Woodhouse v Fitzgerald and McCoy (No 2)

[2020] NSWSC 450

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450

Hearing dates:

23 - 27 March 2020; 14 April 2020

Date of orders:

27 April 2020

Decision date:

27 April 2020

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. Verdict for Mr Woodhouse.

 2. The parties should confer and file orders reflecting the conclusions reached within 7 days.

Catchwords:

TORTS - negligence – nature of duty of care – escape of fire – origin of fire – nature of duty owed by owners of rural property to adjoining landowner – property damaged after controlled burn conducted by Rural Fire Service on application of landowners – whether duty non-delegable –whether duty satisfied by arranging to have Rural Fire Service conduct burn – requirements of Rural Fires Act 1997-

 

TORTS - negligence - breach of duty - foreseeability - whether defendants had actual or constructive knowledge of the risk of harm - precautions which a reasonable person would have taken in the circumstances – whether adequate precautions taken

 

NUISANCE- – relationship between nuisance and negligence – whether nuisance established

 

DAMAGES – whether damages established - concurrent wrongdoers – apportionment – contributory negligence

  EVIDENCE – expert opinion evidence – whether experts possessed specialised knowledge- whether opinions based on expertise

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Coroners Act 2009 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Evidence Act 1995 (NSW)
Rural Fires Act 1997 (NSW)

Cases Cited:

Barescape Pty Ltd atf the Vs Family Trust & Ors v Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust & Anor (2011) 81 NSWLR 345; [2011] NSWSC 1002
Bird v Ford [2013] NSWSC 264
Black v Christchurch Finance Co. [1894] AC 48 [1893] UKPC 60
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Camellia Properties Pty Ltd and Ors v Wesfarmers General Insurance Ltd [2013] NSWSC 1975
Chandra & Anor v Perpetual Trustees Victoria Ltd & Ors (2007) Aust Torts reports 81-896 [2007] NSWSC 694
County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Elliot v Bickerstaff (1999) 48 NSWLR 214; [1999] NSWCA 453
Federal Commissioner of Taxation v Silverton Tramway Company Limited (1953) 88 CLR 559; [1953] HCA 79
Gales Holdings Pty Limited v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382
Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41
Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56
HG v R (1999) 197 CLR 414; [1999] HCA 2
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Imperial Chemical Industries Ltd. v Shatwell [1965] AC 656; [1964] UKHL 2
Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors (2008) 73 NSWLR 653; [2008] NSWCA 206
Jones v Dunkel (1959) 101 CLR; [1959] HCA 8
Kevan v Commissioner for Railways [1972] 2 NSWLR 710
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Leichardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40
Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383
Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572; [1997] HCA 39
P & M Quality Smallgoods Pty Limited v Leap Seng [2013] NSWCA 167
Parker v Commonwealth (1965) 112 CLR 295; [1965] HCA 12
Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34
Quijiao Liu & Anor v Yuqing Xiao & Ors [2020] NSWSC 289
Re NSW Grains Board [2002] NSWSC 913
Regina v Jung [2006] NSWSC 658
Rickard & Ors v Allianz Australia Insurance Ltd & Ors (2009) 54 MVR 214; [2009] NSWSC 1115
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC
Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] UKHL 2
Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344
Sutherland Shire Council v Heyman (1985) 175 CLR 425; [1985] HCA 41
The Finance Brokers Supervisory Board v Van Stokkum [2006] WASCA 97
Troulis and Anor v Vamvoukakis and Anor [1998] NSWCA 237
Utility services Corporation v SPI Electricity Pty Limited & Ors (2012) 35 VR 628; [2012] VSCA 158
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Weber v Greater Hume Shire Council (2019) 100 NSWLR 1, [2019] NSWCA 74
Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257

Category:

Principal judgment

Parties:

Brian Woodhouse (Plaintiff)
Barry Fitzgerald (1st Defendant)
Virginia McCoy (2nd Defendant)

Representation:

Counsel:
G Parker SC with P Tierney (Plaintiff)
R Cheney SC with H Pintos-Lopez (1st & 2nd Defendants)

Solicitors:
Blaxland Mawson & Rose (Plaintiff)
Holman Webb (1st & 2nd Defendants)

File Number(s):

2018/00249544

Judgment

1. Mr Woodhouse owns the Berridale farming property, “Myack”, where his mother and sister lived in September 2012 when it was extensively damaged by fire, including its over 100 year old homestead. In the days before the fire, snow was lying on the ground, but 5 September was a day of unseasonable high fire danger which resulted in a total fire ban. The unusual weather conditions that day included temperatures of up to 19 degrees, low humidity and winds measured nearby at Cooma, at over 100kph.

2. Mr Woodhouse claims that the fire started on the adjoining property, “Doran”. Mr Fitzgerald and Ms McCoy had bought Doran in 2011 with weed eradication notices relating to two types of noxious weeds attached to the sale contract. Mr Woodhouse’s case is that it was the result of negligence during and after a controlled burn conducted there in August 2012 by the Rural Fire Service to eradicate those weeds, that Myack was burned. He contends that an old hollow tree left standing on a ridge near the boundary of Doran was not fully extinguished and reignited on 5 September, the high winds driving the resulting grass fire into Myack.

3. Mr Woodhouse claims that as the owners of Doran, Mr Fitzgerald and Ms McCoy were responsible for the damage caused to Myack, even though they were not present either during the burn they had arranged for the RFS to conduct, or on 5 September when the RFS attended and extinguished the blaze.

4. Mr Woodhouse seeks damages in negligence and nuisance from Mr Fitzgerald and Ms McCoy. His case is that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack. That duty was breached when the fires lit during the burn were not properly extinguished and later reignited. This also constituted a nuisance for which they are also liable.

5. The claims are defended. Mr Fitzgerald and Ms McCoy deny that the duty which they owed Mr Woodhouse was non-delegable; that there was any negligence on their part; or that they have any responsibility for any negligence on the part of the RFS. They also deny the nuisance claim.

6. Mr Fitzgerald and Ms McCoy also allege contributory negligence on Mr Woodhouse’s part, which he denies.

7. Mr Woodhouse claims that as a result of the fire he suffered losses amounting to some $1,150,000. The amount of his damage was in issue, as was whether he had established that he was the owner of the contents of the homestead, where his sister and mother had lived, or the cost of rebuilding the homestead.

8. The parties’ liability experts finally agreed on the quantum of various of the damages Mr Woodhouse claimed he had suffered. Issues remained as to the ownership of the contents of the homestead and the basis upon which the agreed assessment of the cost of rebuilding the homestead rested.

9. The RFS has not been joined as a party to the proceedings.

Issues

10. At the commencement of the hearing what was in issue was identified in mfi 1 to be:

1. Whether Mr Fitzgerald and Ms McCoy owed Mr Woodhouse a non-delegable duty of care to prevent the foreseeable risk of harm arising from the spread of fire onto Myack, if the controlled burn on Doran was not fully extinguished;

2. The content and scope of that duty;

3. Whether they had breached their duty, by failing to take reasonable precautions against the risk of fire spreading to Myack;

4. Whether, if negligence was established, the evidence established that the RFS was a concurrent wrongdoer: ss 34 and 35 Civil Liability Act 2002 (NSW);

5. Whether the fire constituted an act of nuisance which could have been avoided by them taking reasonable care;

6. Whether the fire caused the claimed damage;

7. Whether the quantum of the claimed damage was established; and

8. Whether contributory negligence was established.

11. During the hearing there were also issues about:

1. Whether Mr Woodhouse should be granted leave to lead further evidence;

2. The origin of the fire;

3. The adequacy of the fire investigation;

4. The admissibility of various evidence, including reports of the liability experts’ and Professor Adams.

12. Many of the facts were not, however, in issue. In the defence closing submissions 94 factual findings were sought. Not all of those findings were in truth factual and some remained in dispute. The main areas in dispute between the parties were also there identified to be:

1. whether the duty owed by the defendants was non-delegable and, if so, the effect of section 5Q of the Civil Liability Act;

2. whether there was, in any event, any breach of the duty owed;

3. whether the defendants can be liable for any negligence on the part of the RFS;

4. causation;

5. whether the proportionate liability regime in Part IV of the Civil Liability Act applies;

6. whether the defendants are liable in nuisance; and

7. quantum.

Undisputed facts

13. It is convenient to begin with what was finally not controversial. I find that:

1. Mr Fitzgerald and Ms McCoy were not experienced in running a country property, Mr Fitzgerald having long worked as a pilot and Ms McCoy as a nurse. In September 2012 they did not live on the property, where they intended eventually to retire. They were then living in Brisbane and staying in a unit which they owned in Berridale, where Ms McCoy worked on occasions.

2. In July 2012 Mr Fitzgerald and Ms McCoy met with Mr Aitchison, who was then the RFS’ operations officer for its Monaro team and the fire control officer for the Snowy River District. What he told them was in issue but they later applied to the RFS for assistance with a “prescribed burn” in which they acknowledged, amongst other things, that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished.

3. Assistance was provided at no cost to Mr Fitzgerald and Ms McCoy by RFS volunteers. They later made a donation to the RFS.

4. The request document also contained an acknowledgment that Mr Fitzgerald and Ms McCoy were responsible for notifying adjoining landowners of the burn. Ms McCoy’s handwritten notation was that “local RFS will do”, but neither they nor the RFS notified Mr Woodhouse of the burn. He only learned of it afterwards, whereupon he spoke to Mr Aitchison.

