course, as noted above, and substantial farmland. The golf course stretched along the eastern and southern boundaries of the Tip. The land on which the golf course was located was owned by the Department of Primary Industries – Lands (formerly the Department of Lands) for and on behalf of the Crown in right of the State of New South Wales.

12. There was also swampy depression within the eastern region of the Tip that extended west from the adjoining golf course.

13. The land generally to the north of the Tip was known as “Townsview” and leased by Mr Pumpa, together with his wife, Ms Christine Pumpa. The property consisted of residential, commercial activities and farmland. It occupied 550 acres of land. The farmland, directly opposite the Tip, consisted of paddocks situated alongside the north of dirt road for Mr Pumpa’s sheep. Part of Mr Pumpa’s property also abutted the south and western boundaries of the Tip. Mr Pumpa used the Tip from time to time and had direct access via a gate, situated along the western boundary of the Tip, from his property.

14. The commercial activity undertaken on Townsview consisted of a factory complex, “Everlast tanks” (“the factory”), and was owned and operated by Mr Ray Reeves. The factory was approximately 400-500 metres north of the Tip.

15. Further farmland, situated south-east of the Tip and directly bordering the southern side of the golf course was a paddock owned by Mr Jacob. Mr Jacob lived with his family in Springvale which was 2 kilometres south of the Tip.

16. A combination of external (or “perimeter”) and internal fencing was used to define boundaries between the Tip and the adjoining properties and for the containment of rubbish. Turning first to the external fencing, the original dividing fence between the golf course and the Tip, alongside the eastern boundary of the Tip, was a combination of steel posts, barbed wire and cyclone fencing (referred to as “a steel dropper fence”) (it remained at 2009). That same external fencing extended along the whole of the southern portion of the Tip. A similar combination of steel posts, barbed and cyclone wires also extended alongside the western boundary (hereinafter the external fencing of the Tip shall be referred to as “the perimeter fence”).

17. Within the formal boundaries of the Tip, there was a dumping area roughly divided into six separate areas for the dumping and treatment of waste. The areas were arranged in a horseshoe shape (see Annexure B). The perimeter of the dumping area was defined by a rural fence, described interchangeably as a “netting fence”, “internal fence”, “mesh fence” and “high fence” (hereinafter it shall be referred to as “the netting fence”). This netting fence was around 6 ft in height and served for the containment of refuse.

18. It should also be noted, in this respect, by consent, the Court conducted a view of the Tip. The Court also took a view from Mr Pumpa’s property on Townsview and, in doing so, undertook observation of the Tip from that location. A summary of the view was prepared by the plaintiff and accepted by the defendant as a fair representation of the view undertaken by the Court. It may be noted that that summary contains a reference to differences between the state of the Tip upon inspection by the Court and that which existed at the time of the fire.

19. I will now turn to the internal layout of the Tip, with reference to Annexure B.

20. Annexure B is a marked up aerial photograph of the Tip; identifying the general locations of various designated waste areas. It features six red stickers that indicate, by handwritten markings, the primary dumping zones for specific types of waste within the dumping area, namely, general waste, concrete, green waste, scrap metal, tyres and glass.

21. During the course of evidence, further clarification was provided as to the layout. The western end was designated for general waste, the southern for general landfill, and towards the east were allotted areas for green waste, scrap metal, tyres and glass. Identification was determined by appearance, in the absence of any signage, and each section was generally separated by approximately 10 metres. In the general waste area, there was a large mound referred to throughout proceedings as “the bund” or “the mound” of the Tip (hereinafter referred to as “the bund”). The bund commenced approximately halfway between the southern and northern boundaries, and occupied the north-west region of the Tip. The top of the bund was not visible from within the hut.

22. The area alongside the western, eastern and southern boundaries between the perimeter fence and the netting fence consisted of a track that was approximately 3-5 metres wide. The track was designed to be graded in order to produce a firebreak within the Tip (it was referred to throughout the proceedings as “the firebreak”). It was the only firebreak with the Tip (I will return to consideration of its preventative function, as a firebreak, later in this judgment). There was no firebreak within the netting fence (i.e. the dumping area). As at December 2009, the land comprising of the firebreak was uneven, included tall, uncut or burnt and fully cured grasses, as well as refuse of the nature of concrete and steel throughout it. The land could not be traversed by machinery so as to cut it.

23. Parts of the Tip, including areas within the dumping area, were inaccessible to vehicles due to, inter alia, large mounds of dirt, rough terrain, dense sections of tall grass and the swampy depression dominating the eastern half of the Tip.

THE FIRE

Weather Conditions

24. On Thursday, 17 December 2009, the weather conditions at the Tip were typical for the beginning of summer in south-east New South Wales. The temperature throughout the day ranged between 14.5-40.3 degrees Celsius and the humidity between 8-89%. It was a day of “extreme” fire danger with wind traveling at 76 kilometres per hour with wind gusts up to 107 kilometres per hour in a north westerly direction.

25. Information from the Albury Airport weather station, which was located 33 kilometres to the south of the Tip and was the nearest source of calibrated weather data, indicated the following conditions over the course of the day:

1. At 1.30pm the temperature was 38.6 degrees Celsius with 11% humidity. The wind travelled in a north-north-west direction at 35 kilometres per hour with gusts up to 54 kilometres per hour.

2. At 2.32pm the temperature was 38.3 degrees Celsius with 11% humidity. The wind travelled in a north-west direction at 41 kilometres per hour with gusts up to 63 kilometres per hour.

1. At 2.46pm the temperature was 29.3 degrees Celsius with 37% humidity. The wind travelled in north-west direction at 76 kilometres per hour with gusts up to 107 kilometres per hour.

2. At 6.00pm the temperature was 28.6 degrees Celsius with 41% humidity. The wind travelled in a west-south-west direction at 37 kilometres per hour with gusts up to 54 kilometres per hour.

26. Additionally, weather data was collected from the Walla Walla Post Office (“the post office”) which included the following:

1. As to rainfall in Walla Walla prior to the fire, there had been 27 mm of rainfall between 21-23 November 2009 and 1.6 mm on 9 December 2009.

2. As to “solar flux”, on 16 and 17 December 2009 there had been a reading of 33 megajoules per square metre and 23 megajoules per square metre, respectively.

(The data collected from the post office was particularly relied upon by one of the experts called by the defendant in the proceedings, Dr Green (to which I will return later in this judgment), with respect to his opinion as to possible causes of the fire).

Observations and Response of Residents and Fire Authorities

27. Two eye-witnesses observed the first signs of smoke and flames from the western area: Messrs Clayton Jon Reeves and Pumpa. (By the hearing Mr Clayton Jon Reeves was deceased and a s 67 notice pursuant to the Evidence Act 1995 Act (NSW) was provided to that effect. His written statement was admitted without objection).

28. At approximately 1.35pm, Mr Pumpa was driving down the lane running on his property, to the immediate north of the Tip, when he noticed “a small amount of smoke” coming from the western end of the Tip. He “saw no flames”. Incidentally in an earlier statement, Mr Pumpa had described seeing “black smoke bellowing from the rubbish tip” from his driveway around that same time. However, that difference in description has no particular significance.

29. Mr Pumpa was cross-examined and re-examined as to the location of the smoke that he observed. During the course of giving evidence he refined his initial observation, with respect to location, to the south-western corner within the Tip. This was reflected in his marking of Ex 1, with which he drew a blue circle to the south-west of the concrete dumping zone (signified by a red sticker marked “concrete” in Annexure B). At the view undertaken by the Court to Mr Pumpa’s residential property on Townsview, it was confirmed that it was possible to see the Tip from his property.

30. The first triple-0 call reporting the fire was at 1.38pm recorded in the Incident Log. The call was made from the resident of 64 Commercial Street, Walla Walla.

31. Between 1.30pm and 2pm, Mr Clayton Jon Reeves, was leaving the factory. Mr Reeves observed “smoke and flames” coming from the “high side of the rubbish tip” in western end of the Tip. He described the smoke and flames as “engulfing the entire tip” but mainly concentrated “at the tip end (western end)”. In his statement to the police he stated that “[w]ithin seconds” of his observations he saw Mr Pumpa arrive. He attended upon Mr Pumpa’s paddocks to help shift sheep away from the fire.

