Woodhouse v Fitzgerald

[2021] NSWCA 54

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Woodhouse v Fitzgerald [2021] NSWCA 54

Hearing dates:

1, 2 December 2020

Decision date:

09 April 2021

Before:

Basten JA at [1];
Meagher JA at [132];
Payne JA at [133]

Decision:

(1)   Allow the cross-appeal and set aside orders 1, 2, 3 and 4 made in the Common Law Division on 1 May 2020.

(2)   In place of those orders:

(a)   dismiss the further amended statement of claim;

(b)   order that the plaintiff pay the defendants’ costs of the trial.

(3)   Dismiss the appeal.

(4)   Order that Mr Woodhouse pay 50% of the respondents’/cross-appellants’ costs in this Court.

Catchwords:

TORTS – negligence – duty of care – scope of duty of landowner to neighbouring landowner for fire – vicarious liability – non-delegable duty – controlled burn by Rural Fire Service on private land – reignition and spread of undetected fire – damage to neighbouring property – RFS with statutory immunity to liability – RFS exercised reasonable care – whether landowner liable

TORTS – nuisance – private nuisance – controlled burning – whether controlled burning can constitute private nuisance – whether strict liability

TORTS – property damage – apportionable claim – concurrent wrongdoers – whether a party with statutory immunity can be a concurrent wrongdoer

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5Q, 34, 35, 36, 39; Pt 4

Law Reform (Vicarious Liability) Act 1983 (NSW), s 10

Rural Fires Act 1997 (NSW). ss 8, 10, 128; Pt 2

Cases Cited:

Black v Christchurch Finance Co [1894] AC 48

Brand v Hammersmith and City Railway Co (1867) LR 2QB 223

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR; [1994] HCA 13

Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264

Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56

Heaven v Pender (1883) 11 QBD 503.

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14

Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6

Mitchell Morgan Nominees Pty Ltd v Vella (2011) NSWCA 390; 16 BPR 30,189

Northwestern Utilities v London Guarantee & Accident Co [1936] AC 108

Overseas Tankship (U.K.) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617

Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367

Rylands v Fletcher (1866) LR 1 Ex 265

St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666; [2009] VSCA 245

Trajkovski v Simpson [2019] NSWCA 52

Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74

Texts Cited:

Commonwealth of Australia, Inquiry into the Law of Joint and Several Liability: Report of Stage 2 (1995)

Newark, “The Boundaries of Nuisance” (1949) 65 LQR 480

Sappideen and Vines (eds) Fleming’s the Law of Torts (10th ed, Lawbook Co, 2011)

Category:

Principal judgment

Parties:

Brian Herbert Woodhouse (Appellant/Cross-Respondent)
Barry Thomas Fitzgerald (First Respondent/First Cross-Appellant)
Virginia Eileen McCoy (Second Respondent/Second Cross-Appellant)

Representation:

Counsel:
Mr GJ Parker SC / Mr P Tierney (Appellant/Cross-Respondent)
Mr R Cheney SC / Mr H Pintos-Lopez (Respondents/Cross-Appellants)

Solicitors:
Blaxland Mawson & Rose (Appellant/Cross-Respondent)
Holman Webb Lawyers (Respondents/Cross-Appellants)

File Number(s):

2020/151701

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 450

Date of Decision:

27 April 2020

Before:

Schmidt AJ

File Number(s):

2018/249544

HEADNOTE

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

The appellant and the respondents own neighbouring properties in southern New South Wales. On 20 and 28 August 2012, the Rural Fire Service (RFS) conducted controlled burning on the respondents’ property, at their request, to destroy weeds. On 5 September 2012, a hollow tree on the property reignited and a burning branch was snapped and carried by strong winds onto the appellant’s property, where the fire spread, causing significant damage and destroying his house.

The appellant (then the plaintiff) brought proceedings against the respondents (then the defendants) seeking damages for the harm caused by the fire. He claimed that the defendants had a non-delegable duty of care to prevent the foreseeable risk of harm arising from the spread of fire, and that they had breached their duty. The plaintiff also claimed that the fire constituted an act of nuisance which could have been avoided by taking reasonable care. The defendants alleged contributory negligence on the plaintiff’s part.

On 27 April 2020 the Supreme Court found that the damage to the plaintiff’s property would not have occurred but for the negligence of the RFS. The Court also made a finding of contributory negligence on the part of the plaintiff, and assessed the loss at $1.3 million, apportioned between the respondents, the RFS and the plaintiff.

On appeal, the appellant challenged the finding of contributory negligence and the reduction of damages on account of contributory negligence. He also challenged the failure to award pre-trial interest. The respondents filed a cross-appeal, challenging the finding that their duty of care to the appellant was non-delegable, that both they and the RFS had breached their respective duties of care, and the trial judge’s assessment of loss suffered by the appellant. The issues on appeal were whether:

1. the escape of fire from a controlled burn constitutes a nuisance;

2. the respondents were negligent in allowing the fire to escape;

3. the RFS was negligent in allowing the fire to escape;

4. the respondents were vicariously liable for the conduct of the RFS;

5. the appellant was contributorily negligent;

6. liability was to be apportioned between the respondents and the RFS;

7. damages for rebuilding the appellant’s house were correctly assessed.

Held by Basten JA (Meagher JA and Payne JA agreeing) dismissing the appeal and upholding the cross-appeal:

Issue (1) – whether escape of fire from a controlled burn constitutes nuisance

1. Although the appellant had pleaded his case in negligence as arising from the failure to prevent the escape of the fire onto his land, he also sought to claim in nuisance. Private nuisance is not established merely as a result of harm resulting from an emanation from the defendant’s land. The use of the land must be out of the ordinary, unreasonable or otherwise inappropriate: [47]. Controlled burns are a public benefit due to both the destruction of weeds and by reducing fire hazards. Controlled burns are a reasonable user of rural land and are not themselves a nuisance: [48].

Hargrave v Goldman (1963) 110 CLR 40; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 250, applied;

Northwestern Utilities v London Guarantee & Accident Co [1936] AC 108; Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74, considered.

1. The scope of nuisance did not arise, given the pleading of want of reasonable care: [45].

Issue (2) – whether the respondents were negligent in allowing the fire to escape

1. It was not proved that the respondents knew, or ought to have known, that the roots of the hollow snow gum were alight two weeks after the controlled burn. The steps they should have taken were to monitor the activities of the RFS. Unless the RFS failed to take reasonable precautions, there was no evidence that breach of that duty was causally related to the damage suffered: [54].

Issue (3) – whether the RFS was negligent

1. The risk of fire in a hollow tree and its roots was well-known. The RFS officer in charge of the burn checked the tree. No witness criticised the course taken by him as falling short of the reasonable precautions required. The fact that bulldozing the tree would have led to the discovery, and extinguishment, of the fire in its roots did not mean that that step should have been taken in the absence of evidence of a concealed fire revealed by monitoring. The claim of negligence on the part of the RFS should have been rejected: [64]; [72]-[73].

Issue (4) – whether the respondents were vicariously liable for conduct of the RFS

1. As the respondents owed a non-delegable duty of care to the appellant, the respondents would have been liable for the full amount of the damages, if there had been negligence on the part of the RFS; no apportionment would have been appropriate: [101]-[102].

Civil Liability Act 2002 (NSW) ss 5Q, 39; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6, followed.

Issue (5) – whether the appellant was contributorily negligent

1. As the evidence did not establish any lack of reasonable care on the part of the appellant, no finding of contributory negligence should have been made: [110].

Issue (6) – whether liability should be apportioned between the respondents and the RFS

(7) An “apportionable claim” for damage to property is one “arising from a failure to take reasonable care”. A “concurrent wrongdoer” is someone who is, or was, liable in respect of the loss suffered by the plaintiff. The RFS being protected from liability by statute, even had its members been negligent, it would not be, and would never have been, liable with respect to that damage: [96]-[97].

Civil Liability Act 2002 (NSW), s 34(1); Rural Fires Act 1997 (NSW), s 128(1); Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10; Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367; Trajkovski v Simpson [2019] NSWCA 52, followed; St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666; [2009] VSCA 245; Mitchell Morgan Nominees Pty Ltd v Vella (2011) NSWCA 390; 16 BPR 30,189, considered.

Issue (7) – whether damages for rebuilding the appellant’s house were correctly assessed

1. Despite deficiencies in the evidence, the findings of the experts were not guesswork and the trial judge was entitled to rely on their agreed opinions: [116].

2. The figure determined by the experts had been indexed to March 2020. It would have been double-counting to allow for inflation by adding an additional amount for interest: [117]; [121].

Judgment

1. BASTEN JA: In 2012, Brian Herbert Woodhouse was the owner of a property known as “Myack” on the outskirts of Berridale in southern New South Wales. On 5 September 2012 a fire swept through the property, extensively damaging the homestead and surrounding buildings. In August 2018 Mr Woodhouse commenced proceedings in the Supreme Court against Barry Thomas Fitzgerald and Virginia Eileen McCoy, who had recently purchased an adjoining property “Doran”. Mr Woodhouse sought damages on the basis that the fire which had damaged his land and buildings had escaped from “Doran”.

2. In the winter of 2012, Mr Fitzgerald and Ms McCoy (“the owners”) had arranged for the local Rural Fire Service (RFS) to conduct a controlled burn to destroy weeds on “Doran”. The burn was undertaken over two days, being 20 and 28 August 2012. The probable origin of the fire which occurred on 5 September was undetected burning in the roots of an old snow gum on part of the owners’ land which had been burnt on 20 August, and which had been reignited by a strong, dry north-westerly wind which built up on the morning of 5 September.

3. The proceedings in the Common Law Division were conducted in March and April 2020, shortly after hearings began to be conducted remotely; the transcript reveals that the conduct of the trial was punctuated by technical problems which must have taxed the patience of all involved. Nevertheless, some of the difficulties noted below found their origins in the pre-trial stages.

4. The trial judge, Schmidt AJ, found that the fire on 5 September did indeed commence on “Doran”, when the old snow gum caught alight and a burning branch was snapped off in the wind and cartwheeled some 50 metres over a fence and into dry grass on “Myack”. She found that the escape of the fire would not have occurred but for the negligence of members of the RFS. She further accepted that the owners were liable for that negligence, although the members of the RFS were protected by a statutory immunity. The liability of the owners was upheld on the dual bases of the torts of negligence and (private) nuisance.