5. Mr Fitzgerald and Ms McCoy engaged Mr Suthern, an RFS member, at Mr Aitchison’s suggestion, to put in control lines for the burn with his bulldozer.

6. A map of Doran was prepared by Mr Knowles, a neighbour and the captain of the Berridale brigade which undertook the burn. It showed the control lines Mr Suthern had installed on 14 and 15 August for the burn. Mr Fitzgerald and Ms McCoy had no input into Mr Suthern’s decisions about the control lines and did not oversee or inspect what he did.

7. The RFS had planned to conduct the burn in two stages on 20 and 21 August, but heavy rain delayed the second day until 28 August. Mr Aitchison was not present during the burn and did not see what had been done until 5 September. It was Mr Knowles who was in charge during the burn and also undertook post burn inspections.

8. In total over 550 acres of Doran was burnt by an RFS crew of 7, using 3 tankers and a bulldozer operated by Mr Suthern. The area burnt included the area close to the border of Myack later identified by the RFS as the source of the 5 September fire. That area was burnt on 20 August, but left standing on a ridge was the old hollow gum tree which the experts agreed was still smouldering on 5 September. There was no discussion between RFS members before or after the burn, about knocking over that tree, unlike others which had been knocked over.

9. But Mr Knowles identified the tree as a source of potential risk and inspected it after the burn. He patrolled the burn site on 23, 25 and 31 August and 3 September. Mr Knowles identified some smouldering logs which were put out during his patrols, but he did not inspect the tree on each of these days.

10. Mr Suthern drove daily down a public road which cut through Doran, from which he could see what had been burnt, but he did not go onto the property.

11. It was on 31 August that Mr Knowles signed an “agricultural burns checklist”, to which the containment line map was attached. Under the heading “Patrol” the list recorded that Mr Fitzgerald and Ms McCoy were absentee owners; that they were not to monitor and patrol; that the handover time was “when deemed safe”; and that the site was “black, cold & safe – 1 inch snow on whole burn site”. But there was no contact made with Mr Fitzgerald and Ms McCoy about the burn until after the 5 September fire and they were not given a copy of the checklist until later.

12. Notes on the checklist referred to brigade discussions on 13 August about the request for assistance. It was noted that the landholder was to liaise with Mr Suthern to construct fire breaks determined by the brigade captain; that wet ground was a consideration; and that the “biggest concern” was smoke into the town from the burn likely to be highly visible from Berridale and likely to result in numerous phone calls.

13. Neither Mr Fitzgerald nor Ms McCoy were present during the August burn, or on 5 September. Ms McCoy received a text message from a friend who advised her that the burn had started on 20 August and was told by Mrs Suthern on 27 August, that it would be completed the next day.

14. Mr Fitzgerald went to Doran on 2 September to spot spray weeds. He went to a high knoll from which he could overlook Doran, but he did not otherwise inspect what had been burnt or take any steps to ensure that nothing was still burning. Nor did he discuss with the RFS what had been done, or still remained to be done.

15. On 3 September Mr Knowles found no evidence of any ongoing fire risk when he drove across all the containment lines in a 4 wheel drive. He saw nothing that day which caused him to have any concern about the hollow tree on the border of Myack, which he had earlier inspected and found “benign” but he did not inspect the tree again that day. On 5 September, he did not inspect it until after the Myack fire was extinguished.

16. On 5 September no steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual conditions which prevailed that day, either by Mr Fitzgerald and Ms McCoy, or the RFS. While the RFS was undoubtedly aware of those conditions, Mr Fitzgerald and Ms McCoy were not monitoring the weather or Doran.

17. It was Mr Knowles who, from his own property, first saw smoke coming from the vicinity of Myack and Doran while keeping a lookout over the countryside from his veranda, using binoculars. He immediately raised the alarm and within minutes turned out with other RFS volunteers to fight the fire, which was already engulfing the Myack homestead when they arrived.

18. Mr Knowles there found that a grove of pine trees and bales of hay upwind from the homestead were contributing to the fire intensity and ember attack on the homestead. The fire was only extinguished after extensive damage was caused to buildings, fixtures and chattels.

19. Mr Woodhouse became aware of the high fire risk prevailing on 5 September that morning, but he did not go to Myack to take any precautions against the risk of the Doran fire reigniting. When he did go, he arrived to find that his mother, who he knew had been alone at the homestead that morning, was no longer there and the RFS was fighting the blaze.

20. After it was extinguished Mr Aitchison, other RFS members and Mr Woodhouse looked for the source of the fire. It was identified to be the hollow tree on Doran. Mr Knowles inspected the tree and found it to be still smouldering. It was then extinguished, Mr Aitchison describing how the base of the tree and the ground blew apart when water was poured onto it and large quantities of steam then coming from the ground. The site was then secured for investigation.

21. Later RFS and police investigations identified the tree as the source of the fire.

14. It is convenient next to turn to evidentiary issues.

Why leave to lead Mr Woodhouse’s further affidavit was refused

15. In the week preceding the hearing Campbell J dealt with a late application for leave to amend the statement of claim, to address the case Mr Woodhouse sought to advance in respect of the RFS and its involvement in the burn and subsequent monitoring of Doran: Woodhouse v Fitzgerald and McCoy [2020] NSWSC 257. His case then was that he had no more evidence to lead, despite the proposed amendment. Leave was granted.

16. Despite this, shortly before Mr Woodhouse was to give his evidence the following week, a further application for leave was made, on this occasion to call oral evidence from him about his claimed ownership of the contents of the homestead, which was in issue.

17. That application followed the service of the written defence submissions, filed on 20 March, where attention had been drawn to the absence of any evidence establishing Mr Woodhouse’s ownership of the contents of the homestead.

18. This belated application was opposed and refused, for the following reasons.

19. Mr Woodhouse had been ordered to serve his lay and expert evidence by December 2018. His affidavit was sworn in February 2019. No prior notice had been given of the application to lead further oral evidence from him at the 2020 hearing, nor had any advice been given of what evidence was proposed to be called, let alone any explanation for the failure to lead that evidence earlier, as had been ordered. This was despite an expert’s report having been served on the question of the amount of the losses Mr Woodhouse claimed he had suffered, to which was annexed an itemised inventory of the contents of the homestead.

20. Given the obligations imposed by the Civil Procedure Act 2005 (NSW), litigation by ambush and surprise, cannot be permitted. The relevant considerations included what s 58 required as to the dictates of justice being observed and the Court’s duty to have regard to the overriding purpose specified in s 56, namely, the just, quick and cheap resolution of the real issues in the proceedings, in the exercise of its discretions. I was satisfied that they precluded the leave sought being granted.

21. Overnight an affidavit sworn by Mr Woodhouse on 24 March was served. It, too, was objected to.

22. Leave to lead that further evidence was also refused. That was because firstly, there was no explanation for the late attempt to lead evidence on this topic, despite Mr Froeschl’s expert’s report having annexed to it the inventory of the contents of the homestead and their claimed value, to which Mr Woodhouse referred in the affidavit.

15. Secondly, there was no explanation of who had prepared that index in either Mr Woodhouse’s original affidavit, or that sworn on 24 March. That it had not been prepared by he alone could sensibly be inferred from the fact that the inventory included lists of personal belongings kept in the home which Mr Woodhouse’s mother and his sister, Ms Burling, shared in 2012. They included items such as the contents of bathroom cabinets including hair dryers and curling wands and gifts, jewellery, hats and scarves, kept in various cupboards.

16. When the liability report was later tendered it emerged from an annexed February 2019 report of LMI group with which Mr Froeschl had been instructed that an attached schedule had been prepared by Mr Woodhouse and his mother shortly after the fire, which had regard to enquiries which they had made at many unidentified retailers. But this was not referred to when the application for leave was pressed.

17. What was then apparent, however, was that the inventory itself did not establish Mr Woodhouse’s ownership of the contents of the homestead, as his disputed affidavit acknowledged.

18. By way of annexure to the disputed affidavit, Mr Woodhouse had identified personal items in the inventory which he conceded did not belong to him. Still, without explanation, he continued to claim ownership of other similar items, even his mother’s purse and the money and cards which it contained. Why that was so, was also not explained.

19. Mr Woodhouse did explain that his claimed ownership of the contents of the homestead rested on the transfer of the property to him in 1992, as part of a “farm succession plan” between him, his brother and his mother. But no mention was made of his sister, who lived at Myack with his mother, her part in the succession plan, or even of her belongings. It was certainly not conceivable that Ms Burling owned none of the contents of the homestead, her home, when it was destroyed.

20. Further, all that Mr Woodhouse revealed about the claimed agreement with his mother and brother was that the plan provided that his brother would receive all of the livestock, plant and equipment of his mother’s farming business and that he would get “Myack”. He and his mother having agreed that “Myack” included not only the homestead, but also its contents.

21. While Mr Woodhouse said nothing about his sister’s possessions, he acknowledged that as well as the contents of the homestead he claimed he had acquired in 1992, in 2012 the contents included his mother’s clothing, jewellery and personal affects, which he conceded did not belong to him. He also said that he kept unidentified items of furniture, clothing and appliances at the homestead, rather than at his own home.