32. Residents in Walla Walla also observed indicators of fire coming from within Tip. Mr Jeffrey Grosse, an employee at Elders Real Estate Agency on Commercial Street, which was around 3 kilometres north of the Tip, saw smoke coming from the Tip at approximately 1.35pm. He phoned the Fire Control Centre in Albury (“the FCC”) to alert them and report the fire at 1.38pm. At 1.40pm, Mr Grosse received a circular message on his phone from the FCC, which alerted all Rural Fire Service members (in New South Wales) of the fire at the Tip. He immediately drove to the Fire Shed (also referred to as “the Fire Station”), which was also on Commercial Street.

33. Captain John Jacob, of the Walla Walla Fire Brigade, was at the Fire Station upon the arrival of Mr Grosse. They drove in Captain Jacob’s fire truck to the Tip. It took Mr Grosse around 10 minutes from the time when he first learnt of a fire until he was at the road gate: that is to say he arrived at the road gate at or about 1.45pm.

34. Mr John Eric Seidel, a resident living on Schoff Road, approximately 3 kilometres east of the Tip, claimed that he was alerted to the fire by the smell of smoke around 1.30 or 1.40pm, at which time he stepped outside his property, and he observed smoke “bellowing into sky” above the Tip.

35. Mr Jacob recalled spotting the burning in the Tip at about 1.45pm. From his property on Springvale he too observed “smoke billowing out of the tip”. He drove in his ute to his paddock to move his sheep away from the fire front; he was assisted by Mr Richard Schollick. He said “it took about 15 minutes to shift the sheep”. During the shifting, Mr Jacob was assisted by his neighbours, Mr Alan Raynor and Messrs Gary and Daniel Mickan, who helped put out the fire in his paddock. Mr Jacob described the grass in his paddock as being “clover and rye” and “about 18 inches high”. In contrast, the grass in the golf course was “over a metre high in a lot of places”. By the time Mr Jacob’s had shifted the sheep he said “the fire was coming onto my property”, at which point he drove away to retrieve his fire truck. He accepted in cross-examination that it was around 15-20 minutes before he was in a position to use his truck and assist with the fire.

36. At around 2pm Mr Jacob returned, at that stage the fire had already pushed through the golf course and into Mr Jacob’s paddock. He identified “[t]he problem was that as we thought we put it out on the flank, it kept reigniting”. He said that the fire “would move and re-ignite to the sides making it impossible to stop its advance across the [Walla Walla-Jindera] road”. Mr Jacob fought the fire predominantly on the southern side, from his property, with the assistance of “a few local brigade units”. He described the fire front as “getting wider”. He continued to put fires out on his property until the evening.

37. At approximately 1.50pm, after shifting his sheep, Mr Pumpa collected a tractor with a blade and graded the grass outside the boundary of his property on the western side of the Tip, in an effort to create a firebreak to protect his property. This was also observed by Mr Jacob. Mr Pumpa recalled that the fire was at that time “well and truly already across the top of the [T]ip and into the golf course”. (Mr Pumpa said, in cross-examination, the fire was not in the golf course when he “first got there” but clarified that when he started grading on the western side the fire was “moving across the golf course”).

38. 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”.

39. In para 8 of his statement of evidence, Mr Grosse, inter alia, said:

The fire was in its initial stages when we first arrived, but it had already travelled though the fence around the perimeter of the Tip towards Walla Walla-Jindera Road. There was very tall grass within the Tip area and around the perimeter of the Tip. The fire was travelling very quickly.

40. When it was suggested by Senior Counsel for the defendant that his evidence (in paragraph 8) was that, when Mr Grosse arrived, the fire had already travelled through the fence around the perimeter of the tip”, he stated:

Well it wasn't meant to convey that if that's the way you read it but we had a - cut the lock, opened the gates, drive down, we had 500 metres to drive, we could see smoke and when we got down closer the - to it, we're still I'd say - well from what I can remember the majority of it was still in the tip area beside the - inside the high fence except on the southern side I think had already started to go through into the golf course.

41. He was then asked and answered:

Q. The only place that you made any movements to active management of the fire was outside the fence, wasn't it?

A. It was outside the high fence of the tip but still in the roadway down to the tip, because the golf club - the tip was fenced - you had the road going down and you had grass either side of the road, to keep people off the golf - keep cars, traffic, whatever off the golf course, so you go down that fenced area, then you got down to where they dumped the rubbish in the tip. Now there was a high fence on the eastern side to stop paper and anything like that blowing out of the tip, the pit area, there was a pit area then there was the actual area where you drive up to and drop all the whitegoods, bottles, rubbish in, in the actual other tip, but it's all part of the tip itself.

42. Mr Grosse was then pressed on the first sentence of the above extract from para 8 of his witness statement. He stated:

Q. Second sentence of that on the second line begins, "The fire was in its initial stages when we first arrived." Is that right?

A. "The fire was" - yes I would say that was right.

Q. "But it had already travelled through the fence around the perimeter of the tip." That's right too, isn't it?

A. Yes, yes about the actual dumping area in the tip, yes.

Q. And it was on its way towards Walla Walla Jindera Road, wasn't it?

A. Yes. Well it was basically into the golf course heading towards the Walla Jindera Road.

Q. There was tall grass in the golf course, wasn't there?

A. Yes.

Q. The fire raced across the golf course, did it not?

A. It definitely did.

Q. To a point where it crossed the Walla Walla Jindera Road?

A. Yes.

43. In re-examination, Mr Grosse stated that he found it hard to recall if the fire was burning outside the netting fence, but he did not believe it was “unless there was a little bit on the golf course side”.

44. Mr Grosse’s account of the escape of the fire in his statement was given on 15 July 2016. At that time, he had a clear recollection that, at or soon after his arrival, the fire had escaped the perimeter of the Tip and was heading to Walla Walla-Jindera Road. I do not consider his initial response in cross-examination was prevarication but simply Mr Grosse’s attempt to recall. When pressed, his recollection conformed with his statement. His answer in re-examination was again affected by issues of recollection.

45. This analysis proceeds to the comfortable conclusion that Mr Grosse’s evidence was that, upon his arrival at the Tip, he observed that the fire had, at least in significant part, escaped the Tip and was heading at a rapid pace through the tall grass within the golf course to Walla Walla-Jindera Road.

46. Mr Grosse confirmed he and Mr Jacob immediately attempted to fight the fire and moved the truck to the eastern side of the netting fence surrounding the dumping area but still within the formal boundary of the Tip. He described the terrain on the eastern side as “rough”, which caused the truck to lurch, and commented on the grass at the golf course not being maintained. It took approximately two minutes to exit that area. Those topographical difficulties rendered them with no option but to take the truck back up the driveway to the road and to the road to fight the fire at which stage he recalled the fire had “already jumped the road” (I will refer to that evidence below). Mr Grosse recalled moving into the neighbouring paddocks to fight the fire. Mr Grosse continued until approximately 5pm that day.

47. He gave the following evidence as to his efforts at fighting the fire initially at the Tip and thereafter:

Q. Because your assessment of the situation was that there was no hope of stopping the fire at its front at that stage, was there?

A. Well we couldn’t stop the fire at its front because we were in the confines of that roadway. We had to turn around and go up to where the gate - we'd cut the bolts, turn right and then go into the golf club area to try and stop the fire there, but by the time we got into that area, the fire had raced up and it beat us to where there was a dam and a creek and then got over that and then it got to the road, jumped the road, so we had to go back out again and into the - a property next door.

Q. How long do you think it was until the fire jumped the road - perhaps I'll put it differently which might help you. How long was it between you arriving at the gate and the fire jumping the road?

A. Now which - when was this, arriving at the - to cut the bolt?

Q. Cutting the bolt, from that time until it jumped the road?

A. I would - I'm not real sure but it probably would've been about under - or ten, around ten, 12 minutes, 15 minutes, something like that.

Q. There was no fire to fight from the laneway leading from the Walla Walla Jindera Road to the hut at the tip was there?

A. Not at that stage.

Q. Because all the fire was heading south and east from there was it not?

A. More east, southeast.

…

Q. That meaning has really got nothing to do, can I suggest to you, with your going from a point immediately outside the tip down to the road to fight the fire there, has it?