5. The trial judge assessed the damage to property owned by Mr Woodhouse in an amount of some $1.3 million. However, the judge also concluded that responsibility for the loss was to be apportioned between the owners and the RFS, and was to be reduced by 10% on account of “contributory negligence” of Mr Woodhouse. The proportionate share borne by the owners was fixed at 35%. As a result Mr Woodhouse obtained a judgment in the amount of $408,881. The judge added a small amount of interest, $1,910, for the period from the commencement of the trial until the date of judgment. [1]

   1. Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450 (“Woodhouse”).

6. In this Court, Mr Woodhouse challenged the apportionment of liability and the reduction of damages on account of contributory negligence. He also challenged the failure to award pre-trial interest.

7. The owners responded by filing a notice of cross-appeal, challenging the finding that the duty of care they owed to Mr Woodhouse was “non-delegable”, that both they and the RFS breached their respective duties of care and, in addition, the judge’s assessment of the loss suffered by Mr Woodhouse.

8. Shortly before the hearing of the appeal, the owners realised that the notice of cross-appeal did not expressly challenge the finding based on nuisance, which had been based on the finding of negligence: the hearing commenced with an application to rely on an amended notice challenging the finding in nuisance. In response, Mr Woodhouse opposed the grant of leave, but, defensively, sought leave to rely on a notice of contention seeking to uphold the finding in nuisance on the separate ground that no finding of fault on the part of the owners or the RFS was required. Both applications should be granted, for reasons explained below.

9. The issues raised on the appeal include questions of some complexity as to the operation of the apportionment provisions in Pt 4 of the Civil Liability Act 2002 (NSW), and as to the effect of the statutory immunity from liability in favour of the Rural Fire Service and its officers for actions and omissions carried out in good faith in exercise of their duties under the Rural Fires Act 1997 (NSW). In my view, the primary judge erred in apportioning liability: to the extent that there was negligence on the part of the members of the RFS, the respondents were themselves fully liable for the loss caused to Mr Woodhouse. However, the owners’ challenge to the findings of liability should also be upheld. It follows that the cross-appeal should be allowed and the appeal dismissed.

Circumstances giving rise to fire

10. The owners purchased “Doran”, a 220 hectare property which had been used for sheep farming, in October 2011. There was a “manager’s cottage” on the property, which was uninhabitable, and a number of sheds. Only the shearing shed was connected to the electricity supply. At the time of the purchase, the first respondent, Mr Fitzgerald, was a commercial pilot working out of Brisbane. The second respondent, Ms McCoy, was a registered nurse working in Berridale.

11. At the time of purchase, “Doran” was the subject of two notices issued by the Snowy River Shire Council under the Noxious Weeds Act 1993 (NSW). The respondents employed a local contractor to spray areas of the property, but on taking further advice decided, in about June 2012, to undertake a controlled burn of that part of the property east of Rockwell Road. In July 2012 they had a conversation with Barry Aitchison, the operations officer for the Rural Fire Service Monaro Team, as to the feasibility of carrying out a controlled burn as part of a weed reduction program. Mr Aitchison agreed that the RFS undertook such activities and put them in touch with Stephen Knowles, who was the Captain of the Berridale RFS. In August 2012 Lex Suthern was both a member of the Berridale RFS (being the Deputy Captain) and carried on an earthmoving and excavation business. Mr Fitzgerald employed him to bulldoze control lines around the part of “Doran” which was to be the subject of the controlled burn. This required bulldozing along the boundary fences, removing vegetation to ground level for one blade width, and then dividing the area into manageable blocks. Mr Suthern stated in an affidavit prepared in February 2019:

“7   When I was putting the control lines in, I noticed the two hollow trees that were close to the eastern boundary of ‘Doran’ where the property joins the property ‘Myack’. They were the only two trees in that paddock. I recall that they were about 40 for 50 metres from the boundary so inside the control lines that I was putting along the boundary fence. I did not consider putting control lines around the two trees because they had rocks around them and it would have been difficult.”

12. The RFS intended to carry out the burn over two days. The northern part, which included the rocky knoll with one of the two old trees, was undertaken on 20 August 2012. In addition to Mr Suthern with his bulldozer, the activity involved a crew of seven RFS volunteers, led by Mr Knowles, and three tankers.

13. There was heavy rain overnight following the initial burn. When the volunteers returned on 21 August, the ground was wet and boggy. One of the RFS vehicles became bogged and, when Mr Suthern tried to pull it out with the dozer, that vehicle also became bogged. [2] Windy conditions developed during the day and the fire reignited in an area on the western boundary containing an old white eucalypt on a knoll and some old dead logs. Mr Suthern said that Mr Knowles and he went over to the site of the fire, where he pushed the tree over with the dozer, exposing its roots. The fire was extinguished and dirt bulldozed over the logs and roots.

    2. Affidavit, L W Suthern, 11 February 2019, par 9.

14. Mr Suthern lived on Rockwell Road, which formed the western boundary of the burn area. He said that he drove along the road each day on his way to and from work and made observations of the burn area from the western side. (“Myack” was on the eastern boundary of “Doran”.)

15. In addition to the activity undertaken on Tuesday, 21 August, Mr Knowles returned to the property two days later on 23 August. His diary note for the afternoon stated: “Patrol ‘Doran’ – 2 x hots doused all edges cold”.

16. Two days later again, on Saturday 25 August, Mr Knowles recorded, “Patrol ‘Doran’ – all good”. On 28 August the team returned to “Doran” to complete the burn. On 30 August, Mr Knowles recorded “rain/sleet”. The following day, Friday 31 August he was in Sydney, but noted “snow at home!” On Monday 3 September he again visited the property noting:

“Drive ‘Doran’ – looked for hotspots on nth side of Wolfram – all good; checked picker’s fence line – all good.”

17. In his oral evidence, Mr Knowles identified the last record as referring to an area known as Wolfram Hill, which had not been the subject of either burn but had been an area on which the fire had encroached, where there was fallen timber. The reference to “picker’s fence line” was to the eastern boundary of “Doran”, largely along the southern part which had been part of the second burn on 28 August.

18. Mr Knowles’ evidence in chief was in the form a statement to police dated 12 July 2013, which contained the following passage:

“13.   During the course of the mop up operation, Barry AITCHISON and possibly Peter BOTTOM investigated a potential area of origin. About 4:30pm Barry told me he thought he had found a point of origin and wanted me to have a look. I got into his vehicle and he took me across the paddock and along the Western boundary fence of Myack. Barry had cordoned off a branch that was laying on the ground in the paddock. The branch was about 1.5 metres long and had several branches stemming [from] the main branch. It appeared this branch had been snapped from a tree approximately 40 metres away in the 'Doran' property. The tree that the branch had broken from was in a section of the northern paddock of Doran that had been subject to burning off. I had personally checked the tree a number of times throughout our patrol operations after the burn off of that paddock. Every check revealed the tree to be benign. On this day I checked the tree again the same as I had previously and found the bowl of the tree to be hot. There was no active flame but the surrounding soil and bowl of the tree was hot.

14.   The branch appeared to have broken off from the tree due to the wind and travelled about 15 metres before passing the containment line and getting caught up in the boundary fence. There was some foliage from the branch still caught up in the mesh of the fence. The branch has travelled at least a further 15 metres before coming to rest in the paddock with the butt end facing into the wind. I believe this branch is the ignition source of the fire.

15.   Between the time of the reduction burn on 'Doran' and the fire at 'Myack' the location of the tree was subject to two rain events and a snow event. It subsequently snowed the night of the fire about 9.30pm and brought to a holt our operations.”

19. In his oral evidence, Mr Knowles was questioned about his reference in par 13 to earlier checks on the tree which he accepted was the source of the “Myack” fire. His evidence was as follows: [3]

    3. Tcpt, 24/03/20, pp 98(35)-99(21).

“Q. You record in your statement that every check that you conducted would be of the trees being benign. The checks that you conducted both before and after the fire, did they involve touching the trunk of the tree, to feel whether it was warm?

A. Yes, that's right. Placing an ungloved hand, back of the hand into the soil at the base of the tree, and doing a visual check of the tree, feeling the tree.

…

Q. Was the purpose of putting the back of your hand in the soil at the base of the tree to determine whether the tree roots were giving off any heat?

A. Yeah, it's a common practice just to try and detect any heat that may be in around the base of the tree. Especially if the tree has a hollow in it that give ground. That's, that's how we've always done it, it's how I continue to do it today.

Q. The checks that you refer to … in paragraph 13 as revealing the tree to be benign, included a check of the soil with the back of your hand?

A. That's correct.

Q. After the fire on 5 September, on the day of it, during the course of the mop up operation, you returned to the tree and did exactly the same check of it. Correct?

A. Yeah, I was taken back there by others … to try and find a point of origin. … I undertook the normal checks that I would, and, and definitely felt hot ground.”

20. Mr Knowles lived on a property south-east of “Doran” and 2.8kms south-east of “Myack”. He described his observation of the fire on 5 September in the following passage in his statement:

“5.   On Wednesday the 5th September 2012 I had travelled into Cooma in the morning and returned home to Berridale about 11am. My home … looks over the township of Berridale and parts of the 'Doran' and 'Myack' properties. At this time the weather was warm and the wind was picking up speed. I started listening to the Rural Fire Service radio installed at my home and heard that there were fires starting up at Adaminaby and Ingebyra.

6.   From about 12:30prn I started walking around the veranda of my home with binoculars looking over the Berridale area, I continued monitoring the radio. About 1:30pm I was looking over the 'Doran' property through binoculars, I scanned from the southern end up to the northern end of the property. When I reached the northern end I observed some smoke. …

7.   I immediately rang the Berridale Fire Control centre ….

8.   I immediately left my home and started heading into Berridale. I travelled about 2.8kms from my home along Dalgety Road when I reached the bend in the road where the 'Myack' property is. I observed the fire had already travelled through the first paddock and past the house, the house didn't appear to be alight at this time but it was under attack from embers. I got on the radio and broadcast a message stating, ‘Urgent assistance required. The fire is on Myack, the fire has gone [past] the house but the house is now under direct ember attack. I need trucks ASAP’.”