22. It followed that this affidavit could not conceivably provide a basis for the conclusion that, at the time of the fire in 2012, Mr Woodhouse, whose mother was then still alive and living at Myack with his sister, owned all of the contents of the homestead, as he had claimed and originally advanced by way of the expert’s report. So much was conceded. But nor could it establish that he owned all of the other contents he still claimed ownership of.

23. In so far as Mr Woodhouse’s claimed ownership of the contents of the homestead rested on a “farm succession plan”, that can only have been an agreement, part oral and part evidenced by the transfer of title in Myack to Mr Woodhouse in 1992. But in the affidavit he simply did not attempt to give evidence about the matters which had to be addressed, if the existence of such an agreement, or its terms, were to be established.

24. Those matters were discussed by Sackar J in Quijiao Liu & Anor v Yuqing Xiao & Ors [2020] NSWSC 289 at [82]-[91]. What was required was evidence, not only of the circumstances in which the agreement had been made, but also the relevant conversations between those claimed to have been parties to the agreement, their conduct and any relevant documents: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7].

25. The items in the inventory which Mr Woodhouse still claimed to own included things like his mother’s purse and the money and cards it contained, clothing, hair dryers and curlers, gifts, jewellery, photos, cat food, liquor and the contents of a fridge, desks, dressing tables and cupboards, even handcraft materials and washing and cleaning products.

26. Many of these items could not conceivably have been the subject of the claimed 1992 agreement. No other basis of the claimed ownership of these items was revealed. Even the items Mr Woodhouse claimed he had left at the homestead were not identified.

27. Contrary to the case advanced for Mr Woodhouse, this affidavit could not be led over objection simply because it was the “best evidence” of Mr Woodhouse’s ownership of those contents of the homestead which he pressed. Given that the affidavit had not attempted to provide evidence about considerations necessary to address to establish his claims, it would have been both a waste of court time and costs for the parties, had the belated leave sought to lead this further evidence been granted.

28. In all of those circumstances, I was satisfied that justice also did not permit leave to lead Mr Woodhouse’s disputed affidavit to be granted.

The admissibility of Professor Adams’ report

37. The facts in issue that Professor Adams’ opinions were relied on to prove were that the 5 September fire was caused by the still smouldering hollow tree left standing on the border of Doran; that this tree was only extinguished by the RFS after the Myack fire had been extinguished; and that it had reignited in the unusual weather conditions which prevailed that morning.

38. Professor Adams had produced two reports. In the first he acknowledged that he had no qualifications in wildfire investigation. He there explained his qualifications as a chemist/biochemist and his experiences at the various universities where he had taught. He also described his other work, including at the University of Western Australia in Natural Resource Management and the development of a Bushfire Cooperative Research Centre (CRC), as well as his work with the Bushfire Research Advisory Group. He also referred to his involvement in the publication of a paper which had been accurate in its prediction of bushfires in 2003, 2006, 2009 and their impacts and his other extensive publications. They included the 2011 book Burning Issues: Sustainability and Management of Australia’s Southern Forests published by the CSIRO, which dealt with prescribed burning and a text on fire and forest management.

39. In his second report Professor Adams outlined his work since 2007, when he began research into the effects of fire and grazing on vegetation in the high country; his publications on that topic; his repeated visits since then to the Berridale area; his ongoing long term research trials into the effect of fire in the Snowy Mountains region; the basis of his knowledge of the fuels growing on Doran and Myack; his knowledge of the prevailing climate, based on his experiences in the area; as well as his familiarity with the drivers of bushfire and the physical science behind fires. Professor Adams also referred to his contribution to chapters in various books and other publications on bushfire and controlled fire, as well as his own experience as a landowner.

40. In the concurrent evidence Professor Adams explained that in his book he provided a history of fire; an analysis and description of fire behaviour, including fuels and climate; an analysis of climate change; the implications of fires with water and carbon; biodiversity and an analysis of hazard reduction and fuel reduction burning, designed for the well informed lay person to read. He had also there forecast the recent fire events in NSW and Victoria, but the book did not examine fire investigation.

41. There was no issue that Professor Adams had specialised knowledge, based on his training, study and experience, or that some of the opinions which he expressed in his reports were based on that specialised knowledge: s 79 Evidence Act. It was his acknowledged lack of expertise in “fire behaviour (eg rate of spread, fire intensity)”, to which he referred in his first report, on which the objection to his reports was pressed on the basis of his lack of relevant expertise. And it was also argued that his report was similar to that considered in HG v R (1999) 197 CLR 414; [1999] HCA 2 where it was concluded at [41] that the opinions of the psychologist there in question were “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.”

42. I was satisfied that these objections could not be accepted, the evidence well establishing that Professor Adams had relevant qualifications, training and experience which qualified him to give opinion evidence about the cause of the 5 September fire, given what the subsequent investigations by RFS and police investigators had established. Further, that his reports did not suffer from the deficiencies discussed in HG.

43. Professor Adams had explained that his acknowledged lack of expertise in fire investigation prevented him from expressing opinions on how long it might have taken the fire to reach the Myack homestead, once it had spread from the hollow tree, which in his opinion was the source of the fire. That opinion, however, he explained was based on his knowledge of the geography and climate of the area; his scientific study and practical experience in conducting fire research there; as well as his knowledge of wildfires generally; and of prescribed fire hazard reduction burning, more particularly.

44. I was satisfied that this explanation had to be accepted.

45. As discussed by Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209], s 79 of the Evidence Act assumes that the opinion is tendered to prove the existence of a fact. It is thus necessary to identify why the evidence is relevant, that is, why the evidence, if accepted, can rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding: s 55 Evidence Act as discussed in Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [31].

46. As there also discussed, to be admissible under s 79(1), Professor Adams opinions had to satisfy two criteria. First, that he had relevant specialised knowledge based on his training, study or experience. Secondly, his opinions had to be wholly or substantially based on that knowledge: Dasreef at [31] referred to in Nicholls at [209].

47. I was satisfied that the evidence established that Professor Adams had relevant specialised knowledge based on his training, study and experience, which enabled him to express his disputed opinions about the source of the fire. Further, that his opinions were relevant to the resolution of the issue as to its source and finally, that they were wholly or substantially based on his knowledge.

48. Professor Adams had not undertaken the week long course which taught particular internationally accepted techniques based on the 2005 Wildlife Origin & Causes Determination Handbook which Mr Woods considered was necessary in order for reliable opinions to be formed by an investigator about the source of a fire. That was a publication which Mr Woods had helped to develop and there was no issue as to his expertise in wildfire investigation, or his specialised knowledge, which enabled his opinion evidence to be received.

49. But that could not preclude an expert who had the training, study and experience Professor Adams had, from giving opinion evidence about the source of the fire. To the contrary, that training, study and experience well qualified him to give such evidence, given his resulting specialised knowledge about bushfire and its causes, particularly in the region of Australia where this fire occurred.

50. The evidence simply did not establish that the only study, training and experience which could qualify someone to give opinion evidence about the source of the fire here in question, was someone who had undertaken the course on which Mr Woods’ opinions rested and had applied the techniques taught in that course.

51. The reports explained why Professor Adams had come to his conclusions, having considered the materials with which he had been instructed. That they supported the conclusions reached in the RFS and police investigations, neither suggested nor established that he had merely parroted those conclusions, rather than himself considering the reports and other materials he had been provided with and by applying his specialised knowledge, to arrive at the opinions which he explained.

52. Accordingly, the overall challenge to Professor Adams relevant expertise had to fail.

53. There were also objections to particular parts of Professor Adams reports, which I concluded were admissible, because I was not satisfied that he had strayed outside his area of expertise and that he had satisfied the requirement to expose his reasoning process: Dasreef at 110.

54. That requirement does not preclude an expert from utilising materials produced by third parties, to assist them in applying their specialised knowledge: Regina v Jung [2006] NSWSC 658 at [57]. That was what Professor Adams did in coming to his conclusions, by making use of documents with which he was instructed, which are in evidence. They included the various statements taken in the police investigations from RFS officers; observations made by the RFS investigator during the investigation into the cause of the fire; and documents which evidenced the steps taken by the RFS before and after the controlled burn and the 5 September fire; as well as photographs taken after the fire.

55. That Professor Adams came to the same conclusion as the investigators did, on the materials to which he referred, which had also led the Coroner to conclude that it was unnecessary to conduct an inquiry into the cause of the fire, did not make the aspects of the report to which objection was taken inadmissible. Even though he had not undertaken the course which Mr Woods considered to be necessary and the investigations had not been undertaken entirely in accordance with the preferred method of investigation, the basis of the opinions Professor Adams expressed were revealed as they needed to be and so I concluded that the disputed parts of his reports were also admissible.

The admissibility of the liability reports

56. The liability experts were not required to give concurrent evidence. They had met and produced a joint report. Only Mr Froeschl’s report and the joint report of he and Mr Webb and Mr Gallagher, the defence experts, were tendered.

57. There being no question about the expertise of the defence experts, I was satisfied that both Mr Froeschl’s reports and the joint report were admissible, albeit that there were also issues as to whether they provided a reliable basis for any conclusion about the damage Mr Woodhouse claimed he had suffered, to be reached.

58. The defence objection pressed was that Mr Froeschl’s report did not establish the relevant characteristics of the homestead; the only evidence offered being the one page builder’s quote, which did not establish those characteristics. Further, the report did not establish that he had the necessary specialised knowledge, based on his training study and experience, to express an admissible opinion about construction costs.