A. Yeah, right, it was - the road was the tip area, the laneway was the tip area, apparently, I've been told of that. But when we got up there, we thought we could - we had to go back out the - the gates that we cut the bolt on, we had - we - there was a gate going into the golf club, we thought, well, with a bit of luck, we can possibly try and stop it before it gets to the road, but it was going across on that east, south easterly angle.

We raced across the other side to try and get to it to stop - stop it there, but there was a dam and a creek, we got to that, we couldn't get over the dam, we couldn't get through to the creek because it was too deep, and the fire came up past us. We seen, looked and we seen it had jumped the road so we raced back out onto the Jindera Walla Road and then into the neighbouring property. That's - that's what happened.

…

Q. What your statement suggests, I want to put to you, is that having stopped outside the tip, you withdrew to the Walla Jindera Road, by which stage the fire had already jumped it, is that correct?

A. We didn't go directly from the tip to the Jindera Walla Road, we went into the golf course first to try and stop it, then we went onto Jindera Walla Road.

48. In his statement, Mr Grosse also recalled a third person being present upon arrival at the gate. He met someone whom he believed to be “one of the Odewahn brothers” seeking to assist. This evidence was not corroborated by any further witnesses and was relevant to an issue of causation, namely, that of deliberate ignition (discussed at a later juncture in this judgment).

49. The neighbouring residents assisted emergency authorities by defending the surrounding properties adjacent to the Tip. Further fire units arrived after 2.00pm and local residents continued to fight the fire up until the rain at 11pm. However, The combined efforts of local residents and fire authorities were unable to prevent the fire from jumping across Walla Walla-Jindera Road and ultimately spreading to the township of Gerogery.

50. I will return to the origins of the fire later in the judgment.

The Fire Path

51. Fanned by the north-westerly wind the fire developed quickly. The fire spread beyond the formal boundary of the Tip on the south-east corner. (The fire did not extend beyond the external northern and western boundaries of the Tip. Nor did it spread north across the dirt road or in the direction of Townsview). It travelled across the golf course and into the paddock of Mr Jacob via the north-west corner of his paddock; it continued in a south-easterly direction toward the Walla Walla-Jindera Road. There are various accounts as to the exact time at which the fire jumped across the road, but it appears have occurred shortly after 2pm.

52. Upon breaching the Walla Walla-Jindera Road, the fire travelled 11 kilometres south-east to the township of Gerogery which is 11 kilometres from the Tip. Gerogery is situated approximately 34 kilometres to the north of Albury on the Olympic Highway.

53. The fire continued in a south-easterly direction before a southerly-westerly change came through. This change of wind direction created a number of fingers of fire along the northern front. An incident map prepared by the Rural Fire Service demonstrates a pattern of fire travel outward from a small area (see Annexure C). The fire took approximately 1 hour to reach the township of Gerogery after escaping the Tip.

54. An Emergency Declaration, pursuant to s 44 of the Rural Fires Act 1997 (NSW), was declared by the Fire Commissioner at 3.00pm on 17 December 2009. Forty fire brigades and four aircrafts assisted to put out the fire. The Emergency Declaration was revoked four days later at 12pm on 21 December 2009.

55. The total area burnt was approximately 5,200 hectares. Some of this was public land, much of it was the land owned by local residents and farmers. The plaintiff, Ms Sharon Patricia Weber, was a tenant at 14 Rose Street, Gerogery (“the property”). She lived at the property with her two teenage daughters but was visiting family in Queensland at the time of the fire. The property was directly in the fire’s path. The property was destroyed.

The Representative Proceedings

56. Out of that incident rose the representative proceedings before this Court. The plaintiff commenced this proceeding pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW) against the defendant on her behalf and on behalf of the group members. There are currently 57 group members registered with Maddens Lawyers, the solicitors for the plaintiff, registered as affected persons.

57. The group members to whom this proceedings relates, as pleaded by the plaintiff, are:

1. All persons who suffered loss or damage to property as a result of the fire;

2. All those persons who suffered personal injury (whether physical injury, or psychiatric injury) as a result of:

1. the Fire; and/or

2. the injury to another person as a result of the fire.

3. The legal personal representatives of the estates of any persons listed in (1) or (2) as at the commencement of this proceeding but have since died.

THE PLEADINGS

58. By a further amended statement of claim, filed 4 April 2017, the plaintiff sought damages for negligence and, in the alternative, nuisance. A summary of this pleading follows.

Negligence

Introduction

59. The particular elements of the pleadings will be extracted below. However, it is appropriate to note that the pleadings, with respect to negligence, create a distinction between two distinct elements of factual causation: loss occasioned by the fire igniting and loss occasioned by the fire spreading outside the Tip. For example, in the case of duty, the plaintiff submitted that the duty of the defendant to her and the group members was a duty to take reasonable care to prevent “a fire igniting at” [the Tip] and “any such fire spreading beyond the” Tip. In terms of the question of reasonable foreseeability the plaintiff pleaded that it was reasonably foreseeable that “waste at the tip could ignite and sustain a fire” and, “if such a fire commenced, the risk of bushfire of the spread”. It was pleaded the group members were dependent, for the protection of their person, property and interest, upon the defendant ensuring that “no fire would start” in the Tip, or alternatively “any such fire would not escape beyond” the Tip.

60. Similar pleadings were made with respect to standard of care in the context of pleadings as to precautions. In relation to breach a similar distinction, was again maintained in terms of the steps required that the defendant failed to take which were described as “Tip Management Failures”.

61. It is with these distinctions in mind and the conclusion the Court will reach with respect to factual causation that this judgment is divided into questions concerning the ignition of the fire, and, in particular, the origins and cause of the fire, and escape of the fire (which will consider the question of duty of care, as raised above, the corresponding issues relating to breach of duty and ultimately the question of causation). The two principal headings under the topic of negligence are intended, in a short hand way, to reflect that distinction.

Duty of Care

62. The plaintiff contends that the defendant had a duty to take reasonable care to prevent a fire igniting at the Tip and any such fire spreading beyond the Tip. In that respect the plaintiff relied on the following pleadings:

9. At all material time, [the defendant]:

a. had the ultimate responsibility for all activities associated with planning, design, construction, operation and maintenance of the Tip; and

b. had the right, and exercised that right, to the exclusion of other private persons, to:

i. operate and maintain the Tip; or

ii. give directions as to the operation and maintenance of the Tip.

c. exercised the right referred to in subparagraph ‘b’ above; and

d. in the premises, had practical control over [the Tip].

10. At all material times, it was reasonably foreseeable to [the defendant] that:

a. waste at [the Tip] could ignite and sustain a fire;

b. if such a fire commenced, the risk of bushfire of the spread and severity of the fire was not insignificant;

c. if a bushfire occurred, there was a not insignificant risk that the Plaintiff and Group Members would suffer:

i. loss or damage to property within the Fire Area and consequential losses including economic losses;

ii. damage to property and consequential losses including economic losses within areas:

1. affected by the physical consequence of fire, such as smoke or debris; or

2. the subject of emergency activity to prevent the spread of fire;

(“Affected Areas”)

iv. personal injury.

d. the risks referred to in subparagraph ‘c’ were likely to be higher on days of extreme bushfire risk.

11. At all material times, Group Members:

a. had no or no practical ability to prevent or minimise the risk of a fire starting in [the Tip]; and

b. were vulnerable to the impact or effect of such fire; and consequently

c. were dependent, for the protection of their person, property and interest, upon [the defendant] ensuring that:

i. no fire would start in [the Tip]; and further or alternatively

ii. any such fire would not spread beyond [the Tip].

12. In the premises, [the defendant] owed the Group Members a duty to take reasonable care to prevent:

a. a fire igniting at [the Tip]; and

b. any such fire spreading beyond [the Tip];

(the Duty)

63. In response to the above pleadings, the defendant pleaded the following in its further amended defence to the amended statement of claim (filed 12 April 2017):

1. The defendant admits it had responsibilities in relation to activities carried out at the Tip on or before 17 December 2009. However, the defendant disputed the accuracy of the plaintiff’s summary of the defendant’s “ultimate responsibility” at para 9(a) of the further amended statement of claim.