21. Mr Aitchison also attended the fire on 5 September. After the fire had been contained, he worked backwards into the wind to locate the ignition point. His statement continued:

“11.   This point was on the top of a knoll, where a very mature old white gum tree was located. The base of this tree was still very hot and my observation was that a limb had come from this tree, had been blown a number of metres over an established control line and previously burnt ground. There was more leaf and limbs trapped on the fence that had also been broken off this bigger limb which had landed in unburnt ground on the property of Myack. We could also trace this limb back to the tree with the marks made on the ground and how it had cart wheeled from its point of origin, and looking to the north west from point of origin, a definite wind tunnel funnelling down the Kosciuszko Road.

12.   The tree where the limb had broken from was an old rotten white gum tree and the base of this tree was still very hot and I arranged for a tanker to put some water on it. …

13.   I later drove up along the Kosciuszko Road and observed a number of mature pine trees that had also been blown over on the Coolamatong Golf Course that same afternoon. …”

22. The weather forecast for New South Wales for Wednesday, 5 September 2012 rated the Monaro alpine area fire risk as “severe”; the area was subject to a fire weather warning and a fire ban. The forecast was as follows:

“A vigorous cold front will pass over western NSW tomorrow associated with dry and windy conditions for much of the state. Rainfall is expected in the south of the state, mainly over the ranges where thunderstorms are possible. Winds north to northwesterly, tending westerly behind the front.”

The maximum temperature on 5 September reached 19 degrees, which was an unusually high temperature for winter. Gale force winds at 100kph were recorded at nearby Cooma airport.

Leave to amend

23. The owners first expressly challenged the finding of liability in nuisance in their written submissions filed on 21 September 2020 in support of their cross-appeal. In responding, Mr Woodhouse noted the absence of any ground in the notice of cross-appeal asserting error in the finding of nuisance, but relied upon submissions he had made in his appeal on the issue of nuisance.

24. The thrust of Mr Woodhouse’s submissions on his appeal were to acknowledge that the trial judge’s finding of nuisance was based on negligence, but to contend that that was not necessary. He argued: [4]

“63   … The Civil Liability Act 2002 is not engaged where the nuisance is comprised in intentional conduct (namely, lighting the fire) even if the failure to [properly] extinguish the fire was because of negligence. The spread of the fire from Doran to Myack was the foreseeable consequence of lighting the fire and failing to properly extinguish it.

…

65   If the nuisance was the failure to prevent the spread of the fire, there was fault on the part of the Respondents. The fact there may have also been causative fault on the part of the RFS should make no difference where the basis of liability is nuisance.”

4. Appellant’s written submissions on appeal, 17 September 2020.

25. The owners were alert to the implications of this submission, namely that liability in nuisance did not require fault on their part or on the part of the RFS. They noted the manner in which nuisance had been pleaded (a fact also recorded by the trial judge [5] ) in the following terms:

“The spread of fire from Doran to Myack constituted an act of nuisance which could have been avoided by the taking of reasonable care by the plaintiffs.”

As the owners pointed out, [6] the last word (plaintiffs) should be read as defendants. The owners also noted that objection had been taken to an attempt by Mr Woodhouse in oral argument to reformulate his case in nuisance without reference to lack of reasonable care. [7] Although that course had been opposed, the trial judge did not expressly resolve the issue, but relied upon the finding of lack of reasonable care in upholding the claim in nuisance.

5. Woodhouse at [363].

6. Respondents’ written submissions on appeal, 19 October 2020, par 78.

7. Respondents’ written submissions on appeal, par 77.

26. Wishing to maintain the alternative claim, Mr Woodhouse prepared a notice of contention seeking to support the finding of nuisance without relying on lack of reasonable care:

“1   The Respondents authorised and instigated the lighting of the fire on Doran by the Rural Fire Service on 20 August 2012.

2   The fire was not extinguished and escaped from Doran to the appellant’s property (Myack) whereby the appellant’s property was damaged and destroyed by the fire.

3   The respondents failed to prevent the spread of the fire from Doran to Myack.”

27. It is apparent from these materials that, at least from the time of closing submissions before the trial judge, there has been a lively dispute between the parties as to the fault element (if any) in the tort of private nuisance in the case of fire. The issue did not need to be resolved at the trial because Mr Woodhouse’s pleading based the claim in nuisance on failure to take reasonable care to extinguish the fire, which the judge accepted was established on the evidence. If that position had been maintained on the appeal, the liability of the owners turned on a failure to exercise reasonable care, with no clear distinction between liability in negligence and liability in nuisance. The amendment to the notice of cross-appeal would, in that circumstance, have been largely a formality. The real issue was whether Mr Woodhouse should be allowed to contend for a finding in nuisance on the basis that he did not need to establish lack of reasonable care on the part of either the owners or the RFS. Success on that basis may have raised a further issue as to whether the owners could escape liability by establishing the negative, namely lack of fault on their part and on the part of the RFS.

28. In circumstances which will appear more fully from a discussion of the legal issues, the positions, with the possible exception of the change in burden of proof, were addressed in the course of both written submissions and oral argument. The owners did not contend that if the fault element in nuisance were to be rejected they would be prejudiced by not having called evidence which may have been available to them at the trial.

29. In these circumstances leave should be granted to the owners to file and rely upon their amended notice of cross-appeal. Further, because it would be unsatisfactory if Mr Woodhouse were to fail on the basis of an erroneous assumption as to the law, he should have leave to rely upon his notice of contention.

Negligence and nuisance – legal principles

30. Negligence requires proof by a plaintiff that a person by whom a duty of care is owed to the plaintiff has failed to take reasonable care in some particular respect. The trial judge found that both the officers of the RFS and the owners were personally negligent. The owners challenge that finding. However, the judge also found they were liable in nuisance. There are passages in the judge’s reasons which suggest that the standard of fault required to establish nuisance is lower than that with respect to negligence, although, having found negligence, that finding was relied upon to establish nuisance. Ground 3 in the notice of appeal challenged the finding that the owners’ liability in nuisance was subject to the provisions of the Civil Liability Act, and, in particular, apportionment of loss under Pt 4. An “apportionable claim” under s 34(1) of the Civil Liability Act must, relevantly, be a claim for damage to property “arising from a failure to take reasonable care”: Mr Woodhouse submitted that nuisance did not turn on that criterion. Rather it was made good by satisfaction of the matters set out at [26] above.

31. The scope, elements and defences to a tort of private nuisance have long been seen as uncertain and remain so. [8] Nuisance, where it involves interference with the owner’s enjoyment of land, might be relied upon to fill a gap between acts which fell short of dispossessing an owner, and intentional acts involving trespass to land. [9] The “relevant control mechanism”, as identified by Lord Goff of Chieveley in Cambridge Water Co v Eastern Counties Leather Plc,[10] was the principle of reasonable user, namely acceptance of those acts necessary for the common and ordinary use and occupation of the particular land. As noted by Windeyer J in Hargrave v Goldman: [11]

“Generally speaking the term ‘nuisance’ denotes a state of affairs that is either continuous or recurrent. It is, therefore, somewhat misleading to use the word ‘nuisance’ of a situation from which harm may occur if care be not exercised, but from which no actual harm is currently occurring. … And a fire that is presently harmless is not a nuisance, although it may be fraught with danger and arouse apprehensions of harm.”

8. Brand v Hammersmith and City Railway Co (1867) LR 2QB 223 at 247, quoted by Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 at 60; [1963] HCA 56.

9. C Sappideen and P Vines (eds) Fleming’s the Law of Torts (10th ed, Lawbook Co, 2011) at 497.

10. [1994] 2 AC 264 at 300E.

11. Hargrave at 59.

32. In seeking to establish the distinction between negligence and nuisance, while noting that “[n]egligence is not a necessary element in nuisance,” Windeyer J concluded: [12]

“The distinction between nuisance and negligence as separate torts may be of little, if any, importance for the ultimate decision of this case. … At the present day, and for present purposes, it may, I think, be stated as follows.

In nuisance liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.

In negligence liability is founded upon the negligent conduct of one person causing, to any degree, foreseeable harm to the person or property of another person (not necessarily an owner or occupier of land) to whom a duty of care was owed.”

12. Hargrave at 62.

33. While nuisance was understood to constitute a form of strict liability, its operation was limited by the exclusion of reasonable user. The principle in Rylands v Fletcher [13] was established to fill a further gap in circumstances where a person “who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes”. The principle required that the person “must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” [14] Rylands v Fletcher involved flooding of a mine shaft on neighbouring land as a result of the negligent construction of a reservoir on the defendant’s land.

    13. (1866) LR 1 Ex 265.

    14. Rylands at 279-280 (Blackburn J).

34. While fire was a dangerous element which fell squarely within the principle in Rylands v Fletcher, it had been subject to older rules imposing strict liability. In Hargrave v Goldman, Windeyer J said that the older general law rules “have been absorbed into the principle of Rylands v Fletcher; and that the strict liability of the common law is subject to the qualifications of and exceptions to that principle”. [15] That conclusion was accepted in Burnie Port Authority v General Jones Pty Ltd. [16]

    15. Hargrave at 58.

    16. (1994) 179 CLR 520 at 533, 534 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1994] HCA 13.

35. It is not necessary to pursue the history of Rylands v Fletcher through the case law. The High Court observed in Burnie Port Authority that Rylands v Fletcher had been decided some 17 years before Heaven v Pender,[17] which “constituted the first step in the perception of a coherent jurisprudence of common law negligence.” [18]

    17. (1883) 11 QBD 503.

    18. Burnie Port Authority at 541.

36. The joint reasons in Burnie Port Authority quoted with approval the Privy Council in Black v Christchurch Finance Co,[19] another case involving the escape of fire from the respondent’s land, the fire having been negligently lit by an independent contractor: [20]

“The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions [emphasis by High Court] to prevent the fire extending to his neighbour's property …. And if he authorizes another to act for him he is bound, not only to stipulate that such precautions [emphasis by High Court] shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences.”