59. I was satisfied that the objections could not be accepted.

60. Mr Froeschl’s report explained his over 30 years’ experience in claims preparation and loss adjusting in the insurance industry for insurers, as a chartered loss adjuster and as a claims preparer for a number of identified companies. He had also worked in catastrophe events, including being seconded to advise the New Zealand Earthquake Commission in the aftermath of the Christchurch earthquake. His experience included quantification of industrial and commercial property; alpine claims, including remote historic assets’, alpine lodges and accommodation.

61. Mr Froeschl was a Fellow of various insurance industry bodies and had undertaken various tertiary training in insurance and loss adjusting. His work since 1989 had included loss adjustment in increasingly senior roles, until in 2014 he became the Manager ACT & National Claims Executive for the LMI Group.

62. I was satisfied that this established that Mr Froeschl had relevant specialised knowledge, based on his training, study and experience, which enabled him to express his opinions.

63. Mr Froeschl’s 2019 report revealed that he had been instructed with an inventory of the contents of the homestead, which identified that it contained a kitchen, bathroom, lobby, hall, dining room, parlour, 3 bedrooms and a veranda, as well as a schedule of claimed losses and supporting documents. These included a quotation from a builder, Mr Biilmann, for the work of replacing the homestead, at a total cost of $988,780 and reports from the insurer, which included a September 2012 report from structural engineers, Hugill Consulting, about the homestead, which had been built of concrete blocks and bricks and what would be involved in a rebuild.

64. There was also a February 2014 report from LMI Group which explained clean-up work which had already been undertaken, including removal of asbestos from the homestead, as well as work to protect what remained of the structure from weather, to repair the foundation and walls ready for roof work. The roof had then been installed at a total cost of $190,688.50. The builder’s invoices were also attached.

65. Mr Biilmann’s October 2014 itemised quote was to restore the homestead and “return to original”. It did not, however, refer to any plans or instructions as to the work required to be undertaken, to achieve that result. But there were also photographs of the inside and outside of the homestead, before it was destroyed and of what was left standing.

66. Firstly, while undoubtedly Mr Froeschl could have been instructed with more information than he was about the characteristics of the homestead, what he was instructed with was considerably more than a one page builders’ quote. Had he considered what he was instructed with to be inadequate, he would undoubtedly have said so.

67. That it was not inadequate was supported by the fact that while the defence experts’ reports were not tendered, they were able to agree the cost of reconstruction of the homestead with Mr Froeschl. The inference that their reports would not have supported the complaint advanced by the defence, is supported by the fact that their reports were not tendered: Jones v Dunkel (1959) 101 CLR; [1959] HCA 8.

68. In the result, given all that Mr Froeschl was instructed with, I am satisfied that there was sufficient information provided to the experts, for them to come to conclusions, as they did, about the quantification of Mr Woodhouse’s damages.

The origin of the fire

69. The onus which falls on Mr Woodhouse was to establish, on the balance of probabilities, his claim that the 5 September fire spread from Doran, as the result of the failure to take reasonable precautions: s 5D(1)(a) Civil Liability Act.

70. I am satisfied that on all of the evidence, despite the RFS’ failure to adhere strictly to all aspects of best practice investigation procedures, Mr Woodhouse has established, on the balance of probabilities, that the fire began in the smouldering tree which reignited on 5 September, in the unusual weather conditions which prevailed that day.

71. Whether it was the branch Mr Aitchison identified, or burning embers blown from the tree which ignited both the end of that branch and the grass which lay downwind from the tree, or both, with the result that the fire was then driven onto Myack, simply does not have to be resolved.

69. I am satisfied that both on the pleaded case and the manner in which it was advanced and resisted at trial, there is no question that the parties joined issue over whether Mr Woodhouse had established that the source of the fire which damaged Myack was the tree which was extinguished on 5 September, whether it was the branch which Mr Aitchison had identified, or embers which had been blown from the tree from which that branch broke, that was the actual source of ignition.

70. To now confine the case in the way for which the defence contended would in my view be “unreasonable or plainly unjust”: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 referred to in Ingot Capital Investments at [428]. It would also be inconsistent with s 56 of the Civil Procedure Act, which specifies the overriding purpose of the Act to which the Court must seek to give effect, to be “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

The parties’ cases

74. The case Mr Woodhouse pressed was that the source of ignition of the fire was the hollow tree left smouldering after the August burn, which had resulted in either embers or the branch igniting the grass and spreading to Myack.

75. He relied on the evidence of Mr Aitchison, which included that the only relevant fire event in the area that he was aware of, which preceded the Myack fire, was the Doran burn; Mr Knowles’ evidence; the conclusions reached in the RFS and police investigations that the origin of the fire was the old tree; the experts’ opinions, notwithstanding Mr Woods’ reservations, supported as they were by the experiences of lay witnesses.

76. The defence relied on claimed inadequacies in the further amended statement of claim which pleaded, amongst other things, that:

1. The inside and/or root system of an old tree ("the Tree") located on Doran near the boundary between Doran and Myack was ignited during the fire: at [6].

2. The hollow and/or root system in the Tree thereafter continued to smoulder without being detected and extinguished by the RFS: at [7].

3. On 31 August 2012, the RFS ceased its operations in relation to the fire, but it had not been fully extinguished, with the result that it continued to smoulder within the hollow and/or root system in the tree: at [8].

4. On 5 September 2012, embers within the hollow in the tree ignited a branch on the tree, which then blew onto the ground, setting fire to other vegetation: at [9].

5. The fire spread onto Myack where it destroyed buildings, fixtures and chattels located there: at [10].

6. The breach of the duty of care pleaded at [14] involved amongst other things, a failure to undertake hazard abatement work in relation to the tree as an unverified source of fire by dousing its hollow with water and/or knocking it down and exposing the roots of the tree.

77. The defence case was that any relief available to Mr Woodhouse was confined to that available on his final pleadings. Further, given his pleaded case, Mr Woodhouse had to establish not only that embers in the hollow or root of the tree had ignited, but that it was a branch of the tree which had been blown onto the ground, which had set fire to other vegetation, which was the ignition source of the fire which burnt Myack: Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors (2008) 73 NSWLR 653; [2008] NSWCA 206 at [412] – [428]. That not having been established, his case had to fail.

78. I am satisfied that this may not be accepted.

The branch

79. As discussed in Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, in resolving whether or not a point was raised at trial no narrow or technical view should be taken and particulars may not be decisive, if the evidence has been allowed to travel beyond them: at [14].

80. In the defence final written submissions the branch lying over the fence on Myack was variously described as being ‘largely unburnt” and “pristine”, to advance the submission that if it had been the source of the fire, it would have been engulfed by flame. Those descriptions cannot be accepted. The end of the branch, where it broke off from the tree, was burnt and the leaves singed, as Mr Aitchison described.

81. In Professor Adams’ first report he concluded that the fire was likely to have been caused by the tree which reignited in the extreme conditions of 5 September, with the result that fire spread quickly to Myack given the generally very dry conditions. It was likely the fire was ignited by the large burning branch which can be seen in photographs in evidence.

82. Mr Woods considered that the source of the fire could not be reliably established, but that the branch was an unlikely source of the fire, given that its leaves had not been burnt. He considered that if that was the case, it would have been engulfed by fire.

83. In the joint report Professor Adams accepted that the branch may not have been the actual source of ignition, but remained of the view that the most likely source of the fire was the tree, it being the likely origin of the branch. His opinion remained that it was the tree and its surrounds, including its root system, which had continued to smoulder undetected since the controlled burn, which resulted in the fire reigniting. Mr Woods did not agree that this had been established.

84. In the concurrent evidence Professor Adams explained why he considered that it was improbable that anything other than the tree had caused the fire. Mr Woods agreed that the tree was a possible source of the fire, but was not satisfied that this had been reliably established given the investigations undertaken and the possibility that the fire had another source, which had not been excluded.

85. Mr Aitchison was of a different view, explaining in cross examination why he adhered to his opinion that the source of the grass fire which had been driven by the wind towards the trees, hay bales and buildings on Myack, was the fire which had been started by the branch. He explained that from his observations from scratch marks which could be seen on the ground made by the tumbling branch, he had come to the view that the large branch had broken off the burning tree and been blown to its resting place over the fence on Myack, where it ignited the grass.

86. Mr Aitchison was cross examined about the shrivelled state of the leaves and the burnt end of the branch, which was lying downwind from the tree on burnt grass, its burnt end facing the tree. He explained that he did not think that the fact that the leaves were not burnt up was inconsistent with the fire having been started by the branch. Given how the branch had been blown from the tree, the leaves having been singed and the branch coming to its resting place on the grass which had caught alight, the result was that the branch had not been completely burnt, because of the speed at which the fire had then been driven into Myack.

87. Mr Bottom was with Mr Aitchison that day and came to a similar conclusion, that the burning branch had broken off the tree and been blown across the fence. So did the RFS and police investigators.

88. While Mr Woodhouse is entitled to rely on this evidence, given how the case was pressed and resisted, including by the expert evidence, establishing that the fire was ignited by the burning branch, is simply not a critical matter on which Mr Woodhouse’s case must stand or fall.