2. The defendant stated:

1. persons other than the defendant or its employees carried out regular maintenance activities at the Tip before 17 December;

2. the Tip was secured by a fence to which access was provided by way of a key; and

3. a copy of the key to the Tip had been issued to persons other than the defendant or its employees before 17 December 2009.

3. The defendant denied persons other than the defendant were excluded from carrying out maintenance at the Tip before 17 December 2009.

4. The defendant pleaded it did not know and could not admit:

1. the type of waste present at the Tip on the date of the fire “which was capable of igniting and sustaining a fire as alleged in paragraph 10(a)”; or

2. the risks identified by the plaintiff, in paras 10(b), (c) and (d) of the amended statement of claim (extracted above), were risks which the defendant knew or ought to have known on or before 17 December 2009.

5. The defendant denied the risk of a fire spreading from the Tip to surrounding properties and beyond was a risk which was reasonably foreseeable to it on or before 17 December 2009.

Standard of Care

64. The plaintiff, with respect to the standard of care, divided its pleadings into three distinct issues (which will be further discussed in the context of “Escape of Fire from the Tip”):

1. Reasonable foreseeability;

2. Probability and seriousness of “the risk of harm” occurring (see below);

3. Precautions.

65. The relevant pleadings are extracted in full:

Foreseeable risks of harm

13. At all material times, it was reasonably foreseeable that:

a. a fire could ignite from waste kept and deposited at [the Tip]:

b. a fire ignited within [the Tip] could spread within the tip, including by reason of:

i. no or no adequate fire breaks between different kinds of waste;

ii. the presence of trees, dry leaves or high grass within the tip;

iii. the presence of exposed combustible waste;

iv. the failure to suppress any fire after it commenced;

c. a fire ignited within [the Tip] could spread to surrounding areas causing bushfire, including by reason of:

i. matters set out in the preceding subparagraph; and

ii. no or no adequate fire break around the tip;

d. the matters referred to in subparagraph ‘c’ presented risks to human life and property (the Risk of Harm).

Probability and seriousness of the Risk of Harm occurring

14. At all material times:

a. [the Tip] was bordered to the south-east by the Walla Walla Golf Course;

b. the Walla Walla Golf Course was note maintained and had tall grass.

15. At all material times, the foreseeable local conditions for [the Tip] and its surrounds included:

a. dry environmental conditions;

b. low atmospheric humidity;

c. high ambient temperatures; and

d. strong winds.

16. By reason of the matters set out at paragraphs 13 to 15:

a. the probability of the Risk of Harm occurring if care were not taken was not insignificant; and

b. the likely seriousness of the harm occurring in the event that the Risk of Harm eventuated was potentially catastrophic.

Precautions

17. As a result of the matters pleaded in paragraphs 13 to 16, a reasonable person in the position of [the defendant] would have taken the following precautions against the Risk of Harm:

a. prepare and implement a fire management plan to minimise the incidence and impact of fire at [the Tip];

Precautions to reduce or control the spread of fire

b. create and maintain effective fire breaks around the perimeter of the facility and each kind of waste stored or deposited threat;

c. consolidate deposited waste into the appropriate areas;

d. remove fuel such as trees, dry leaves and high grass from the facility, including from and adjacent to each particular waste area, on a sufficiently regular basis so as to prevent dangerous build-up;

e. install and maintain fire-fighting equipment adequate to fight fires at any part of the facility;

f. undertake inspection and monitoring of the facility during periods of extreme bushfire risk, including by way of remote monitors or close circuit televisions;

Fire prevention precautions

g. ensure different kinds of waste were not and did not remain mixed together including by taking the following steps:

i. inspecting the waste as it was brought onto the site by the customer; and

ii. directing the customer to deposit the waste in the appropriate area or areas;

iii. supervising or otherwise verifying that the customer deposited the waste in the appropriate area or areas; and

iv. at the end of each operating day, inspecting the waste areas and undertaking any necessary rectification.

h. cover waste with cover material on a sufficiently regular basis so as to minimise the risk of fire, particularly in high risk bushfire periods;

Particulars

Waster should have been covered with daily, intermediate and final non-combustible cover material such as soil.

i. manage green waste piles so as to minimise risk of self-combustion, including, inter alia:

i. regularly aerating green waste piles;

ii. minimising their height; and

iii. disbursing them to non-combustible levels;

j. manage combustible material so as to minimise the risk of combustion including inter alia.

i. restrict, further and alternatively prohibit, receipt of combustible materials during bushfire season;

ii. ensure that all combustible materials are either disposed and buried or stored in appropriate areas or receptacles; and

iii. divide combustible waste of any particular kind into small separate piles so as to keep a pile of material that might ignite separate from other combustible material.

66. I now turn to a summary of the defendant’s reply to the above pleadings:

1. The defendant for the most part maintained and repeated its earlier replies within the context of duty. This will not be repeated.

2. The defendant did not admit para 13 and made the following specific response to para 13(c)(ii):

[T]he construction and maintenance of a fire break around the perimeter of the Walla Walla Rubbish Tip before 17 December 2009 was work carried out by a person other than the Defendant or its employees.

3. As to the golf course, its location and ownership, this has since been agreed by the parties in the agreed statement of facts.

4. The defendant did not admit the “foreseeable local conditions” for the Tip as pleaded by the plaintiff at para 15 of the further amended statement of claim.

5. The defendant otherwise denied paras 15-17 of the further amended statement of claim.

67. As to the reference to “the perimeter of the Walla Walla Rubbish Tip”, the evidence and submissions by both parties reveal that, in that instance, the perimeter concerned the netting fence within the Tip.

Breach of duty   

68. The plaintiff contended the defendant breached its duty of care by failing to take reasonable care by one or more of the following (referred to in the plaintiff’s pleading at para 18 as “Tip Management Failures”):

a. having no adequate fire management plan to minimise the incidence and impact of fire;

Particulars

Insofar as the plaintiff is able to say prior to discovery, the absence can be inferred from the failure identified below.

b. taking no adequate steps to reduce or control the spread of fire by reason of:

i. failing to create an effective fire break around the perimeter of [the Tip];

ii. failing to construct effective fire breaks around different types of waste;

iii. failing to, or to adequately, consolidate deposited waste into designated areas;

Particulars

In July 2009, the Council reduced the frequency of contracted maintenance works, including works to consolidate deposited waste, from weekly to fortnightly.

iv. failing to remove trees, dry grass and high grass present in the Tip in the period leading up to and including the date of the fire;

v. failing to install fire-fighting equipment;

vi. failing to, or to adequately, [monitor the Tip] during period of extreme bushfire danger; and

c. taking no adequate steps to prevent the spread of fire, including by reason of:

i. failing to, or to adequately, manage different kinds of waste so that they were not and did not remain mixed together;

Particulars

Insofar as the Plaintff is able to say prior to discovery, [the defendant] failed to or failed to adequately:

(a) supervise or otherwise verify that customers deposited waste in appropriate areas; and

(b) at the end of each operating date, inspect the waste areas and undertake any necessary rectification.

ii. failing to, or to adequately, cover waster with cover material on a sufficiently regular basis so as to minimise the risk of fire;

Particulars

Insofar as the plaintiff is able to say prior to discovery, [the defendant]:

(a) did not cover green waste; and

(b) covered general waste in part and fortnightly only.

In July 2009, [the defendant] reduced the frequency of contracted maintenance works, including ‘pushing’ waste and covering in part some waste, from weekly to fortnightly.

iii. failing to, or to adequately, manage green waste piles so as to minimise the risk of self-combustion;

Particulars

Insofar as the plaintiff is able to say, green waste was burnt in November 2009.

The Plaintiff refers to and repeats the particulars to subparagraph ‘ii’ above.

iv. failing to, or to adequately, manage combustible waste so as to minimise the risk of combustion.

Particulars

Insofar as the Plaintiff is presently able to say, [the defendant] did not or did not adequately:

(a) restrict or prohibit receipt of combustible materials during bushfire season; and

(b) ensure that all combustible materials are either disposed and buried or stored in appropriate areas of receptacles; and

(c) divide combustible waste of any particular kind into small separate piles so as to keep a pile of material that might ignite separate from other combustible material.