19. [1894] AC 48.

20. Black at 54.

37. The adoption of the requirement to take reasonable precautions, together with the obligation to ensure that the precautions are in fact taken, form the basis of the High Court’s conclusion in Burnie Port Authority that the rule in Rylands v Fletcher should now be seen to have been “absorbed by the principles of ordinary negligence”. However, the joint reasons expressed a qualification to that conclusion, namely that “there may remain cases in which it is preferable to see a defendant’s liability in a Rylands v Fletcher situation as lying in nuisance (or even trespass) and not in negligence.” [21] Thus there remains a question as to whether the qualification with respect to nuisance is relevant in the present circumstances.

    21. Burnie Port Authority at 556.

38. The footnote to the qualification referred to two cases and an article. The first case, Northwestern Utilities v London Guarantee & Accident Co [22] involved a fire in the plaintiff’s hotel caused by a fracture in a gas main belonging to the defendant and situated below the street outside the hotel. The damage was caused by a third party constructing a stormwater drain. Liability was found, but based in negligence, and not under Rylands v Fletcher, because the damage was caused by the independent, conscious act of a third party. At the page referred to in Burnie Port Authority, the Privy Council stated, in relation to Rylands v Fletcher:

“This form of liability is in many ways analogous to a liability for nuisance, though nuisance is not only different in its historical origin but in its legal character and many of its incidents and applications. But the two causes of action often overlap, and in respect of each of these causes of action the rule of strict liability has been modified by admitting as a defence that what was being done was properly done in pursuance of statutory powers, and the mischief that has happened has not been brought about by any negligence on the part of the undertakers. … By the same reasoning the rule has been held inapplicable where the casualty is due to the act of God; or to the independent or conscious volition of a third party ….”

22. [1936] AC 108.

39. If adopted in Australia, Northwestern Utilities might support the shifting of the burden of proof from a plaintiff to a defendant. That is, it would be for the defendant to establish that reasonable care had been taken, rather than for the plaintiff to establish failure to take reasonable care. It is by no means clear that that is the law in Australia, but if it were it would not affect the outcome in this case. As will be explained below, the evidence demonstrated what steps should have been taken in protecting against the possibility of latent fire and that those steps were taken.

40. Secondly, the High Court referred to the decision of the House of Lords in Cambridge Water Co v Eastern Counties Leather Plc. [23] In the course of considering statements in Rylands v Fletcher as to the need for knowledge that the thing to be contained would be harmful if it escaped, the joint reasons in Burnie Port Authority noted: [24]

“The qualification ‘which he knows to be mischievous’ has been, in the context of private nuisance and the development of the modern law of negligence, transformed from an apparent requirement of actual knowledge into a requirement closely resembling, or perhaps even amounting to, a requirement of foreseeability of relevant damage in the event of the escape of the dangerous substance.”

Cambridge Water was relied on in support of the equivalence of the foreseeability requirement. [25] Cambridge Water involved the escape of a chemical potentially capable of polluting a water supply, but the escape of which was not and could not have been foreseen.

23. [1994] 2 AC 264.

24. Burnie Port Authority at 537.

25. [1994] 2 AC at 300-301, referring to the opinion of Lord Reid in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617 at 640.

41. Thirdly, the High Court referred to an article by Professor Newark, published in 1949, but without identifying any particular passage in the article. [26] Newark was critical of the transfer of a number of cases involving dangers on or adjacent to private property from “the realm of negligence to that of nuisance.” [27] One consequence of this step was the blurring of “the fundamental distinction between nuisance and other torts” which brought about a “misappreciation” of the decision in Rylands v Fletcher. [28] Professor Newark dealt with Rylands v Fletcher in the following terms: [29]

“What was novel in Rylands v Fletcher, or at least clearly decided for the first time, was that as between adjacent occupiers an isolated escape is actionable. Though never decisively laid down in any case there are plenty of dicta scattered through the reports to support the view that the true nuisance must have some permanence about it, and there are many types of nuisance of which this is true. … But with regard to nuisances consisting of the escape of tangible things which damage the plaintiff’s close there is no rule requiring the plaintiff to suffer one such invasion as a damnum absque injuria. His neighbour must keep the thing in at his peril.”

26. Newark, “The Boundaries of Nuisance” (1949) 65 LQR 480; referred to at fn (1) in Burnie Port Authority at 536 and fn (96) at 556. The article was cited at length by Lord Goff in Cambridge Water at 297-298.

27. Newark at 486.

28. Newark at 487.

29. Newark at 488.

42. It does not appear that the joint reasons in Burnie Port Authority were concerned with such distinctions. They stated: [30]

“Much has been written in the past about precisely where, among the old forms of action, one should locate the source or sources of the rule in Rylands v Fletcher. However, the subsequent emergence of a coherent law of negligence to dominate the territory of tortious liability for unintentional injury to the person or property of another has deprived the question of much of its practical significance. Regardless of the parental claims of nuisance or even trespass, the rule has been increasingly qualified and adjusted to reflect basic aspects of the law of ordinary negligence.”

30. Burnie Port Authority at 544-545.

43. Accordingly, it appears implausible that the unparticularised qualification that “there may remain cases in which it is preferable to see a defendant’s liability in a Rylands v Fletcher situation as lying in nuisance (or even trespass) and not in negligence” was intended to qualify the general proposition that the defendant’s fault lay in the unreasonableness of his or her conduct. The unresolved possible difference may lie in the party who bears the onus of proving that reasonable care was (or was not) taken. At least that is so with respect to the escape of fire from one property to another. The joint reasons in Burnie Port Authority commenced: [31]

“The cases in this Court establish that, under the common law of this country, any special rule relating to the liability of an occupier for fire escaping from his premises has been absorbed into, and qualified by, more general rules or principles.”

31. Burnie Port Authority at 530-531.

44. The joint reasons concluded that the common law rules with respect to the escape of fire had been “absorbed into the principle of Rylands v Fletcher”, as stated by Windeyer J in Hargrave. [32] The next stage, already noted, was the adoption of that of a failure to exercise reasonable care as the standard of fault in Rylands v Fletcher, albeit that the duty to exercise such care was non-delegable. [33] This understanding of Burnie Port Authority was adopted in Weber v Greater Hume Shire Council. [34]

    32. Burnie Port Authority at 533.

    33. Burnie Port Authority at 555.

    34. (2019) 100 NSWLR 1; [2019] NSWCA 74 at [26]-[27], [35] (in my judgment, Gleeson JA agreeing) and at [203]-[205] (Sackville AJA).

45. As noted above, even if there were some stricter form of liability available in nuisance, the issue did not strictly arise at trial, the claim in nuisance having been pleaded in the following terms:

“23   The spread of fire from Doran to Myack constituted an act of nuisance which could have been avoided by the taking of reasonable care by the plaintiffs.

Particulars

The plaintiff repeats paragraph 14.”

The particulars referred to in par 14 of the claim were particulars of negligence and breach of duty.

46. So far as the notice of appeal was concerned, the finding that the respondents were liable in nuisance was relied upon to demonstrate that Pt 4 of the Civil Liability Act was not engaged and therefore should not have resulted in an apportionment of the liability between the parties. However, as s 34(1) makes clear Pt 4 is engaged if the basis of the claim is “a failure to take reasonable care”, whether the cause of action be pleaded in contract, tort or under statute. If the nature of the obligation, breach of which gives rise to a claim in nuisance, involves taking reasonable care, as indicated above, then that criterion for the engagement of Pt 4 is satisfied. Ground 3 must be rejected.

47. Mr Woodhouse’s alternative case, raised in the notice of contention, turned on two propositions. One was that the owners were liable for escape of the fire without fault on their part. Although it was proved, with hindsight, that the roots of the hollow snow gum were alight two weeks after the controlled burn, it was not proved that the owners (or Mr Knowles) knew, or ought to have known, that that was the case. No doubt there were many foreseeable risks of escape of the fire, including a sudden high wind arising before the burn was completed. Had there been no risk, it would not have been necessary to have tankers at the property on the day of the burn. However, it is not the case that private nuisance is established as a result of any harm resulting from an emanation from a person’s land. The use of the land must be out of the ordinary, unreasonable or otherwise inappropriate. That was not this case.

48. Although the primary purpose of the burn was the destruction of weeds (a public benefit, in compliance with the notices given by the Council), it had an additional public benefit, as Ms McCoy noted in her evidence, by reducing the fire hazard created by the high grass. Such burns are common in eastern Australia in winter months; they constitute a reasonable user of the land, and are not in themselves a nuisance. They are regulated by the Rural Fires Act. Mr Woodhouse ran no case to the contrary: rather, he assumed that the lighting of any fire created a nuisance where there was an escape, for which the owners were strictly liable. That was not consistent with the general law principles as to the elements of private nuisance referred to above.

49. The second proposition upon which Mr Woodhouse relied was that the owners were liable for the actions of the members of the RFS, although they in turn had an immunity from liability. This proposition was not explored in argument, and need not be determined. However, the assumption that a non-delegable duty imposed on owners extends to responsibility for the acts of those agents who enjoy statutory powers to undertake the work on private land without themselves incurring liability should not be assumed without further consideration. The issue requires attention to the combined effect of s 10 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (requiring that in determining whether a person is vicariously liable “in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded”), and s 5Q of the Civil Liability Act (equating the liability for breach of a non-delegable duty with vicarious liability). Of course, on Mr Woodhouse’s alternative case in nuisance involving strict liability, s 5Q is not engaged.

50. So far as the cross-appeal is concerned, the complaint in ground 1 that the primary judge found the duty of care owed by the plaintiffs was non-delegable must also be rejected. Burnie Port Authority retained the principle that the owner of land has a “non-delegable duty” to prevent the escape of fire resulting from the activities of an independent contractor. (The parties assumed that the members of the RFS engaged to carry out functions under the Rural Fires Act were properly characterised as independent contractors for this purpose.)

Was there a failure to exercise reasonable care?