How the lay evidence can be used

89. The defence case that no weight could be given to the evidence of Mr Aitchison and Mr Bottom cannot be accepted, given not only their positions in the RFS, but their involvement in fighting the Myack fire and then securing the site of the apparent source of the fire, for later investigation. Their evidence about what they did and observed on 5 September and the information which they provided in the later investigations into the fire was supported by what the photographs depict, as well as by the experts’ evidence about the vulnerability of the tree to re-ignition and the behaviour of fire when driven by high winds.

90. That they did not themselves conduct the formal RFS investigation, which the experts agreed had not adhered to all best practice principles, cannot lead to any different conclusion.

91. The same submission was not made in relation to Mr Knowles’ evidence. But there was an issue as to what should be made of his evidence. It was Mr Woodhouse’s case that his evidence established that the inspections he had made of the tree had not been frequent enough, or of such a character, as to have satisfied the obligation to take reasonable precautions to prevent the fire reigniting and spreading to Myack.

92. The defence contended that because Mr Knowles had not been cross examined to that effect, because that did not form part of the defence case, it was entirely improper for his conduct to be so impugned by Mr Woodhouse.

93. It will be necessary to return to this, but at this point it is sufficient to observe that Mr Knowles’ evidence included what he found when he examined the tree on 5 September and what he had done beforehand, in relation to the risk he had identified the tree posed. In summary, his evidence, when considered in light of the expert’s opinions and the evidence of other lay witnesses established that on 20 August, the RFS had left the tree standing on the ridge near the border of Myack, in an area burnt that day even though it was still smouldering. That was not detected then, or before 5 September despite inspections of the burn site and the tree, with the result that the tree was not pushed over and extinguished, as other trees had been.

94. Neither Mr Knowles and the other volunteers, nor the RFS are parties to the proceedings. In advancing his case that Mr Fitzgerald and Ms McCoy had breached the duty of care which they owed him, Mr Woodhouse is entitled to rely on evidence which helps establish that reasonable precautions were not taken to prevent the risk of the fire reigniting after the burn and spreading to Myack. That includes evidence given by Mr Knowles and others who undertook the burn, which is relevant to that issue.

95. While Mr Knowles was not cross examined about any negligence, Mr Aitchison was cross examined both about what had emerged from the RFS’ later review of the fire and his views about how the burn had been undertaken and later monitored. It was a matter for the defence to elicit opinions from Mr Knowles about this, if that was to be considered relevant.

Consequences of inadequacies in the fire investigation

96. While in the original defence written submissions, the RFS was at one point described as “the acknowledged experts in this field”, the case pressed was that because its post fire investigations had not been properly conducted, in accordance with the methods Mr Woods described, the result was that the cause of the Myack fire had not been reliably established, on the evidence led. The defence contended that it had not been established that the Myack fire had begun on Doran, or even that the tree which was extinguished on 5 September had originally been ignited in the August burn. It could have been ignited by whatever caused the 5 September fire, which had not been established.

97. I am satisfied that this may also not be accepted and that Mr Woodhouse has met the onus which fell upon him to establish the cause of the fire, on the balance of probabilities.

98. That Professor Adams and Mr Woods agreed that the RFS’ investigation which identified the source of the fire to have been the tree had not been conducted strictly in accordance with the applicable internationally recognised and accepted practices and methodology for fire investigation, must undoubtedly be taken into account in resolving whether the cause of the fire was established. Although it should be observed that Mr Hagan, the investigator, was not cross examined about his investigation methodology.

99. In Mr Woods’ opinion this rendered the conclusions reached in that investigation and in the later police investigation unreliable, given concerns which he explained about possible contamination of the site, prejudgement and inadequate attention given to other potential causes of the fire, with the result that the source of the fire had not been established. Logically, on his approach that would also preclude Mr Woodhouse satisfying the onus which fell upon him in these proceedings, to establish its source.

100. I do not accept that this is the case.

101. I am satisfied that it may not be accepted that failures in adhering to the best practice fire investigation methodology Mr Woods explained, make it impossible in proceedings such as this for a plaintiff to meet the onus which must be met, on the balance of probabilities. Were it otherwise, it would mean that before these investigation procedures were established in 2005, a plaintiff could never have met that onus. Nor could it be met now in cases where that investigation methodology is simply not in use.

102. Professor Adams’ opinion was that despite the way in which the investigations had been conducted, what had been uncovered established that the likely cause of the fire was the old smouldering tree, as both the RFS and police investigators had concluded.

103. In the joint report Mr Woods explained that in determining the origin of a fire, account had to be taken of weather conditions; fuel conditions; the post fire scene; and what site investigation and witness evidence had shown. He also explained that international wildfire investigation methodology was aimed at ensuring that investigators did not make assumptions about the origin of the fire, but considered and analysed all data collected and tested all the evidence gathered. He explained in detail how the investigation had departed from that methodology and why he thus considered that it followed that the precise origin of this fire could not be confirmed. The investigation material gathered and considered, having in his view, been too limited although he accepted that fire investigation also depended on resource availability and deployment.

104. In the concurrent evidence Mr Woods thus explained that he remained of the view that because of the deficiencies in the investigations he had identified, the cause of the fire could not be reliably established. The point of the investigation processes which he had described being to ensure that investigators did not jump to conclusions. While information provided by persons such as Mr Aitchison and Mr Knowles had to be taken into account, the fire progression across the landscape had to be determined by the investigator following fire pattern indicators, that is, the effects of the fire as it travelled across the landscape. While he had no doubt that Mr Aitchison, a local on the scene, had located the tree and the branch, the investigator had to follow an impartial process.

105. Mr Woods’ opinion was not altered by the fact that the RFS investigator Mr Hagan had been trained in the best practice investigation methods which in his view had not been followed, observing that “inevitably” what tends to occur in practice is that the methodology is not followed and conclusions are jumped to by investigators. He took into account that Mr Hagan was likely to have been under time pressure, but still considered the methodology critical for reliable identification of the fire source.

106. Professor Adams disagreed, considering that the conclusions which the investigators had reached to have been reasonable ones, even though the methodology had not been applied precisely. Mr Woods, however, did not accept that it was not inevitable that if this methodology was not followed, that the correct result could not be arrived at.

107. Mr Woods’ opinion simply cannot be accepted. Clearly there must be a risk of error if best practice is not adhered to, but it doesn’t follow, even as a matter of logic, that error is inevitable in every such case, or that it resulted in this one.

108. What must be considered in determining whether the onus which fell on Mr Woodhouse has been met is all of the evidence which sheds light on the question of where and how the fire originated. That includes not only how the RFS and Police investigations were conducted, but what they uncovered and the evidence which has otherwise been received in these proceedings, about those matters.

What the lay and expert evidence establishes

109. It is a combination of the lay and expert evidence which establishes the source of the fire was the tree.

110. The starting point for this conclusion is the lay and expert evidence which establishes that it is a well-known phenomenon, that an old hollow tree like that here in question, can smoulder for long periods of time and later reignite, long after a burn, even when conditions are cold or wet.

111. This is why Mr Woods accepted not only that it was possible that the tree which was extinguished on 5 September had been smouldering undetected, since it was burnt on 20 August, but that if there was any concern that this tree could pose such a risk, it should have been felled and a bulldozer and tanker used to break up the ground, to ensure it was fully extinguished.

112. That tree, which had been identified as posing a risk, had been left standing on a ridge near the border of Doran and Myack, known to be a wind funnel. lt was inspected after the burn. The unusual weather conditions on 5 September unquestionably gave rise to significant fire risks, which resulted in the imposition of a total fire ban, but it was not inspected that day until after the fire was extinguished.

113. Mr Knowles then found the tree hot to the touch. That it was still smouldering was confirmed when it was then extinguished. That was consistent with it having been left smouldering since 20 August, rather than catching alight from some other source on 5 September, as Mr Woods considered had not been reliably excluded.

114. In his report Mr Woods considered Mr Aitchison’s description of the RFS crew applying water to the ground at the base of the tree on 5 September that “the ground blew apart and large quantities of steam came up from the ground”. In his experience this suggested that the base and roots of the tree had been smouldering for a significant period of time and evidenced high temperatures having been retained under the soil, which may not have been obvious on visual inspection, but required physical examination.

115. That opinion was inconsistent with the case pressed in the defence final written submissions, that there was no real way of knowing that the tree was the source of ignition, “as opposed to having caught fire from embers caused by the Myack fire which spread to its roots”.

116. When Mr Knowles had earlier inspected that tree during his August patrols, he had found it on each occasion to be “benign”. But he did not inspect the tree on 3 or 5 September, until after the fire had been extinguished.

117. Mr Aitchison was not aware of any other fire which could have been the source of the 5 September fire, other fires having been attended to that day by other brigades and contained within a short time from ignition, despite the conditions that day being severe.

118. Contrary to the case advanced by the defence, the evidence does not permit the conclusion that it was a fire starting somewhere on Myack, elsewhere on Doran, or in the nearby vicinity which ignited the tree. There is simply no evidence which would support that conclusion, despite Mr Woods’ concerns about the adequacy of the later investigations.

119. Professor Adams explained in the concurrent evidence that there was no evidence of fire having burnt on 5 September upwind of the tree, while downwind, the grass was burnt. That pointed to the tree as the origin of the fire. He initially considered that the source of ignition could have been either the branch which blew from the tree or embers from the tree. Mr Woods accepted that the tree was a possible source of the fire, but considered that it was unlikely to have been the branch, with which Professor Adams finally agreed.