Insofar as the Plaintiff is able to say, a pile of tyres was present at [the Tip] burnt in the fire.

Further, the Plaintiff refers to and repeats the particulars to paragraph ‘b’ ‘iii’ above.

(the Tip Management Failures).

69. By reasons of one or more of the above Tip Management Failures, the plaintiff pleaded that the defendant breached its duty. This was identified as “the Tip Management Breach”.

70. In response to the breach as pleaded by the plaintiff, the defendant denied each paragraph and each and every particular pleaded therein, and made the following specific responses:

1. The defendant repeated its response at para 13(c) of its pleading (extracted above at [66(2)]) (in response to para 18(b)(i) and (ii)); and

2. The defendant said it inspected each of the four designated waste areas at the beginning and at the conclusion of each day the Tip was open for operation (in response to para 18(b)(i) and (c)(ii)).

Causation

71. The plaintiff contends that the fire was caused by a Tip Management Breach.

Loss and damage

72. As a result of one or more of the aforementioned Tip Management Failures the plaintiff submitted that substantial loss and damage was suffered.

Nuisance

73. Further and alternatively, the plaintiff contended the fire substantially and unreasonably interfered with the use or enjoyment of the interests in the land held by the plaintiff. As a result of nuisance caused by the defendant the plaintiff suffered loss and damage.

74. The plaintiff’s pleading, in this respect, is extracted below:

Creation of nuisance

22. The Fire was caused by [the defendant’s] Tip Management Failures.

Foreseeability of loss and damage

23. At all material times:

a. the matters in paragraph 10 and 13; and

b. the risk that a fire ignited in [the Tip] would unreasonably interfere with the use and enjoyment of the interest in the land:

i. over which the fire passes; further or alternatively

ii. that was affected by the physical consequences of the fire or by emergency response to the fire;

iii. by the Plaintiff and Group Members;

were reasonably foreseeable

Interference with interests in land

24. The Fire substantially and unreasonably interfered with the use or enjoyment of the interest in land held by the Plaintiff and Group members.

[Particulars omitted.]

25. In the circumstances set out in paragraphs 1-24, the Plaintiff and the Group Members suffered nuisance created by [the defendant] (the Nuisance).

Loss and damage

26. As a result of the Nuisance, the Plaintiff and Group Members have suffered loss and damage.

75. In respect of the claim of nuisance, the defendant either denied or otherwise did not admit paras 22-26 of the plaintiff’s pleading.

Common Questions

76. The pleading also set out questions of law or fact common to the claims of the plaintiff. They were as follows:

1. Whether the General Duty was owed by the Council to the Plaintiff and the Group Members, and it so, the content of the General Duty;

2. Whether the Tip Management Failures were breaches of the General Duty;

3. Whether the Tip Management Breaches caused the Fire;

4. Whether the Plaintiff and Group Members suffered nuisance created by the Council; and

5. What are the principles for identifying and measuring compensable losses suffered by the claimants resulting from the breaches of duty or negligence alleged herein.

77. The defendant did not accept the above questions as “necessarily common” to the claims made by the plaintiff and all group members, owing to “the nature and content of each duty, and the circumstances in which any duty is breached, will depend on the circumstances in which they arise”. Accordingly, in response, the defendant annexed a document titled “Common Questions of Law or Fact” to its pleadings. However, owing to the events that followed it is unnecessary to turn to that document in any further detail.

78. On 31 March 2017, the parties jointly filed a list of common questions of law or fact, which are annexed to the judgment as Annexure C.

Relief

79. The plaintiff sought relief in the form of damages, costs, interest and such further or other orders as the Court thinks fit.

80. This judgment concerns the question of liability. The economic loss of the plaintiff was particularised in Annexure A to the plaintiff’s further amended statement of claim. That quantum was admitted by the defendant.

81. For completeness, I note that counsel for the plaintiff raised a further claim “for inconvenience”, with respect to the plaintiff’s requirement to relocate and the issues associated with the same. Counsel for the defendant noted that the damages agreed were not understood to include an amount with reference to that claim (which counsel for the defendant contended had not been particularised). Both parties noted the issue, in that respect, was apprehended to be of “relatively small moment” but the contention was noted on the record.

NEGLIGENCE: IGNITION OF THE FIRE AT THE TIP

82. Upon accepting the fire started within the vicinity of the Tip, the parties refined the issue in the common questions as follows: “how did the fire in the vicinity of the Walla Walla Tip on 17 December 2009 start?”. The answer to that question will, in this matter, resolve the issue of causation with respect to any breach of duty to take reasonable care to prevent a fire igniting at the Tip. Questions of causation as to a breach of a duty to prevent fire escaping beyond the Tip will be considered under a separate heading. Before venturing to discuss the origin and cause of the fire, I will discuss the relevant legislation and authorities bearing on the question of causation, both as to the ignition of the fire and escape of the fire.

Relevant Legislation on Causation

83. The question of causation is governed by s 5D of the Civil Liability Act2002 (NSW). The relevant sections of that Act are set out in Div 3 and extracted below:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

84. The application of the Civil Liability Act requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the Civil Liability Act.

Relevant Authority on Causation

85. The traditional approach to the question of causation requires a determination of a question of fact, namely what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the “but for” test or “causa sine qua non”.

86. The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 (“March v Stramare”) (at 430) and summarised as follows:

1. The application of the “but for” test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and

2. The applicability of value judgments and considerations of policy.

87. In March v Stramare, the High Court ruled that the “but for” test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense.

88. This development addressed the oft-cited difficulty in application of the “but for” test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a “supervening cause” or “novus actus interveniens”, are well established: March v Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 (“Chapman v Hearse”) at 124-125. This difficulty was summarised by Mason CJ (March v Stramare at 431-432) and extracted below:

… the “but for” test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the “but for” test.

The facts of, and the decision in, M'Kew illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action.

The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.

…

As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the “but for” test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.

89. Deane J also relevantly observed (March v Stramare at 435–436):

… the mere fact that something constitutes an essential condition (in the “but for” sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a “cause” of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a “cause” of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a “cause” of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred “but for” the original gift. As Lord Reid pointed out in Stapley (at 681):

The question [of ‘what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.

90. Further relevant developments by the High Court, cited in March v Stramere, included the following:

1. In Chapman v Hearse, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, “it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act” (at 122).

2. In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725):

A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [[1970] SC(HL) 20 at 25]. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 [at 124–5]. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid, at p 122).

91. The two-fold common law approach in March v Stramare, set out above, is now reflected in s 5D of the Civil Liability Act. A determination that the defendant’s negligence caused particular harm requires satisfaction of the following:

1. whether the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and

2. whether it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

92. Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of “probable causal connection between the breach of duty and the harm suffered”: C Sappideen and P Vines (eds), Fleming’s The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70].

93. Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a).

94. In Carangelov State of New South Wales [2016] NSWCA 126 (“Carangelo”) at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect:

[71] Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41]-[43]).

Evidence: Point Of Origin and Cause of the Fire

95. The evidence bearing upon these issues comprises three components, summarised as follows:

1. Physical evidence at or about the time of the fire, principally in the form of photographs, before the fire in or around October 2009 (set out below at [142]) and after the fire by, inter alia, Mr Stephen Walker (a Fire Investigator with the Rural Fire Service who wrote a report on the fire) on 19 December 2009.

2. The evidence of various persons, including eye-witness accounts by local residents (including those discussed above), that made observations about the Tip and surrounding environment and other conditions both before and/or after the fire. In addition to the evidence of eye-witnesses, the Court also received evidence from Mr Walker, the Fire Investigation Report and NSW Rural Fire Service Statement.

3. Expert evidence which traversed both the questions of the origin and the cause of the fire and issues relating to the spread of the fire although there was some overlap in the discussion of each topic.

Expert Evidence

96. It is convenient at this juncture to set out the expert evidence. The experts and their respective reports were as follows:

1. Mr Fabian Crowe, “Fire Report”, dated September 2016. Mr Crowe is employed by Bushfire Education, Training & Consultancy Services.