51. The primary factual issues at the trial were whether the RFS should have taken precautions which they did not take, and whether the owners should have taken precautions themselves. Because the trial judge found that Pt 4 of the Civil Liability Act was engaged, it was necessary to apportion culpability between the RFS and the owners. If Pt 4 were not engaged, that allocation of responsibility becomes largely irrelevant, unless it could be said that precautions which might have been taken were not available to the RFS because of lack of resources and should have been obtained by the owners. There was also a temporal issue as to when (if at all) control of “Doran” was handed back to the owners after the controlled burn. However, it is not necessary to deal with those issues in order to determine this appeal.

52. In any event, the judge identified the steps which should have been taken by the owners in the following terms:

“[329]   … They included firstly, ascertaining what precautions needed to be taken to deal with the ongoing risk of the fire reigniting; secondly, establishing that they were actually being taken by the RFS; and thirdly, acting themselves to ensure that they were taken, if the RFS did not, or could not do so.”

53. In dealing with apportionment, and referring to the written document of engagement of the RFS, which included an acknowledgment by the owners that they would “remain responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished”, the judge accepted that the owners “had no control or influence over how the RFS undertook the burn and its later monitoring.” [35] The judge continued:

“[357]   Nevertheless, in my view, a reasonable person in the position of Mr Fitzgerald and Ms McCoy, given the acknowledgement which they had given, would not have simply accepted the assistance of the RFS and its volunteers at no cost, in the expectation that they would undertake all necessary post burn monitoring of over 550 acres of Doran, to guard against the real risk of the fire reigniting and spreading to adjoining properties. Rather, such a person would have taken available steps to understand the ongoing risk of reignition which continued after the burn; what precautions were to be taken by the RFS to guard against them; to ascertain that they were being taken; and if they weren’t, to themselves take precautions to deal with the ongoing risks.”

35. Woodhouse at [356].

54. If it were necessary to establish personal liability on the part of the owners, two issues might arise from this passage. First, given that members of the RFS were both experienced and trained in conducting such operations and had the resources to carry them out safely, there might be a question as to whether the owners were reasonably obliged to seek and obtain advice from any other source. That was not in terms pleaded, nor was there any finding to that effect. Secondly, there may have been an issue as to what steps the owners should have taken had the RFS advised that they could not adequately monitor the site after the burn was completed and apparently extinguished. There was, however, no allegation that such advice had been given. Accordingly a failure to obtain advice would, it appears, have had no causal relationship with the damage incurred by Mr Woodhouse.

55. Whether reasonable steps were taken to protect Mr Woodhouse and his property from a possible escape of the fire depended on the steps in fact taken by the RFS. The critical step which the judge was satisfied should have been taken but was not, was to “knock over” the old hollow eucalypt, so as to expose its roots and allow the fire to be extinguished and to bury what remained. The judge’s conclusions were as follows:

“[299]   For the following reasons, I am satisfied that reasonable precautions which were available and ought to have been taken included:

(1)   dowsing the tree with water mixed with fire retardant;

(2)   when the tree was identified as posing an ongoing risk, knocking it over, exposing the roots, dowsing and reburying them;

(3)   inspecting the tree on the morning of 5 September, when high fire risks prevailing that day became known; and

(4)   Mr Fitzgerald and Ms McCoy making enquiries to ascertain what ongoing fire risks had been identified; what precautions were being taken to deal with those risks; that they were being taken by the RFS and if not, to take those precautions themselves.”

56. Item (4) has been dealt with: it refers to the responsibility of the owners.

57. Item (3) assumed that something may have been achieved by inspecting the tree before the fire took hold when the change in weather conditions was forecast. Assuming that the fire in the roots of the old tree had been dormant until the strong winds arose, it is not entirely clear at what precise time an inspection on the morning of 5 September would have identified the immediate danger.

58. The evidential basis for finding (3) appears from the following passages:

“[317]   Mr Aitchison also said that any suspect trees left standing should be kept under ongoing inspection, ‘until certain that no risk exists’ and until that certainty was achieved, they should be monitored in high fire risk weather characterised by strong warm winds and low humidity, to ensure that any reignition could be considered, before it spread. Because this could be difficult when there were a large number of such trees over a large area, surveillance could be undertaken by aircraft or from fire towers, when ground monitoring was not possible.

[318]   While the latter was not necessary in this case, on that evidence, another reasonable precaution which should have been taken on 5 September was to inspect the hollow tree left standing with only one other old tree on the ridge near the border of Myack, where it was exposed to the unseasonal warm, high winds which prevailed that day.

…

[324]   In his report Professor Adams explained that it was physically impossible to keep monitoring indefinitely, every individual tree on a property, but ongoing monitoring was the least costly and most important action for landowners. This also confirms that a reasonable precaution which should have been taken was to inspect the tree again on 5 September.

…

[327]   That there had been no handover also supports the conclusion that another reasonable precaution which should have been taken was to inspect the tree on the morning of 5 September, when the unusual weather conditions heightened the risk that it could reignite. That was because no fire break had been built around it to protect it from igniting during the burn; it had not been knocked over and extinguished afterwards; fire in the roots of such trees were known to be difficult to detect; they were known to be able to smoulder undetected, for weeks or months later; and the tree had not been inspected since August.

[328]   Observing the countryside in the direction of Myack and Doran with binoculars from Mr Knowles’ veranda in the circumstances prevailing on that day, in accordance with the practice he described, of locals ‘watching over their own patch’, fell far short of what reasonable precautions then required, to prevent the obvious risk of that tree reigniting in those extreme weather conditions, from materialising and damaging Myack.”

59. So far as the first passage (reliant on the evidence of Mr Aitchison) is concerned, the statement taken from his affidavit of 7 February 2019 was a general account of the risks of reignition which can arise with respect to dead and hollow trees which have been in the path of a fire. It was undoubtedly true that removal of the tree after the burn was a step which could have been taken: the question for the judge in addressing (3) was whether the failure to monitor the tree’s condition at some point on the morning of 5 September demonstrated a lack of reasonable care.

60. Mr Aitchison was called by Mr Woodhouse and cross-examined by senior counsel for the owners. He was taken to evidence that there had been discussion and meetings with RFS members and the members of the Berridale community after the “Myack” fire at which no criticism had been directed to the RFS for its conduct of the burn on “Doran”. Mr Aitchison confirmed that he himself had no criticism of the way in which the burn had been conducted and subsequently the ground monitored.

61. The second passage relied upon by the judge was based on the evidence of Professor Mark Adams, an expert called by Mr Woodhouse. Professor Adams’ report was not critical of the RFS; rather it expressly stated that “the RFS team took reasonable steps to ensure the hazard reduction burn was complete and that any burning material was extinguished. The RFS team conducted numerous post-burn inspections and believed the hollow tree was ‘benign’ (their word).” He affirmed the need for landowners to continue to monitor logs and hollow trees in areas which had been burned. He stated:

“Had the owners of ‘Doran’ been present on the 5th September and had they been monitoring the hollow tree in the previous two weeks, it is possible that the reignition may have been noted earlier and the appropriate steps taken to prevent fire spread.”

62. Clearly this last statement was speculative: the RFS captain in charge of the burn, Mr Knowles, had in fact conducted inspections of the tree for signs of internal burning on two occasions prior to 5 September. It is difficult to know how an expert invited to comment on the basis of materials made available some six years after the event would have been in a position to say any more than he did. He did not have the benefit of Mr Knowles’ oral testimony as to the scope of his monitoring (referred to below) nor was he asked to comment on it. Further, neither the joint report of Professor Adams and Dr Woods (the latter briefed on behalf of the owners), nor the joint evidence they gave, addressed the question of possible precautions any further.

63. The final passage in the reasons referred to the weather conditions heightening “the risk that [the old snow gum] could reignite” and “the obvious risk of that tree reigniting in those extreme weather conditions”. This reasoning rested on the proposition that it was known, or ought to have been known, that there was fire in the roots of the tree, or at least that there was a significant risk that there was such a fire. The basis for such an assumption was missing. There was no evidence as to the state of the particular tree after the burn, or whether it had been partly burned, or affected by embers.

64. Further, no witness criticised the course taken by Mr Knowles on that morning as falling “far short of what reasonable precautions then required”, or as falling short in any lesser degree.

65. Mr Knowles was called by Mr Woodhouse. Mr Knowles, like other members of the RFS team who had worked on the “Doran” property, was a volunteer. On the morning of 5 September he had been in Cooma and had returned home at about 11am. He was aware of the weather forecast for that day and, with the wind picking up he turned on the RFS radio at his home and heard reports of fires starting at Adaminaby and Ingebyra. He gave evidence in cross-examination to the following effect: [36]

    36. Tcpt, 2403/20, p 87(19).

“Q. In the morning of 5 September you were at home, that right?

A. I'd been into Cooma, the nearby town, [but I'd] returned home.

Q. Were you on-call that day for the RFS? Is that such a thing, being on-call?

A. No, we don't have an on-call roster in our brigade. It just happened that I was in that area on that particular day, but being the captain I'm always - always, basically, on-call. I'm the first point of call for all incidents.

Q. And on this particular day, 5 September, you were vigilant about the prospect of fires because it was a bad fire day, is that right?

A. Well the weather was extraordinary for winter. It was very, very warm. It being mid-winter it should be extremely cold, and it was very warm, and I'd heard a previous incident on the fire radio about fires in two other areas.

Q. So, is this the case? You were at home listening to the RFS radio and monitoring to the north of your house with binoculars from your veranda?

A. Well, looking out to the west – [n]orwest, yeah, across all that country that I can see from my place.

Q. And … you were doing that because you were concerned that it was a particularly adverse fire condition - that the fire conditions were adverse that (not transcribable)?

A. In essence, yeah. It's just something that I do and have always done. We don't have fire towers up and running in wintertime, so on those days when conditions are conducive to ..(not transcribable).. everybody tends to watch over their own patch, just by way of being pre-emptive (not transcribable).

Q. Doran and Myack were part of an area that you regard as part of your patch; is that right?

A. That's correct. They're - they fall under view from home, so it's an area that I watch. There's a great deal of country that I can see from home that I watch over.”