109. In the concurrent evidence Professor Adams also described how air moved across landscape in parcels with prevailing winds, which have a particular speed and direction, but that there are also lulls, so that wind does not always move in the prevailing direction and at the prevailing speed. Eddies of wind can move in unpredictable directions. The August burn had partially burnt the area around the tree, but it had not been uniform in its intensity. Some fuels had been left around the tree, with the result that with the second fire, it was the area downwind from the tree, which had been burnt. He also explained that there being two fire scars would have made the investigation more difficult, but he was still satisfied that the fire began in the tree.

110. Mr Woods agreed that the 100kph winds on 5 September would not have moved consistently across the topography, so that wind speed could have been stronger or weaker at different times, with the result being the eddying effects Professor Adams described. The photographs showed that fuel around the tree was sparse, but he agreed that fire could have got into the tree’s root base.

111. Professor Adams considered that the fire had travelled from that general location across the landscape with the strong prevailing wind, notwithstanding lulls and eddies, which in his opinion made it extremely unlikely that the fire started some distance away and then moved, against the wind, to the tree.

112. As to the fire starting elsewhere, Professor Adams gave an example of someone lighting a match 5 metres from the tree, with the result fire being carried to the tree being possible, but not if it was lit 200 metres away. Mr Woods did not disagree with this, but still considered it impossible to know whether there had been another potential source, given the deficiencies in the investigation.

113. Having been informed about Mr Aitchison’s evidence about a fire known to have occurred at Myack in the 1950’s, and that the topography north west of Myack created a wind funnel, Professor Adams described the relationship between fire and wind to be akin to that between water and gravity. Fire moving with wind, in his view confirmed that the source of the fire was the tree.

114. Mr Woods explained that fire behaviour was subject to three components: weather, fuel and topography and agreed that this part of the Monaro was very prone to very strong winds. But he was still not satisfied that the source of the fire had been identified.

115. The experts also discussed other possible sources of fire ignition, such as lightning; shooting activity; use of machinery; and cars driven across paddocks. There being no evidence of the presence of any of these other potential sources of ignition, which Professor Adams did not accept had not been investigated, he considered that there was only a remote possibility that the source of the fire was not the tree, which he assessed to be less than 5%.

116. Mr Woods’ position remained that while it was “quite possible” that the tree was the source, the evidence did not establish that it was, his view remaining that the investigations had not established the source. He also explained that he considered the error into which Mr Hagan had fallen, when examining other potential sources of the fire, to have been that he was assessing those causes against what he had assumed the source to be.

117. Professor Adams disagreed. He considered that all of the available evidence pointed to Doran as the source of the fire. The probability of the tree having smouldered since the burn and reignited on 5 September was high. Mr Woods maintained that while this was conceivable, it could not be confirmed because of the limited investigation material available.

118. The disagreement between the experts has to be considered in light of the fact that neither the RFS or police investigations, nor the other evidence led in these proceedings identified any likely source of the fire, other than the tree.

119. The RFS and police investigations both concluded that the fire had broken out on Doran. The RFS identified its source to have been this tree. The police report later made to the Coroner identified the origin to be a nearby property caused by strong winds reigniting a back burn, described to have been conducted by the RFS in August; the tree having then caught fire; the remainder of the fire having been extinguished, but not the tree; the gale force wind event then having reignited the tree, with embers being blown onto Myack, the winds being so strong that fire fighters were unable to protect Myack, which was extensively damaged. The report was supported by statements made by Senior Constable Hancock and Detective Senior Constable Hopkin; the fire investigation report; photographs; and other documents.

120. The Police report led to the conclusion that there was no need to conduct an inquiry into the cause and origin of the fire: ss 30, 31 and 46 of the Coroners Act 2009 (NSW).

121. Photographs of the tree taken by Mr Aitchison on 5 September and later by Mr Nathan, the RFS investigator, as well as of the fence nearby, showed that it had other singed braches still stuck in it. This tree was one of only two old trees left standing on the ridge. There was no suggestion that the branches could have come from the second tree.

122. The experts agreed that a comprehensive investigation of the burn site could help determine the origin and cause of a fire, which could not be deduced from an examination of photographs, but they certainly put into context the evidence of what those present on 5 September and those who conducted the later investigations saw.

123. Mr Hagan concluded that the cause of the fire was burning debris which originated from the tree, which was located in the burnt area of the hazard reduction burn, resulting in the tree branch being broken and blown approximately 50 metres to the southeast, igniting grassland there.

124. His report established that Mr Hagan did consider other potential causes, which he excluded. They included lightning; campfire; smoking; equipment use; incendiary fire play; rail; power lines; and miscellaneous matters, of which he found no evidence. Despite Mr Woods’ criticism of the report and Mr Hagan’s investigation methods, he was not required for cross examination.

125. The evidence also established that there had been no reported lightning strikes on 5 September which could have started the fire, and that while, during the course of the morning other fires had broken out elsewhere in the District there was no suggestion that they could have started the Myack fire, given their location.

126. Two other conceivable sources identified were the nearby township of Doran and a road which traversed Doran, some distance from the tree on which the defence relied to submit that they had not been ruled out and the Investigation Report made no reference to them. But nothing in the evidence provides any basis for concluding that such sources were likely to have been involved in starting this fire.

127. Neither the experts’ evidence, nor the evidence of the state of the tree on 5 September, what happened when it was doused, or the 100 kph winds driving from the direction of the tree into Myack, leave that possibility reasonably open, given that there was no evidence of a second fire upwind of the tree.

128. Also necessary to consider is Mr Woods’ description of the results of research on the interaction between snow, water and soil on subsurface smouldering vegetation, inhibiting loss of heat and prolonging the process, which he considered is what “may well have occurred” with this tree, after the prescribed burn. He also agreed with Professor Adams, that ignited hollowed out trees were difficult to fully extinguish and that the detection of fire spread in roots and tubers underground could be extremely difficult.

129. Mr Woods also considered that the interaction of the snow and rain which had fallen on Doran after the controlled burn could have acted as an insulator on the subsurface smouldering vegetation, inhibiting the loss of heat and access of oxygen to the smouldering timber, prolonging the smouldering process: at [63]. He said that may not have been obvious through visual inspection and thus required physical examination.

130. There is no issue about the adverse weather conditions that prevailed on 5 September. They included unseasonably high temperatures, low humidity and winds of over 100kph, blowing from the direction of Doran. There were pine trees and bales of hay near the Myack homestead which were engulfed by fire and contributed to the ember attack on the homestead, but there was also no evidence that the fire ignited in those trees or hay bales.

131. Even accepting the criticism of the fire investigation, there is simply no evidence which leaves open as a reasonable possibility that the Myack fire originated from somewhere other than the tree not properly extinguished on 20 August and then left smouldering, undetected until it reignited on 5 September.

132. As a result I am satisfied that Professor Adams’ opinion that the probability that the fire was caused by some source of ignition other than the tree was exceedingly small, must be accepted. It follows that Mr Woodhouse has established on the balance of probabilities, that the source of the fire was the tree left smouldering, undetected, from 20 August.

Did Mr Fitzgerald and Ms McCoy owe Mr Woodhouse a non-delegable duty of care?

144. The evidence, including Mr Woods’ opinions to which I have already referred, established that not only was there a risk of fire escaping from Doran during the burn conducted on over 550 acres on 20 and 28 August, but that there was also a risk of the fire reigniting and escaping afterwards, if it was not properly extinguished. That was why post burn patrols were conducted by the RFS.

145. Mr Woodhouse does not claim that Mr Fitzgerald and Ms McCoy were vicariously liable for the conduct of the RFS. His case is that the 16 August acknowledgement provided to the RFS put beyond question, that they were aware of the duty which they owed him, during and after the burn, to take reasonable care. Further, that it was a non-delegable duty, not satisfied simply by arranging for the burn and its later monitoring to be conducted by the RFS.

146. This was in issue.

147. Mr Fitzgerald and Ms McCoy accepted that “as the occupier[s] of property on which a fire may ignite, [they] owed a duty to neighbours (in the sense of those persons who lived or owned land in the proximity of the tip) to take reasonable care to prevent the ignition of a fire and to prevent its spread.” Weber v Greater Hume Shire Council (2019) 100 NSWLR 1, [2019] NSWCA 74 at [19]. But they denied that their duty was non-delegable, when fire was introduced to their land, despite what was decided in McInnes v Wardle (1931) 45 CLR 548; [1931] HCA 40 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13.

148. The facts which arose in all three of those cases concerned the risk of fire escaping and damaging a neighbour. But McInnes and Burnie were submitted to be distinguishable because it was the RFS which had been engaged to undertake the burn, it being required to do so in accordance with the requirements of the Rural Fires Act 1997 (NSW).

149. It was also the defence case that Mr Fitzgerald and Ms McCoy’s acknowledgement was given for the “benefit” of the RFS, not third parties.

Mr Fitzgerald and Ms McCoy’s acknowledgment

150. The August 2012 pro forma “request for assistance with a prescribed burn” that Mr Fitzgerald and Ms McCoy signed, provided:

“I Barry Thomas Fitzgerald and Virginia McCoy as owner/occupier of “Doran” XXXX request the assistance of the NSW Rural Fire Service (the RFS) in undertaking a prescribed burn (the Burn) on the Land. A description of the Burn and a map identifying the Land and the site of the Burn is attached.