2. Ms Danielle O’Toole, “Expert Witness Report”, dated 31 October 2016. Ms O’Toole is a Technical Discipline Manger in the Engineering department at SLR Consulting (her report was limited to an opinion as to the risks of a fire spreading within and outside the Tip and whether they could be reduced or controlled).

3. Mr Murray Nystrom, “Preliminary Report: Fire Investigation”, dated 15 December 2011. Mr Nystrom is a Director at Australian Forensic Pty Ltd.

4. Dr Tony Green, “Expert Opinion Report”, dated 4 November 2016. Dr Green is a Principal Visiting Fellow at the School of Computer Science and Engineering Software, Faculty of Infomatics, University of Wollongong.

97. On 16 February 2017, the aforementioned experts conducted a conclave and a joint report of the experts was filed 20 February 2017 (“the Joint Report”). Concurrent evidence was heard before this Court on 18 and 19 April 2017 (“the concurrent evidence”). The Joint Report and the concurrent evidence, together with individual reports of each expert, make up the expert evidence in the proceedings.

98. By the evidence of the proceedings, as between the parties and as between the experts, there were five causes identified as to how the fire ignited in the Tip. These were reflected in the document entitled “Questions for experts’ concurrent evidence” (see Annexure E).

99. There was also a considerable amount of consensus reached, with respect to the question of the cause of the fire, predominantly arising out of the conclave and the Joint Report (although Dr Green maintained his theories of lightning and deliberate ignition).

Origin of the Fire

100. A joint statement of agreed facts was filed 31 March 2017. It was agreed between the parties that “a fire started within the formal boundary of the area of land on which the Walla Walla Rubbish Tip was located”. A combination of lay and expert evidence narrowed the fire origin to the western area within the confines of the Tip.

101. The plaintiff maintained that the location of the commencement of the fire was at the top of the bund rather than west of the bund. Reliance was placed, in this respect, upon a grid reference provided by Mr Walker. Dr Green was hesitant to place reliance on a grid reference in the absence of a map, noting that “grids” are usually “anything from 50 metres to hundred metres, 200 metres, as a square area, and without the map to go with it you can't actually tell the area that he's talking about”. Nonetheless, the plaintiff contended that such a conclusion was consistent with the accounts of eyewitnesses, including Mr Pumpa and photographs of the Tip taken on 19 December 2009.

102. The defendant contended that no such conclusion was available on the evidence. I agree. There is no basis in the evidence for the forming of such a precise conclusion as to the location of the commencement of the fire. The evidence only permits a conclusion, on the balance of probabilities, that the fire commenced in the western side of the dumping area. My reasons for that conclusion are discussed below.

103. On 18 December 2009, Mr Walker was requested to investigate the course and origin of the fire. He attended upon the Albury Fire Control Centre at 5.15pm, that same day, and obtained details of the incident. He copied and examined available records and reports, including situation reports, local area maps, recorded weather data and line scan imagery.

104. Mr Walker produced a statement on 17 February 2010, which outlined and recorded his determinations included in his Fire Investigation Report (not dated). The investigation report included photographic evidence, weather observations for Albury and a map of the extent of the fire (see Annexure D). (Mr Walker’s evidence was limited to considerations relevant to cause of the fire and origin. It did not address issues of spread of the fire and/or fuel reduction measures).

105. On 19 December 2009, Mr Walker conducted an examination of the entire fire scene and concluded that the “general area of origin” was inside the western area of the Tip. This conclusion was supported by the substantial damage he observed in the west. Further, aerial analysis of the site revealed that strong north-west winds pushed the fire in a south-east direction. The strength of the wind resulted in the head of the fire expanding in width as it moved forward (see Annexure D).

106. A summary of Mr Walker’s examination and findings follows:

1. On 19 December 2009 he met with Senior Constable Adam Larkin, Forensic Services Group of the New South Wales Police. They travelled, together with Superintendent Joe Knox, in an aerial reconnaissance to identify the fire area, direction of travel, and impact of the fire on houses in Gerogery.

2. Mr Walker identified the following macro indicators, with respect to fire area, the direction of travel and the impact of the fire, during the course of the aerial investigation (“the macro indicators”):

1. “The burnt area to the east of the Olympic highway was much wider than to the west. This indicated to me that the fire had originated further northwest and burnt towards the southeast”; and

2. “[Travelling west north-west] I saw more evidence to support the direction fire travel being from further west, indicators supporting this were, trees scorched on the western side of residences yet little or no evidence of scorching was visible on the eastern side”.

3. The macro indicators revealed the fire had burnt towards the south east and enabled Mr Walker to identify an area south of Walla Walla, on the west side of Walla Walla-Jindera Road as an area of interest. This area was later confirmed by him as “the Walla Walla tip site”.

4. Further observations were made at ground level. Mr Walker travelled by vehicle, with Senior Constable Larkin, to Gerogery, back along the direction that the fire travelled, and proceeded to the entrance to the Tip. The following observations were reported:

1. From the intersection of the Walla Walla-Jindera Road and West street, Mr Walker confirmed “the direction of fire travel, being from a westerly direction. Indicators in this area included intense scorching of large pin trees on the east side of West Street, oxidization of iron fencing in the same area, leaf freeze on trees on private property, east side of West Street, scorching and charring on fence posts and power poles”.

2. “From West Street, looking towards the northwest, the paddocks were burnt bare. This was due to the intensity of the fire and the speed in which it travelled. Two large gum trees in the paddock showed no effect from leaf scorch, such was the pace of the fire yet one tree was alight within burning, from the inside out. I was satisfied that the origin of this fire was located further west”.

3. Travelling west along the Gerogery Walla Walla Road, Mr Walker saw “many indicators” that confirmed the fire origin being “further west”, namely, “leaf freeze on trees and shrubs, scorching on posts and poles, charring on posts [and] scorching on buildings”.

4. Turning left from Gerogery Walla Walla Road on to the Walla Walla-Jindera Road, Mr Walker reported that “[t]he areas on both sides of the road were unburnt”. However, he noted that the paddocks west of the road, situated on private land, had “low intensity burn… along the northing boundary, outside the tip”. This “low intensity burn” was identified as “back burn”, controlled burning in order to strengthen the northern containment line.

5. As Mr Walker travelled closer to the Tip, he observed “evidence of leaf freeze pointing towards the east southeast, fence posts with wrap around sooting on them and scorched shrubs”. He reported that “these all indicated that the fire had travelled from west to east”.

404. As earlier mentioned the experts gave concurrent evidence and the parties formulated questions for that concurrent evidence, which are annexed to this judgment (see Annexure E). Each question correlated with the corresponding question within the Joint Report. No question was raised by the Court or the counsel as to question 6 or 7.

405. It is convenient to repeat the question which corresponded to question 8 of the Joint Report. That question was:

Explain how each reasonable fire precaution identified in A6 would or may have reduced the risk of ignition and/or spread of fire at the Tip.

406. No question was directly put by senior counsel for the plaintiff as to the opinion of the experts in the Joint Report in answer to question 8 but questions were asked which were referrable to the question formulated for the concurrent evidence. Senior counsel for the defendant asked only two questions of Mr Nystrom in this respect. First, whether the opinion expressed in answer to question 8 were opinions he formed as part of the Joint Report. Secondly, whether he adhered to that view in his concurrent evidence. He gave an affirmative answer to both questions.

407. The following is a summary of evidence given in the course of the examination of the experts by the plaintiff’s senior counsel as to concurrent question 8:

1. Dr Green agreed that the reduction of grass fuel by slashing, controlled burning or chemical reduction would lessen the rate and intensity of the spread of fire. That step would also lessen the prospect of spotting.

2. Dr Green gave the following evidence in cross-examination by the senior counsel for the plaintiff:

1. If a fire is running in short grass, a firebreak will be more effective particularly if it is clear.

2. Shorter grass will not eliminate spotting but it will reduce it and make a firebreak more effective.

3. The effectiveness of a firebreak will depend on the flame length above the fire because “if you’ve got flame length that effectively goes across that gap for any reason then you get pre-heating and the fire takes off more rapidly than it would than if there was no flame there and a single point of connection”.

4. The use of cells to store rubbish rather than a bund reduces the fire risk.

5. Fuel reduction and firebreaks will limit the spread of fire depending upon their quality.

6. If fuel is reduced by cutting grass, then there is a dramatic decrease in the opportunity for the fire to cross a firebreak, irrespective of wind strength because the source of spotting has been removed.