66. Mr Knowles’ cross-examination concluded with the following exchange:

“Q. Mr Knowles, you were there on 3 September conducting patrols for hotspots because you still regarded the property as within your control at that time; correct?

A. That's correct. I will continue to conduct patrols with brigade members to, but if I ..(not transcribable).. with the state of the burn site.

Q. The short point I suppose, Mr Knowles, you didn't indeed see anything when you were at the property conducting patrols that caused you a concern for the fire to the type that flared up on 5 September (not transcribable)?

A. No, most definitely not.”

67. The nature of the risk where a controlled burn had passed fallen trees or logs and even standing hollow trees was well known to, and described by, a number of witnesses who were involved with the RFS or had specific expertise in relation to fire. The complaint by the owners was that (i) no witness criticised the steps taken by the RFS in their post-burn monitoring activities; (ii) although the judge accepted that the hollow snow gum on the knoll was the source of the fire on 5 September, no witness was critical of Mr Knowles’ conduct in checking the tree on prior occasions and not being aware that there was fire continuing to smoulder somewhere underground, although it was generating no heat which could be felt at ground level and, presumably, no smoke. Further, the expert called on behalf of Mr Woodhouse (Professor Adams) was clear in his opinions that no criticism could be directed at the RFS.

68. With hindsight, the cause of the fire which occurred on 5 September has been established on the balance of probabilities. Whether dousing the tree with water would have had any effect was unclear. One witness gave evidence that water would have no effect without fire retardant. No one asked Mr Knowles if it was general practice at the time to use fire retardant in such exercises. Certainly there had been rain (and even some snow) between the time of the controlled burn and the wildfire on 5 September. In the end, the question was whether it was unreasonable, and a breach of duty, for those in control of “Doran” not to have used a bulldozer to knock over the tree and expose the roots. While bulldozing a control line around the tree would have been difficult, if not impossible, because of the large rocky outcrop, Mr Suthern agreed that it would have been possible to knock the tree over. (That only required one access route for the bulldozer.)

69. The judge relied upon the fact that that step had been taken with respect to another tree as support for the conclusion that it could have been taken with respect to the hollow snow gum. However, capability was not the test. The reason why the other tree had been bulldozed was, according to Mr Knowles, because there was fire both in the tree and nearby logs, as a result of which a control line had been created with the bulldozer and at least one tanker had been called out to douse the fire. The timber had then been buried.

70. The mere fact that a particular precaution might have been taken, in the knowledge that the situation contained a contingent risk, namely an undetected fire, but without any basis for thinking that the risk in fact existed, did not entail the conclusion that the only reasonably open course was to bulldoze the tree. There was in fact no evidence to suggest that the course was the only reasonably available course. Professor Adams agreed it was a matter of judgment to be exercised, in this case, by Mr Knowles. Further, the finding of negligence assumed that Mr Knowles’ focus should properly have been on this tree to the exclusion of other parts of the property. Since the tree was surrounded by burnt grass, it was clearly thought by Mr Knowles to constitute less of a risk than Wolfram Hill, which had not been burnt, although fire had apparently impacted the Hill in parts and there was fallen timber which might have posed a risk.

71. The controlled burn was undertaken at an appropriate time of year (winter); although the temperature was unusually warm on 19 August, 19 degrees is far below a usual maximum summer temperature. The key factors were the high wind (recorded at Cooma airport at 100kph) and very low humidity (less than 20%). The other relevant factor was that winter frosts had killed grasses which then became dry in the low humidity and high wind. There was, in short, a combination of factors all of which had to materialise for the fire to have occurred. Those factors were not unforeseeable, but the level of risk was presumably low, although no calculation or assessment was provided by the experts. (The owners’ expert, Mr Woods, was not persuaded that the source of the fire had been satisfactorily identified.)

72. In my view, on the evidence available to the trial judge, a finding of lack of reasonable care was not available. While it may be accepted that the standard of care is high when dealing with fire, and it may also be accepted that there was in fact a precaution which probably would have succeeded in avoiding the subsequent outbreak had it been taken, it does not follow that the failure to take the precaution of itself demonstrated that the precaution was necessary to fulfill a duty of care. No witness supported such a conclusion; Professor Adams was of the contrary view, as was Mr Aitchison. The controlled burn was an appropriate exercise to be undertaken on “Doran” by responsible owners, carried out at the correct time of year (winter), managed by the appropriate authority (the local RFS), which did not get out of control, and was followed by appropriate monitoring of the fire ground. Accordingly the finding of liability, whether in negligence or nuisance, must be set aside.

73. If it were necessary to be affirmatively satisfied that reasonable care was taken, in my view that finding should, on the unchallenged evidence, be made.

74. The fundamental lack of evidence of want of reasonable care on the part of Mr Knowles or the RFS members generally was a curious feature of the trial. It is partly explained by the absence of any pleading of negligence on the part of the RFS, or reliance on the vicarious liability of the owners, until Mr Woodhouse, on 17 March 2020, filed a further amended statement of claim pursuant to leave granted that day. The amendments were thus made seven and a half years after the events of 5 September 2012 and only three clear working days before the trial. (The responding defence was filed two days later.) All lay evidence, including the affidavits of the owners, had been filed and served by late May 2019. The expert reports of Professor Adams were dated 17 July 2018 and 10 September 2019; the latter following Mr Woods’ report of 30 May 2019. A joint expert report was prepared on 12 February 2020. Although asked to comment on the work of the RFS, the joint report was not critical of the post-burn conduct, even before Mr Knowles had given evidence of his physical inspections and the manner in which he conducted them.

75. The absence of evidence of breach of duty might have been explicable had Mr Woodhouse’s case been pleaded in nuisance, based on an assertion of strict liability. However, that was not the nature of the pleading: as noted above, it relied entirely on a failure to take reasonable care.

Apportionment of liability in face of statutory immunity

76. Principles governing apportionment of liability are found in Pt 4 of the Civil Liability Act, which is engaged in the circumstances provided in s 34:

34   Application of Part

(1)   This Part applies to the following claims (apportionable claims):

(a)   a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury,

(b)   a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law.

(1A)   For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).

(2)   In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

(3)   For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).

…

(4)   For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.

77. Pursuant to s 34(1)(a), Pt 4 applied only to claims for economic loss or damage to property, a criterion satisfied in this case. The second criterion was that either the claim, or the loss or damage, must arise from a “failure to take reasonable care”.

78. Assuming that Pt 4 is engaged, the mechanism of apportionment is as follows:

35   Proportionate liability for apportionable claims

(1)   In any proceedings involving an apportionable claim—

(a)   the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and

(b)   the court may give judgment against the defendant for not more than that amount.

(2)   If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim—

(a)   liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and

(b)   liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

(3)   In apportioning responsibility between defendants in the proceedings—

(a)   the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and

(b)   the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

(4)   This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.

(5)   A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.

…

36   Contribution not recoverable from defendant

A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim—

(a)   cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant), and

(b)   cannot be required to indemnify any such wrongdoer.

79. On the basis that both the owners and a member of the RFS were “concurrent wrongdoers” for the purposes of Pt 4, the solidary principle of joint and several liability did not apply. Accordingly, it was necessary to apportion liability between the parties responsible for the damage. The judge found that Mr Woodhouse was contributorily negligent on the basis that he had become aware in late August of the controlled burn which had been undertaken on “Doran” a week or so earlier. Further, being a grazier he would have been aware of the risks of reignition even after the fire appeared to have been extinguished. Finally, he was aware of the severe fire conditions forecast for 5 September 2020, but did not drive to “Myack” from his home in Adaminaby until early afternoon on the day of the fire. The judge assessed his contributory negligence at 10%. She assigned the figure of 35% to the owners and the balance, namely 55%, must nominally have been attributed to some member of the RFS, but was not recoverable. In keeping with this apportionment, damages were awarded against the owners in favour of Mr Woodhouse in an amount constituting 35% of the total loss Mr Woodhouse had established on the evidence at the trial.

80. On appeal, Mr Woodhouse contended that the RFS, being statutorily immune from liability for the damage caused by the fire, could not be a “concurrent wrongdoer” within the meaning of s 34(2). (The argument and submissions treated the RFS as a legal entity, which it is not, but nothing presently turns on this.) The owners, on the other hand, submitted that all that was required was that there be two or more persons whose acts or omissions had “caused” the damage the subject of the claim.

81. The RFS is constituted under Pt 2 of the Rural Fires Act. It is a Service which comprises the Commissioner, other staff of the Service, then employed under the Public Sector Management Act 1988 (NSW) (now the Government Sector Employment Act 2013 (NSW)) and volunteer rural fire fighters. Protection from liability is provided by s 128(1) of the Rural Fires Act:

128   Protection from liability

(1)   A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

82. The phrase “protected person or body” is defined to mean, amongst other persons, the Commissioner, any person acting under the authority of the Commissioner, and any member of the Service. The Commissioner and the staff of the Service include a “fire control officer” for each rural fire district, as well as other staff, [37] and volunteer rural fire fighters. [38] Mr Woodhouse accepted that none of the persons who carried out the controlled burn could be liable for the escape of the fire. There was, therefore, no other party liable for the damage the subject of his claim, with the consequence that no apportionment was available. Accordingly, the judgment in his favour against the owners should have been for the full amount of his loss.

    37. Rural Fires Act, s 10(1).

    38. Rural Fires Act, s 8(2)(c).

83. The point of principle in issue may therefore be succinctly stated: does the definition of “concurrent wrongdoer” in s 34(2), by referring to two or more persons whose acts or omissions “caused … the damage or loss … the subject of the claim”, refer only to those persons who are or may have been liable for the damage or loss.

84. The trial judge held, after noting the immunity of the RFS from liability:

“[348] … That the RFS may not be liable to Mr Woodhouse for its negligence does not preclude it from being a ‘concurrent wrongdoer’ as defined in s 34, its acts and omissions having caused, whether independently of Mr Fitzgerald and Ms McCoy or jointly, the damage that Mr Woodhouse suffered.”