I acknowledge I am responsible for:

* obtaining all relevant environmental approvals, including a bush fire hazard reduction certificate if required; N/R

* obtaining a fire permit if required; N/R

* making any notifications that are required (including all adjoining land owners/occupiers 24 hours prior to lighting the Burn); Local RFS Personnel will do

* establishing any ‘control lines’ that may be required. Done 14 & 15 August Lex Suthern.

I also acknowledge that I will remain responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished notwithstanding any assistance that may be provided by the RFS.

I hereby consent to members of the RFS: entering the Land for the purpose of assisting in the planning, preparation and execution of the Burn.”

151. The term “prescribed burn” was not a term used either in the Rural Fires Act or the Regulations. It is pertinent that this was a standard form for “assistance” with a burn, but there is no issue that what Mr Fitzgerald and Ms McCoy sought and the RFS agreed to do was itself to conduct the burn, after Mr Fitzgerald and Ms McCoy had engaged Mr Suthern, also an RFS volunteer, to install control lines for the burn with his bulldozer, as Mr Aitchison had advised them.

152. Ms McCoy’s evidence was that she obtained the form from the RFS and made the handwritten notations “N/R” next to the bush fire hazard reduction certificate and fire permit dot points. The entries “Local RFS Personnel will do” next to the notification dot point and the entry “done: 14 and 15 August Lex Suthern” were also hers. They reflected a conversation which she had with a Ms Evans at the Berridale RFS office. Ms Evans was not called to give evidence, nor is there evidence that Mr Fitzgerald and Ms McCoy or the RFS obtained any permit to conduct the burn.

153. Despite the acknowledgment Mr Fitzgerald and Ms McCoy provided, on their affidavit evidence they understood that any risk of fire spreading from Doran as the result of the controlled burn was not their responsibility, but that of the RFS, given their advice that they were absentee landlords. Furthermore, they were ignorant of any risk that the fire could reignite after the burn.

154. Mr Fitzgerald and Ms McCoy thus did not take any steps to ascertain what Mr Suthern did after they engaged him to install the fire control lines. They also took no steps to ascertain what precautions the RFS volunteers who conducted the burn proposed to take to prevent fire escaping from Doran, during or after the burn. Nor did they take any steps to establish that those precautions were actually being taken.

155. On the case initially pressed in the defence final written submissions, had they attempted to do so, there was a potential conflict between what they might have required of the RFS and the statutory duty imposed upon it by s 63 of the Rural Fires Act, given that it imposes a duty on public authorities to take practicable steps to prevent the occurrence of bush fires and to minimise the danger of the spread of bush fires. In final oral submissions, however, it was conceded that this section did not apply to the RFS.

156. But the acknowledgement which Mr Fitzgerald and Ms McCoy gave the RFS was certainly consistent with the obligations which s 63 imposed upon them, as well as with the duty which they accepted that they owed Mr Woodhouse.

157. Despite these obligations, Mr Fitzgerald and Ms McCoy did not concern themselves with either the work they had engaged Mr Suthern to perform, or the conduct of the burn or its aftermath. Even on 2 September when Mr Fitzgerald went to Doran, he did not inspect the burn site, other than by going to the knoll which overlooked it, to see what had been burnt. Mr Fitzgerald and Ms McCoy did not even make any enquiries of the RFS or anyone else, as to whether they needed to do anything themselves, either during or after the burn.

158. The defence case was that they had not needed to do so, given that Doran then remained in the control of the RFS, which did not hand control back to them, until they met with Mr Aitchison after the Myack fire. Nothing in the statutory scheme was pointed to as providing a basis for the conclusion that Mr Fitzgerald and Ms McCoy, the owners of Doran, had no control over their property, because the RFS had agreed to conduct this burn. Nor can one be found in the acknowledgment which they gave the RFS, when seeking its assistance.

159. On 5 September the ambient temperature was unseasonably high, with low humidity and gale force winds, with the result that a total fire ban was imposed, but Mr Fitzgerald and Ms McCoy did not monitor the weather conditions and took no steps even to enquire of the RFS whether any precautions needed to be taken, to deal with any risk of the fire reigniting. Nor did the RFS take any precautions to guard against that risk materialising that day.

160. Whether, as absentee landowners, Mr Fitzgerald and Ms McCoy leaving all precautions in relation to the burn and ongoing post burn risks entirely in the hands of the RFS was a sufficient precaution, given the duty which they owed Mr Woodhouse and the acknowledgement they had given, was in issue.

161. The defence contended that the acknowledgment had been given for the “benefit” of the RFS. That submission has to be considered in light of s 128 Protection from Liability of the Rural Fires Act. It protects RFS officers and members, as well as the Crown and others, from liability for matters or things done or omitted to be done in good faith for the purpose of executing any provision of that or any other Act, other than s 33. Section 33 is concerned with RFS brigades voluntarily co-operating with a public authority in the exercise of any of the authority’s prescribed functions.

162. In light of s 128, it is difficult to see how the acknowledgment which Mr Fitzgerald and Ms McCoy gave could have been for the benefit of the RFS. It rather appears to reflect the duty imposed by s 63 on landowners, as well as the duty which landowners have long been recognised to owe their neighbours, when using, or authorising the use of fire to clear or burn off their land. That duty requires them to see that reasonable care is exercised to prevent the fire from spreading, even when the landowner has no right to supervise the person who has been authorised to use fire on the property: McInnes at p 552.

163. While Ms McCoy was not available for cross examination due to ill health, Mr Fitzgerald properly conceded in his cross examination that having given the acknowledgement, he understood that he was responsible for preventing the spread of fire from Doran. But even when he went to Doran on 2 September he made no enquiries of anyone from the RFS about what precautions were being taken in relation to the ongoing risk of fire, even though it must have been apparent from what he observed that day, that no-one was then on the fire ground.

164. That was because, as he explained, he understood that the RFS had not completed their work and monitoring was continuing, by ad hoc inspections. But he agreed that he had been given no reassurance about that. From his conversation with Mr Aitchison before the burn, he understood that they would be given a document on completion. He denied understanding on 31 August that only some dampening down operations remained to be completed, even though in his affidavit he recounted that was what Ms McCoy had told him in late August.

165. Mr Fitzgerald also said that he did understand that the burn had been undertaken by RFS volunteers who had other employment and occupations and so could not give full time attention to monitoring Doran after the burn. He understood, however, that they were highly trained and responsible people who would take steps to ensure that the monitoring was done and if it couldn’t be for logistical reasons, that they would “go to clear and unambiguous steps” to ensure that either he or Ms McCoy “personally or otherwise took over their responsibility” Mr Fitzgerald denied that the acknowledgment he had given constituted such steps.

166. Mr Fitzgerald also said that they had taken steps to prevent the spread of fire, by engaging Mr Suthern to install fire control lines, but agreed that they had not personally taken any other steps.

Reasonable precautions Mr Fitzgerald and Ms McCoy failed to take

329. As I have already discussed, the evidence also establishes that a reasonable person in the position of Mr Fitzgerald and Ms McCoy, having sought and obtained the RFS’s agreement to conduct a dangerous burn on Doran as they did, for which they acknowledged their ongoing responsibility, ought to have themselves taken available precautions. 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.

330. On the evidence, these would also all have been reasonable precautions to take.

331. There was also an issue as to whether Mr Fitzgerald and Ms McCoy had any arrangement in relation to the burn and monitoring Doran with Mr Warner, an RFS volunteer, who in 2012 had been engaged to do various jobs on Doran, including weed spraying, road works and rabbit baiting, to be involved after the burn. Ms McCoy also said that he had been present during the meeting with Mr Aitchison, but Mr Aitchison did not remember him being there and Mr Warner denied having anything to do with organising the burn.

332. As I have explained, Mr Warner was not required for cross examination and so his evidence, corroborated as aspects of it were by Mr Aitchison, must be accepted. Mr Fitzgerald and Ms McCoy seem to have contemplated Mr Warner being engaged to provide his assistance after the burn, but they did not do so. On that evidence, engaging Mr Warner would have been a way by which they could have met their obligations to take reasonable precautions.

Causation

333. The onus also fell on Mr Woodhouse to prove causation: Civil Liability Act, s 5E. Section 5D also applies, providing:

“5D   General principles

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

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

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

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

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

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

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

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

334. There is no issue that Myack was extensively damaged by the fire which I have explained spread from the tree which reignited, as the result of the failure to take the reasonable precautions which I have discussed.

335. There were reasonable precautions which were available to be taken, which could have prevented the spread of fire. They included firstly, knocking the tree over in the way in which Mr Aitchison and Mr Suthern described. Secondly, having identified it as a tree which needed to be observed after the burn, given the propensity of the root systems of such trees to continue smouldering undetected, because of the difficulty of identifying this in the absence of equipment not then available to the Berridale brigade, checking the state of the tree on 5 September when the weather conditions were such that it was at heightened risk of reignition. If these steps could not have been taken by the RFS, they ought to have been taken by Mr Fitzgerald and Ms McCoy who also failed to take the other reasonable precaution which I have explained.

336. The scope of the duty must be assessed prospectively: Hallmark at [35]. But on all of that evidence, there can be no question that causation has been established, the failure to take these precautions having resulted in the materialisation of the harm and it being appropriate in all of the circumstances which I have discussed, for the scope of Mr Fitzgerald’s and Ms McCoy’s liability to extend to the harm which Mr Woodhouse suffered.