3. Ms O’Toole gave evidence that in designing a tip what was first and foremost in stopping or inhibiting the spread of fire was a firebreak. Also important is limiting the tipping area and the segregation of waste.

4. Mr Nystrom stated that short grass is going to burn substantially more slowly than tall grass. A firebreak is an effective tool. He considered the firebreak on the southern side of the Tip was ineffective because there were trees over the firebreak dropping timbers, leaves and bark. A firebreak should be ideally 10 metres and would be clear.

5. In the further questions raised with respect to question 4, Dr Green indicated an answer to question 4(a) that the degree to which incombustible material between fuel centres inhibits fire spread very much depends upon the weather conditions and fuel loads. The larger the fuel load, the higher the flames. The spread of incombustible material will influence the spread of fire, particularly under windy conditions. There are variations but there is connectivity between fuel and extreme conditions such as strong winds.

6. Mr Crowe expressed the view that the question of fuel needed to be looked at both in terms of its quantity and its arrangement.

7. As to the second question under paragraph 4(b), Mr Crowe indicated that he did not know the answer to the question of how long did it take for the fire to propagate under the influence of wind. That question depended upon the quantity and arrangement of fuel and the connectivity to which Dr Green had referred. Dr Green indicated that flame spread is really dependent upon the flame length and how close that flame is to the ground. As wind increased, flame tilts towards the ground and, in the result, the radiation flux hitting the front of the flame front increases and the fire spreads more quickly.

8. Mr Nystrom was of the view that under the influence of wind the fire was able to escape in about 20 minutes. Dr Green indicated that if the fire was travelling up-hill it would travel much more quickly. Mr Crowe also indicated that the period of propagation was dependent upon the nature, arrangement and quantity of the fuels.

Conclusion: Causation – Escape of the Fire from the Tip

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.

409. Whilst I have found breach of the duty in relation to the failure to sufficiently take some of the pleaded precautions (where a reasonable person in the defendant’s position would have taken those precautions and the defendant was found to have insufficiently done so), I agree with the submission of the defendant that the evidence in the case rises no higher than that, some actions, steps or precautions which might have been taken would have influenced the risk of fire spread: Carangelo at [71].

410. As earlier mentioned, the experts agreed that six out of seven of the precautions identified in the answer question 6 in the Joint Report were reasonable fire precautions. The experts did not determine whether the Tip was adequately managed or managed reasonably or what the defendant should have done. .

411. When the consideration of the “presence of a person” is put aside (noting that, the Court has found that, if sought, the step of placing a person at the Tip who could use fire fighting equipment and the placement of that fire fighting equipment at the Tip were not that required of a reasonable person in the defendant’s position, for the purposes of s 5B(1) of the Civil Liability Act), the experts’ opinion was that the measures identified in the answer to question 8 would have only “slowed the development of the fire” subject to the particular wind conditions at any time being a further important consideration. The highest the opinion of the experts reached as to the spread of the fire, assuming (contrary to the evidence) that the prevailing conditions did not cause a quick spread of the fire, was that “the slowing effect of the other measures might have bought sufficient time for the fire fighters to successfully intervene”. It follows, as the defendant submitted, that persons eminent in the field in considering the questions as to ignition and spread of fire, were not prepared to express an opinion that it was more likely than not that the measures would have slowed the fire to such an extent as to provide sufficient time for fire fighters to successfully intervene.

412. Senior counsel for the defendant correctly submitted, in my view, that the effect of the evidence of the experts as to the question of causation that the fire “might have bought sufficient time for the fire fighters to intervene” was as follows:

1. There is nothing probable about the eventuality;

2. All that the proposition entails is that the risk of spread might have been lower in circumstances;

3. It was not more probable than not that any action on the part of the defendant would have arrested the spread of the fire.

413. Further, there is nothing in the totality of the evidence before the Court which would warrant a different conclusion. As I have earlier found, Mr Grosse was the first to arrive at the fire. He found that, at that time (about 1.45pm), the fire had already travelled through the perimeter fence of the Tip on the southern side and was moving quickly towards Walla Walla-Jindera Road. There was very tall grass within the dumping area and in the grass area outside the perimeter of the Tip. Mr Grosse abandoned the fire fight at the Tip due to the topographical and access difficulties. He moved to fight the fire from a different vantage point. However, the fire advanced sufficiently rapidly across the golf course. He retreated the Walla Walla-Jindera Road. By the time he reached that location the fire had already jumped the road.

414. Mr Grosse was questioned as to whether he first entered the golf course before travelling to Walla Walla-Jindera Road. It appears that he may have momentarily done so and moved on because the fire had “raced up” and “beat” Captain Jacob and himself. He and Captain Jacob travelled to the road, but again the fire had already crossed. The total time from cutting the bolts to the gate until the fire jumped the road was 10 to 15 minutes.

415. It follows that the submission by the defendant that the evidence of Mr Grosse supports or is consistent with the opinion of the experts must be accepted. The earliest person to arrive at the Tip to fight the fire was too late to prevent the escape of the fire and, in the result, it cannot be found, on the balance of probabilities, that the fire may have been stopped by the measures taken.

416. It is true that the evidence reveals that by the various measures the risk of the spread of the fire might have been lower in the circumstances but it is another matter altogether to say that the progress of the fire may have been slowed to such an extent as to meet the time of the arrival of the first fire fighter who could have arrested the fire at the Tip.

417. This conclusion is a fortiori when regard is had to the fact that, as I have found, both the location of the commencement and the cause of the fire is unknown. That consideration has an additional, significant adverse impact upon any finding of factual causation in favour of the plaintiff as those important elements are relevant to any consideration as to whether the pleaded measures would have sufficiently slowed the spread of the fire so as to permit the effective intervention of fire fighters.

418. Overall, as to the claim based on the escape or spread of the fire, I find the plaintiff has proved the existence of a duty owed by the defendant and the defendant has breached that duty in failing to take certain measures to prevent the spread of the fire. The plaintiff has, however, failed to prove causation, namely, that the negligence established caused the harm suffered by the plaintiff or, to use the language of s 5D(1)(a), that the negligence was a necessary condition of the occurrence of the harm.

419. The plaintiff case on this aspect of her claim must fail.

NUISANCE

Legal Principles

General Principles

420. The act (or omission) on which a claim in nuisance is based may be one indirectly causing a physical injury to land, or a substantial interference with its enjoyment or an interference with rights over land: R Balkin and J Davies, Law of Torts(4th ed, 2009, LexisNexis Butterworths) at 453 [14.7].

421. A nuisance is an unreasonable interference with the use and enjoyment of land: an “invasion of the common law rights of an owner or occupier of land”: Hargrave v Goldman (1963) 110 CLR 40 at 60 (per Windeyer J).

422. The cause of action belongs only to the person with property rights. A plaintiff can only sue in nuisance if he or she has an interest in the land affected: Law of Torts at 466 [14.33]. However, those who merely reside with the owner or tenant, even though as a member of his or her family, have no standing to sue in nuisance, despite the fact that the damage complained of is suffered by all members of the household: Law of Torts at 466 [14.33], citing Oldham v Lawson (No 1) [1976] VR 654.

423. 375   In order to have standing to bring an action in private nuisance, the plaintiff must have some property rights in or over the land affected, or must be an occupant of that land. Further, only unreasonable interferences are actionable in nuisance: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287; [2012] WASCA 79 (“Southern Properties”) at [118].

424. Consistent with the terms of s 5A(1) of the Civil Liability Act, in Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 (“Warragamba Winery Pty Ltd”), the Court said (at [669]):

[669] Since Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 the common law of Australia concerning liability for permitting a fire to get out of control has been absorbed in the tort of negligence.

(See also Melaleuca Estate Pty Ltd v Port Stephens Council (2006) 143 LGERA 319; [2006] NSWCA 31 per Giles JA at [58] (with McColl JA and Hunt AJA agreeing); Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 (“Gales Holdings Pty Ltd”) per Emmett JA at [144] and Leeming JA at [276]-[283], namely, damages for nuisance can only be recovered if the loss is reasonably foreseeable, and not merely loss suffered as a direct result of the nuisance).