85. The judge then referred to authorities which had concluded, or at least assumed, that a concurrent wrongdoer must be a person who was or would have been liable if sued, but noting reasoning in the High Court in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[39] concluded:

“[353] Applying what was there held, as I consider it must be, given the acts and omissions of the RFS and their contribution to the damage which Mr Woodhouse suffered, it must be concluded that it was concurrent wrongdoer under s 34, even if it would not be liable to Mr Woodhouse for its wrongdoing, given the operation of either s 128 of the Rural Fires Act or s 43A of the Civil Liability Act. This is one of those unusual cases contemplated in Hunt & Hunt Lawyers, wheresomeone who the evidence established caused loss or damage is not legally liable for that wrongdoing, but is still a concurrent wrongdoer, for the purpose of s 34.”

39. (2013) 247 CLR 613; [2013] HCA 10.

86. Mr Woodhouse submitted that the trial judge had misunderstood the reasoning in the High Court, which had not overturned intermediate courts of appeal which had found liability to be an essential characteristic of concurrent wrongdoers. Accordingly, he submitted, the trial judge had been wrong to refuse to follow this aspect of the reasoning of the Victorian Court of Appeal in St George Bank Ltd v Quinerts Pty Ltd,[40] followed by a five judge bench of this Court in Mitchell Morgan Nominees Pty Ltd v Vella. [41]

    40. (2009) 25 VR 666; [2009] VSCA 245 (Nettle JA, Mandie JA and Beech AJA agreeing).

    41. (2011) NSWCA 390; 16 BPR 30,189.

87. It is possible that the trial judge was persuaded not to follow this line of authority, the decision in Mitchell Morgan having been overturned by the High Court in Hunt & Hunt. However, as was submitted in this Court, the point in issue in Hunt & Hunt was a different one. Both St George Bank and Mitchell Morgan had involved losses suffered by a credit provider as a result of default by a borrower in combination with a lack of security, resulting from a negligently excessive valuation in the case of St George Bank and a negligently prepared mortgage in the case of Mitchell Morgan. The High Court held in Hunt & Hunt that both decisions had been in error in finding that the claims against the concurrent wrongdoers were not “in respect of the same loss or damage”, so as to give rise to an apportionable claim in accordance with s 34(1A). Thus the issue in Hunt & Hunt was not whether the reference in s 34(2) to two or more persons having “caused” damage or loss engaged legal liability.

88. The passage in the majority reasons which the trial judge found persuasive read as follows:

“[47] The word ‘caused’, in a statutory provision in terms similar to s 34(2), has been read as connoting the legal liability of a wrongdoer to the plaintiff. [42] The language of liability is used in contribution legislation, [43] but not in Pt 4 of the Civil Liability Act. Nevertheless, it would usually be the case that a person who is found to have caused another's loss or damage is liable for it. References to the liability of a wrongdoer should not, however, distract attention from the essential nature of the inquiry at this point, which is one of fact.”

42. Shrimp v Landmark Operations Ltd (2007) 163 FCR 510; [2007] FCA 1468 at [62] (concerning the Trade Practices Act 1974 (Cth), s 87CB(3)).

43. For instance, the Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c).

89. There is no doubt that the point in issue in Hunt & Hunt did not turn on the meaning of the word “caused”: as the majority explained in the paragraph before that relied upon by the trial judge:

“[46] There can be no doubt, on the findings of the primary judge, that Hunt & Hunt was a wrongdoer whose actions were a cause of Mitchell Morgan's inability to recover the moneys advanced. The question under s 34(2) of the Civil Liability Act is whether the fraudsters' acts, independently of Hunt & Hunt, also caused that damage.”

90. There are three reasons for not reading the passage in Hunt & Hunt at [47] as rejecting the need for legal liability on the part of a concurrent wrongdoer. First, as explained more fully by Bell and Gageler JJ in dissent in Hunt & Hunt, the purpose of Pt 4 in the Civil Liability Act (and equivalent provisions in other jurisdictions) was to vary, with respect to property damage and claims for economic loss, the existing statutory scheme which assumed the entitlement of the plaintiff to recover in full from any wrongdoer which had caused the plaintiff’s damage, leaving it to the wrongdoers to make claims for contribution against each other. Professor JRL Davis, in a report which was the source of the reforms created by Pt 4 of the Civil Liability Act, stated: [44]

“•   Joint and several liability means that while several persons have, by their negligence, combined to cause loss to a plaintiff, anyone of them may be fully liable.

•   Proportionate liability divides the loss among the defendants according to their share of responsibility.

•   The difference between joint and several liability and proportionate liability has a major impact if one of the defendants does not have significant assets, is insolvent or untraceable; joint and several liability puts that risk, in the first instance, on the other defendants, proportionate liability includes the plaintiff as bearing some or all of that risk.”

44. Commonwealth of Australia, Inquiry into the Law of Joint and Several Liability: Report of Stage 2 (1995), p 2.

91. Bell and Gageler JJ in Hunt & Hunt, reasoning from this legal context, addressed the definition in s 34(2) in the following terms:

“[91]   To answer the description of ‘a person … whose acts or omissions (or act or omission) caused’ that damage or loss or harm, C (in common with B) must be (or have been) legally liable to A for the damage or loss that is the subject of the claim. The reference in the definition to ‘acts or omissions (or act or omission)’ is to one or more legally actionable acts or omissions. The reference in the definition to acts or omissions having ‘caused … the damage or loss that is the subject of the claim’ is not, as has correctly been held, merely to causation in fact. ‘Questions of causation are not answered in a legal vacuum’ but ‘are answered in the legal framework in which they arise’. The reference here is to causation that results, or would result, in legal liability.” [45]

45. Emphasis in original.

92. I do not read Bell and Gageler JJ as taking a different view from that taken by the majority in the passage at [47] set out by the trial judge on this issue.

93. Secondly, there are indications in the legislation which support this reading. Thus, although the ordinary meaning of the term defined should not be given too much weight, [46] the use of the word “wrongdoer”, rather than some neutral term, supports the construction of causation as involving legal liability. Further, the language of s 34(4) provides support for this conclusion. Excluding as irrelevant the characteristics of insolvency or ceasing to exist, could perhaps be treated as examples of the absence of a second person against whom a claim might, in practical terms, be brought or succeed. It would then be necessary to read that category as including persons who were never liable. The better reading is that the irrelevant characteristics assume that the concurrent wrongdoer would otherwise have been liable and have been a person against whom proceedings could have been brought. Its purpose is to reallocate the risk of non-recovery from the defendant to the plaintiff. To similar effect, s 36 precludes a right of contribution between concurrent wrongdoers. That is consistent with the contextual reading relied on by Bell and Gageler JJ.

    46. Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14.

94. Thirdly, subsequent authority supports the continuation of the construction of the legislation which requires that the concurrent wrongdoer has at some stage been legally liable, even if no longer subject to a possible suit.

95. In this Court, Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [47] held that concurrent wrongdoers “are people who are, or at least were, liable to a plaintiff (who is advancing an apportionable claim) in respect of the same loss suffered by that plaintiff”. [48] Milanex, it is true, was decided before Hunt & Hunt and followed St George Bank. However, subsequently, following the decision in Hunt & Hunt, this Court in Trajkovski v Simpson [49] reaffirmed the view that “[i]t is inherent in the notion of ‘concurrent wrongdoer’ that the plaintiff has, or had, a good – albeit not necessarily recoverable – cause of action sounding in damages against the alleged concurrent wrongdoer.”

    47. [2011] NSWCA 367.

    48. Milanex at [94] (Macfarlan JA, Campbell JA and Young JA agreeing).

    49. [2019] NSWCA 52 at [195] (Brereton JA, Basten JA and Sackville AJA agreeing).

96. In these circumstances, the trial judge was in error in determining that the High Court had ruled inconsistently with the line of authority in intermediate courts of appeal which was applied before and has been applied after Hunt & Hunt. At least by implication, intermediate courts of appeal have seen no inconsistency between the earlier authorities with respect to legal liability and the reasoning in Hunt & Hunt.

97. Thus, if the owners were liable for the damage suffered by Mr Woodhouse, that liability was not in respect of an apportionable claim in circumstances where members of the RFS were not and never had been liable with respect to that damage.

Vicarious liability

98. The owners’ duty being non-delegable, Mr Woodhouse challenged the apportionment by the trial judge on the basis that the owners were responsible for any breach by independent contractors such as members of the RFS. As Gleeson CJ noted in Leichhardt Municipal Council v Montgomery [50] a non-delegable duty “enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the negligence of an independent contractor.” Section 5Q of the Civil Liability Act provides that the extent of liability in tort for breach of a non-delegable duty “is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.”

    50. (2007) 230 CLR 22; [2007] HCA 6 at [6].

99. It is not necessary for present purposes to determine whether s 5Q varies the effect of the general law with respect to duties described as “non-delegable”. The answer to the question may depend in some circumstances on the proper construction of a statutory scheme which gives rise to such a duty.

100. The question sought to be raised by Mr Woodhouse was whether Pt 4 of the Civil Liability Act applied so as to apportion liability in circumstances where the owners were vicariously liable for the acts of members of the RFS. The answer to that question is to be found in Pt 4, which relevantly provides:

39   Application of Part

Nothing in this Part:

(a)   prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable ….

Because members of the RFS were not concurrent wrongdoers, the question need not be answered in the present case. However, the intention of s 39(a) is to render the person owing the non-delegable duty liable for the proportion attributed to the independent contractor.

101. The issue was dealt with by Professor Davis in his report of January 1995 in the following terms:

“It was pointed out by the New South Wales Law Reform Commission that to apply proportionate liability in a case where one defendant’s liability arose simply from its vicarious liability for another defendant would completely undermine the principles of vicarious liability and the policy behind them. This proposition is unarguably correct. … It is therefore recommended that any change to the present rules on joint and several liability should be expressed not to apply to instances of vicarious liability.”

While the language of s 39(a) suggests that Pt 4 does apply with respect to vicarious liability, its effect appears to be to avoid the difficulty identified both by the NSW Law Reform Commission and Professor Davis and to preserve the effect of vicarious liability.

102. Accordingly, had there been negligence, and on the basis that the owners owed a non-delegable duty of care to Mr Woodhouse which was breached by the conduct of members of the RFS, the owners would remain liable for the full amount of the damages assessed.