425. In considering nuisance and whether or not an occupier has wrongfully interfered with another’s enjoyment of land, the test to apply is what is reasonable in the circumstances, having regard to the ordinary uses of a particular society: Gales Holdings Pty Ltd at [132], citing Elston v Dore (1982) 149 CLR 480 at 487-488. In this respect, while negligence is not essential in the determination of nuisance, fault of some kind is almost always necessary: Gales Holdings Pty Ltd at [139].

426. It is the foreseeability test for remoteness which applies in nuisance as it does in negligence in order to assist in determining the amount of damages that may be awarded: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 (“Wagon Mound (No 2”)).

427. The test of whether an interference is unreasonable is objective: Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 at [247]. In determining whether or not an interference is unreasonable, the court balances the desire of the owner or occupier to use and enjoy property rights without interference against the desire of others to undertake the activity that causes the interference (see Directors of St Helen's Smelting Co v Tipping (1865) 11 ER 1483, per Lord Westbury LC at 650–651; Southern Properties at [119]), perhaps limited by the foreseeability of the harm likely to be caused by the interference as a measure of reasonableness: see The Wagon Mound (No 2) at 640, cited in Stockwell v State of Victoria [2001] VSC 497 at [608]–[609] (per Gillard J). It is not the conduct of the defendant that causes the interference that must be unreasonable, but rather the interference with the Plaintiff’s use or enjoyment of their property.

Statutory Authority

428. The defendant succinctly and correctly set out the relevant authority in nuisance, with respect to statutory authorities. The following derives from that analysis.

429. Pursuant to the common law, if a statute has authorised the doing of something which, after taking all reasonable care and adopting such precautions as are reasonable in the circumstances, nevertheless constitutes a nuisance, then Parliament must be taken to have authorised a nuisance to that extent: Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354 at 369 per Isaacs J.

430. In Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46, the High Court dealt with a Council’s reliance in answer to a claim in nuisance on the defence provided for by s 733(1) of the Local Government Act. At [16], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

[16] However, neither at trial nor in the Court of Appeal does attention appear to have been drawn to a line of authority marshalled by the English Court of Appeal in Marcic v Thames Water Utilities Ltd ([2002] QB 929 at 988). This indicates that a body such as the Council is not, without negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise, its statutory powers. In this Court, it had been remarked by Gavan Duffy and Starke JJ in Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 197:

“And though it was said in argument that the Company's claim was founded upon either trespass or nuisance or negligence, still the liability of the Corporation must depend upon whether, in the exercise of its statutory powers, it has acted negligently, so as to do unnecessary damage to the Company.”

431. In the identified decision of Marcic v Thames Water Utilities Ltd [2002] QB 929, Lord Phillips said (at [60]):

[60] In Department of Transport v North West Water Authority [1984] AC 336 statutory authority was invoked by way of defence by a water undertaker in answer to a claim in nuisance in respect of damage caused by a burst water main. Webster J set out the following propositions, which were subsequently approved by the House of Lords, at p.344:

“1. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed upon it by statute: see Hammond v Vestry of St Pancras (1874) LR 9 CP 316. 2. It is not liable in those circumstances even if by statute it is expressly made liable, or not exempted from liability, for nuisance: see Stretton’s Derby Brewery Co v Mayor of Derby [1894] 1 Ch 431, and Smeaton v Ilford Corpn ([1954] Ch 450. 3. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if, by statute, it is not expressly either made liable, or not exempted from liability, for nuisance: see Midwood & Co Ltd v Manchester Corpn [1905] 2 KB 597; Longhurst v Metropolitan Water Board [1948] 2 All ER 834; and Dunne v North Western Gas Board [1964] 2 QB 806. 4. A body is liable for a nuisance by it attributable to the exercise of a power conferred by statute, even without negligence, if by statute it is expressly either made liable, or not exempted from liability, for nuisance: see Charing Cross Electricity Supply Co v Hydraulic Power Co [1914] 3 KB 772...”

432. The functions carried out by the defendant pursuant to Ch 6 of the Local Government Act (which include “waste removal, treatment and disposal services and facilities”) and the Crown Lands Act are exercises of statutory power or duty.

433. In accordance with the reasoning of Webster J in Department of Transport v North West Water Authority [1984] AC 336 at 344, in the absence of negligence, the defendant is not liable in nuisance.

434. Further, in Warragamba Winery Pty Ltd, the Court said (at [673]):

[673] I have noted that the plaintiffs have sued in nuisance in the alternative to their other counts. In Fleming at 403 the authors note that many cases concerning fire damage have included claims for nuisance but that the common response of courts in such cases has been that such a claim cannot succeed without proof of negligence...

Submissions of Parties

The Plaintiff

435. I now turn to a summary of the submissions advanced by the plaintiff pursuant to her claim in nuisance:

1. The defendant is also liable in nuisance as it unreasonably interfered with the plaintiff’s use and enjoyment of her property at Gerogery.

2. The relevant test, as applicable in the present case, is whether it was reasonably foreseeable to a person in the position of the defendant that neighbouring properties would be exposed to a threat of damage, which is foreseeably likely to result from the state of its premises. That is, whether it was reasonably foreseeable that a poorly managed and maintained tip might cause or contribute to the ignition of a fire which might spread to adjoining properties.

1. In light of the evidence before the Court, the plaintiff submitted the Tip was a potential nuisance in the sense that it was a potential source of ignition of a fire, which could spread beyond its boundary having regard to the state of the premises.

2. There is no doubt that the nature of the harm suffered by the Plaintiff – property damage caused by fire – was foreseeable to the Shire. Further, that fire, in destroying and/or damaging property, is unreasonable interference. Instances of nuisance by material damage to property include damage by fire: Goldman v Hargrave (1966) 115 CLR 458; Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108.

3. No further argument was advanced in oral submissions beyond stating that nuisance is an action that exists independent of negligence and acknowledging that “the negligence has an influence in the question of foreseeability”.

The Defendant

436. The defendant did not advance any written or oral submissions, with respect to the plaintiff’s claim of nuisance, beyond an outline of the relevant authority (as outlined above). In reliance on that authority, in particular that which concerns statutory authority, the defendant contended that “if the plaintiff’s claim in negligence fails, the claim in nuisance should also fail”.

Conclusion: Nuisance

437. In my view, the authorities make clear that the failure of the plaintiff’s claim in negligence in this matter should result in the claim under nuisance also being rejected. In any event, I consider the defendant was involved in the exercise of functions conferred by statute and, in the absence of an action in negligence, cannot be liable in nuisance.

SECTION 43A OF THE CIVIL LIABILITY ACT

438. In the circumstances, it is unnecessary to consider the defence raised by the defendant under s 43A of the Civil Liability Act.

CONCLUSION

439. Upon the findings made by the Court as to causation, the plaintiff’s claim in negligence must fail and an order for costs made in favour of the defendant. So too must the claim in nuisance fail.

440. It is appropriate that the parties be given the opportunity of making further submissions on the common questions. The parties should confer as to those questions. I will make directions for the filing and serving of their responses in the light of this judgment. The parties shall have liberty to make further submissions as to costs.

ORDERS

441. In all the circumstances, the Court orders:

1. The plaintiff’s claim is dismissed.

2. Subject to further orders of the Court, the plaintiff shall pay the defendant’s costs of the proceedings as agreed or, in the absence of agreement, as assessed.

3. In the event agreement as to answers to the common questions, the plaintiff shall file and serve a joint answer to the questions within 21 days of this judgment. If there is disagreement as to the answer to the common questions, the parties shall file and serve their respective versions of the answers within the same timeframe. The matter will then be listed for directions, at a date to be fixed, to resolve any disagreement as to the common questions.

4. In the event any application is made by the parties as to costs such application(s) and a summary of submissions in support thereof shall be filed and served within 21 days of this judgment. In the event of such application(s), the Court will list the matter for directions.

ANNEXURES

Annexure A (580 KB, pdf) 

Annexure B (1.89 MB, pdf)

Annexure C (1.43 MB, pdf)

Annexure D (1.05 MB, pdf)

Annexure E (1.08 MB, pdf)