Contributory negligence

103. The trial judge found that Mr Woodhouse had been contributorily negligent and reduced the award of damages by 10% on that account. Mr Woodhouse challenged that finding.

104. The finding of negligence on his part rested on two propositions: first, given that he knew or ought to have been aware of the risk of reignition resulting from the controlled burn, he should have inquired of members of the RFS as to what steps had been taken and were being taken to monitor “Doran”. Secondly, given the conditions forecast for 5 September 2012, he should himself have taken steps to monitor the exposure of “Myack”.

105. As to the first matter, Mr Woodhouse submitted that, had he made inquiries of members of the RFS, he would not have been given information which would have suggested there was any particular danger arising from the controlled burn of “Doran”. That submission was correct: the evidence did not support a contrary view.

106. With respect to the second matter, Mr Woodhouse left his farm near Adaminaby between 12 and 12.30pm and drove towards Berridale, intending to visit “Myack” where his mother lived with his sister on his way to conduct business in Dalgety. He could see smoke when about 10 kilometres out of Berridale. He headed straight to “Myack”. There was no finding that he should have driven to “Myack” earlier in the day; nor was there any evidence as to whether his earlier presence would have resulted in the fire being controlled before it reached the house.

107. The finding of contributory negligence relied upon a set of contingencies, namely that:

1. it was known that there was a real risk that the controlled burn had not been fully extinguished;

2. there was a possibility of reignition due to the high winds;

3. the risk was sufficient to divert a reasonable property owner from other business he was undertaking that day;

4. a reasonable precaution in coping with that risk was to be at “Myack” before the winds were likely to cause a fire, and

5. if he had been at “Myack” he would have seen the tree on fire before the branch was blown across into his paddock and before the grass fire took off towards the homestead.

108. The trial judge relied on the fact that Mr Woodhouse was a grazier with experience of the risks created by fire as a basis for concluding that he ought to have been aware of the risk that materialised.

109. The evidence did not establish that a reasonable person in the position of Mr Woodhouse would have taken the precaution of being at “Myack” on the morning of 5 September 2012. Nor did the evidence demonstrate that, had he been there, he would probably have been able to prevent the fire engulfing the house. The house in fact appears to have burned as a result of flying embers igniting some part of the building; accordingly it would have been necessary to stop the fire before the source of the embers caught alight. The evidence did not establish when and how that happened and what was required to prevent it.

110. Considered prospectively, the evidence did not establish lack of reasonable care on the part of Mr Woodhouse. The finding of contributory negligence should not have been made.

Damages

111. So far as the amount of damages was concerned, the cross-appeal challenged the finding that the reasonable costs of rebuilding Mr Woodhouse’s house as at December 2012 was $791,938. That figure was taken from a summary document entitled “Experts[’] agreed quantum” which was tendered at the trial and admitted without objection. [51]

     51. Tcpt, 27/03/20, p 234(5).

112. On the cross-appeal, the owners submitted that the figure was merely a conclusion and no supporting reasoning was provided by the experts. That might have been a basis for objecting to its admissibility, but does not provide an adequate basis for challenging the judge’s reliance upon it, once admitted.

113. Separately, counsel for the owners took objection to a conclave report prepared by two loss assessors and a quantity surveyor, which relied upon the same figure, identified as coming from a report of 2 July 2019 prepared by Sedgwick Quantity Surveyors. That report was not in evidence, but senior counsel for the owners acknowledged at the trial that he had received reports from two of the experts, one of whom was identified as a senior quantity surveyor. [52] It has not been shown that that material would not, if required to be tendered, have provided a sufficient basis for the opinion of the experts.

     52. Tcpt, 27/03/20, p 235(30)-(35).

114. There was other material in evidence, including a report from Elders Insurance estimating the cost of replacing the homestead at $988,780, based on a quotation from a builder, Kevin Biilmann, dated 9 October 2014. There were also photographs of the homestead, which, it was conceded, did not provide a detailed floor plan although there was a description of the number of rooms.

115. The judge noted the agreement between the experts as to the cost of replacing the homestead and observed:

“[395]   The experts explained why they had not agreed other matters, but did not explain why they had agreed these figures. That could have been explored had they been required to give oral evidence as the other experts were, but they were not.”

With respect to the inadequacy of the supporting material the judge concluded:

“[397]   Part of the structure of the homestead was left standing, so that its footprint was known and there are photographs of its exterior and interior, as well as evidence about the remediation work already undertaken on the homestead and its costs, as [well] as a quote for the remaining work. There are also opinions which the experts expressed.”

116. The trial judge was conscious of, and referred to, the deficiencies in the evidence: she was nevertheless satisfied that this was not a case where guesswork was being substituted for evidence. Accepting that “the primary evidence was a sufficient basis for the experts to come to an agreed costing” she adopted that costing. [53] Although the issues are not determinative of the appeal, the challenges in the cross-appeal to the assessment of damages should be rejected.

     53. Woodhouse at [403].

Interest on damages

117. Mr Woodhouse complained that no amount had been allowed by way of interest on damages. The major element of damages was the cost of reinstating the home. The experts had agreed on a reasonable cost as at December 2012 and had applied a price index increase of some 23% to indicate a cost as at March 2020. The amount allowed by the judge by way of damages was based on the agreement of the experts as to the appropriate assessment as at 2020.

118. Mr Woodhouse submitted merely that, as a matter of practice, interest should always be awarded on damages from the date of loss to the date of judgment. However, that is not necessarily so: a calculation of loss according to current value at the time of trial is, at least in part, an equivalent exercise.

119. To the extent that the loss was assessed in monetary value as at the date of judgment, no interest was payable on account of inflation from the date of the loss. That the trial judge recognised this appears from her allowance of a small sum of interest for the period from the trial to the date of judgment. Further, to the extent that interest was payable because the appellant had been kept out of his money, it was relevant that the primary award was for the cost of rebuilding the homestead, including costs which had not been incurred by the date of the trial. The trial judge referred to the fact that some of the major costs turned on estimates by the builder, not invoices.

120. Further, the fact that no claim was made for six years after the destruction of the homestead was also relevant to the entitlement to interest. Further, if part of the sum had been paid by an insurer, evidence as to the time and amount of relevant payments might also have been taken into account. The appellant’s submissions, relying on an unquantified entitlement to interest, did not seek to address these matters.

121. To the extent that interest allows for the effect of inflation from the date the loss occurs to the date of judgment, it would be double counting to calculate the loss as at the date of trial and then add an amount by way of interest calculated by reference to that sum. That aspect of the appeal should be rejected.

Conclusions

122. The critical issue in this case was the conduct of Mr Knowles, who was in charge of the controlled burn undertaken on “Doran” on 20 August 2012. There was no suggestion that the conduct or timing of the controlled burn was inappropriate or involved any lack of reasonable care. The only issue was whether the failure to extinguish all traces of the fire had involved a lack of reasonable care.

123. Although Mr Woods (the fire expert called by the owners) was not satisfied with the investigation as to the cause of the fire on 5 September, and did not consider it had been shown to have originated in the old hollow tree near the boundary of “Doran” and “Myack”, the judge was satisfied that that was its origin. There was no challenge to that finding.

124. The evidence of both lay witnesses and experts was unanimous that fire could get into the hollows in an old tree and insinuate itself into the roots. That risk was understood by Mr Knowles and other members of the RFS.

125. The likelihood of that happening with respect to the particular tree which caused the later fire was not explored. For example, there was no evidence as to the state of the tree after the controlled burn on 20 August. Nevertheless, it was identified by Mr Knowles as a potential source of risk. His evidence that he checked the tree on two occasions, using an ungloved hand to test the bole and the soil around its base for warmth was unchallenged and was accepted by the trial judge.

126. There was also no dispute as to what should have been done if the tree had been thought to contain unextinguished fire: it should have been knocked over by a bulldozer (which was available), the fire extinguished and the remains reburied. That was not done because Mr Knowles was satisfied that the fire ground, including the tree, was cold and “benign”.

127. Accepting that a high standard of care is required of those who light fires on a property, albeit in winter and for an entirely legitimate purpose, no witness suggested that Mr Knowles’ conduct was other than reasonable and appropriate in the circumstances. The finding of the trial judge that Mr Knowles was negligent, not being supported by the evidence, must be set aside. There was no support in the evidence for a finding that the owners personally should have done more.

122. Accepting further that the owners would have been liable for any negligence on the part of members of the RFS, none being established, the finding of liability against the owners must be set aside. It follows that the cross-appeal must be allowed and the judgment in favour of Mr Woodhouse set aside.

Costs

129. The owners should have their costs of the trial. Although there were aspects of the cross-appeal on which the owners failed, on the primary issue they were successful and should have their costs of the cross-appeal.

130. There remains a question as to the costs of the appeal. Mr Woodhouse has succeeded in establishing that if there were liability in negligence, there was no basis for apportioning that liability as between members of the RFS and the owners. He has also succeeded in establishing that there should have been no reduction for contributory negligence. The challenge based on a finding in nuisance was not successful. The owners, however, resisted the appeal unsuccessfully, and would have been subject to payment of damages in full, had they been liable. They should not obtain the costs of unsuccessfully defending the main issues on the appeal, although the outcome has proved immaterial. However, because the outcome has proved immaterial, Mr Woodhouse should not obtain his costs of the appeal. The appropriate course, based on the broad assumption that the costs were to be divided equally between the appeal and the cross-appeal, is to order that Mr Woodhouse pay 50% of the owners’ costs of the proceedings in this Court.

Orders

131. The Court should make the following orders:

1. Allow the cross-appeal and set aside orders 1, 2, 3 and 4 made in the Common Law Division on 1 May 2020.

2. In place of those orders:

1. dismiss the further amended statement of claim;

2. order that the plaintiff pay the defendants’ costs of the trial.

3. Dismiss the appeal.

4. Order that Mr Woodhouse pay 50% of the respondents’/cross-appellants’ costs in this Court.

132. MEAGHER JA: I agree with Basten JA.

133. PAYNE JA: I agree with Basten JA.

**********

Endnotes

Decision last updated: 09 April 2021