337. Contrary to the case pressed for the defence, taking such precautions would undoubtedly have helped prevent the spread of fire to Myack.

338. As discussed in Hargrave v Goldman (1963) 110 CLR 40 at pp 71-72; [1963] HCA 56 the law has long imposed a duty to exercise reasonable care on the owner of land upon which there is a fire of which the owner knows or ought to know, “if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished.” Further:

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

339. Their duty having been breached as it was after they arranged to have 550 acres of Doran burnt as they did by RFS volunteers and causing Mr Woodhouse the considerable damage which he suffered, because reasonable and available precautions were not taken to prevent the fire reigniting, Mr Fitzgerald and Ms McCoy must be held responsible for the harm which he suffered.

Proportionate liability

340. Also in issue, however, was whether Mr Fitzgerald and Ms McCoy and the RFS were concurrent wrongdoers as defined in s 34(2) of Part 4 of the Civil Liability Act, with the result that under s 35, their liability would be limited to the proportion of Mr Woodhouse’s damage “that the court considers just having regard to the extent of” their responsibility for his damage. The sections provide relevantly:

“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) ….

(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).

(3A) …

(4) ….

(5) (Repealed)

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.”

The parties’ cases

341. Mr Woodhouse contended that Part 4 of the Civil Liability Act and these sections did not apply, it being settled that a concurrent wrongdoer must be a wrongdoer at law: Chandra v Perpetual Trustee Victoria Limited [2007] NSWSC 694 at [110] and Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367.

342. Further, that the RFS could not be a concurrent wrongdoer, it having no legal liability to him for its acts and omissions in the conduct of the burn and its subsequent monitoring of Doran: s 128 Rural Fires Act. If Part 4 did apply, the effect of s 39 was to make Mr Fitzgerald and Ms McCoy liable for the RFS.

343. It was the defence case that given that the RFS was not a party to the proceedings, no full consideration could be given to any potential claims which Mr Woodhouse may have against it.

344. What had rather been undertaken was an examination of its factual contribution to Mr Woodhouse’s loss, that being the relevant enquiry: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10. Thus any damages ordered against Mr Fitzgerald and Ms McCoy were limited to the ”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: s 35(1) Civil Liability Act.

345. Reliance was also placed on Bird v Ford [2013] NSWSC 264, where I concluded that “It is the extent of a defendant's responsibility for the damage or loss in question, which dictates the judgment which may be given against that defendant. Under s 35(1)(b), judgment may not be given against a defendant for more than that amount, irrespective of whether or not the plaintiffs could recover the balance from a concurrent wrongdoer.” at [254].

346. It was argued for Mr Woodhouse that what was there said, was not to the contrary of what had been decided in Milanex.

Mr Fitzgerald and Ms McCoy and the RFS were concurrent wrongdoers

347. Section 39(a) of the Civil Liability Act provides that nothing in Part 4 “prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable.” Mr Woodhouse does not claim that Mr Fitzgerald and Ms McCoy were vicariously liable for the acts and omissions of the RFS. Their liability arose from the breach of their non-delegable duty.

348. I have already discussed the operation of s 128 of the Rural Fires Act and s 43A of the Civil Liability Act. 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.

349. In Chandra Bryson AJ discussed why particular persons were concurrent wrongdoers, given their involvement in causing the damage and others were not, having owed the plaintiff no duty of care for which they could be liable and others not having breached their duty.

350. In Milanex it was held at [94] that:

“As Perpetual submitted, “concurrent wrongdoers" within the meaning of Part 4 Civil Liability Act 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 (St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245; (2009) 25 VR 666 at [64]). It is not however necessary that all concurrent wrongdoers be parties to the proceedings (see s 35(4)).”

351. A similar view was taken in Utility Services Corporation v SPI Electricity Pty Limited (2012) 35 VR 628; [2012] VSCA 158.

352. In Hunt & Hunt Lawyers it was observed, however, at [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 [70]. The language of liability is used in contribution legislation [71], 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 enquiry at this point, which is one of fact.”

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, where someone 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.

Amount of apportionment

354. As explained in P & M Quality Smallgoods at [67], even in the case of a non-delegable duty, the apportionment of responsibility for damage involves a comparison of culpability. That is, the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. The whole of the conduct of each negligent party must thus be comparatively examined: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34.

355. The defence case was that if negligence was found, any damages apportioned to Mr Fitzgerald and Ms McCoy would be not more than nominal, in all of the circumstances I have discussed.

356. I do not agree, even though it must be accepted that Mr Fitzgerald and Ms McCoy had no control or influence over how the RFS undertook the burn and its later monitoring.

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.

358. They did none of those things. Mr Fitzgerald and Ms McCoy’s acts and omissions having also contributed as they did to Mr Woodhouse’s damages, the just apportionment of these concurrent wrongdoers’ responsibilities, could not result in only a nominal apportionment on their part.

359. I am also satisfied that the apportionment must, however, reflect the greater contribution of the acts and omissions of the RFS, to the damage which Mr Woodhouse suffered. That flows from its statutory role and what it undertook, knowing that Mr Fitzgerald and Ms McCoy were absentee landowners who would not be present themselves to deal with the risk of the fire reigniting after the burn; not having communicated with them after the burn, about the risk of reignition which had been identified and how it was to be monitored; not inspecting the tree on 5 September, despite the unseasonal high fir risk which existed that day and the tree having been identified as posing a risk of re-ignition, a risk well known to be difficult to detect and able to continue, for weeks and even months after a burn .

360. In my assessment the just apportionment between these wrongdoers results in Mr Fitzgerald and Ms McCoy bearing responsibility for 35% of Mr Woodhouse’s damage.

Nuisance

The parties’ cases

361. Mr Woodhouse relied on the evidence which had established negligence, to submit that he had also made out a case in nuisance, relying on the principle discussed by Windeyer J in Hargrave v Goldman at p 60:

"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."

362. In Gales Holdings Pty Limited v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 it was observed at [131]-[132]:

“A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman [1963] HCA 56; 110 CLR 40 at 59-61). There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person's enjoyment of land occupied or owned by that other person, unless the first person's conduct involves no more than the reasonable and convenient use of its own land (Hargrave v Goldman at p 62).”

“That is to say, nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. However, an owner or occupier of land is not an insurer. There must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore [1982] HCA 71; 149 CLR 480 at 487-488).at [132]”

363. Again the defence contended that the pleaded case had not been established. What was pleaded was:

“Nuisance

19   The purpose of the defendants in undertaking weed reduction by on Doran by means of the Fire constituted a use of that land.

20   The defendants knew, or ought to have known, that the Fire constituted a source of potential nuisance to Myack.

21   By the terms of the Request for Assistance, the defendants:

a.   engaged the RFS, as their agent to start the Fire;

b.   engaged the RFS as their agent to undertake limited management of the Fire; and

c.   agreed with the RFS that they maintained responsibility for preventing the spread of the Fire.

22   Under the terms of the Request for Assistance, from 31 August 2012, the defendants adopted the Fire as a source of nuisance.

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.

24   The nuisance caused by the spread of fire from Doran to Myack on 5 September 2012 resulted in damage and loss to the plaintiff's property as particularised in paragraph 16.

25   The damage and loss sustained by the plaintiff as a result of the spread of the Fire onto Myack on 5 September 2012 was as a result of the acts and omissions of the defendants as pleaded and the plaintiff repeats paragraph 14 in relation to that nuisance.”

364. The defence was that the claim in nuisance could not succeed because there was no evidence of facts, matters or circumstances from which Mr Fitzgerald and Ms McCoy ought to have known of the nuisance: Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344. Nor was there evidence that they failed, to take reasonable measures, within a reasonable time to bring the potential or actual nuisance to an end: Robson v Leishcke (2008) NSWLR 98.

365. Nor could they have adopted or continued any nuisance or potential nuisance because they were not in occupation and the RFS was in control of Doran, even as at 5 September. In those circumstances they were not “occupiers” and neither created or continued any state of affairs created by the RFS. Further, even if they were occupiers, the fire was not an actual nuisance, the prescribed burn not having interfered with Myack and thus at its highest being only a potential source of nuisance. Nor was there evidence that they had actual or constructive notice of that potential nuisance.

Nuisance was established

366. The defence case may not be accepted.

367. Mr Fitzgerald and Ms McCoy were the owners of the property. It was they who applied to the RFS for assistance with the fire which they wished to use on Doran, in order to eradicate weeds and dry vegetation on over 550 acres of their land. On their evidence there can be no question as to their understanding that such a fire was a potential source of nuisance. That is why they sought the assistance of the RFS, not only in undertaking the burn, but also with post burn monitoring.

368. That by agreeing to provide that assistance the RFS took “control” of Doran, does not follow. To the contrary Mr Fitzgerald and Ms McCoy gave the RFS their written acknowledgement of their responsibility during and after the burn. That is entirely inconsistent with them having ceded their control of Doran to the RFS.

369. In those circumstances, while inexperienced landowners, having decided to undertake such a burn, Mr Fitzgerald and Ms McCoy ought to have known that a fire left smouldering in the roots of a tree could reignite, posing an ongoing risk that fire could spread to a neighbouring property. That they had such an understanding was consistent with Ms McCoy’s evidence as to her experience of burns which her father had conducted and the concern which she and Mr Fitzgerald shared, to have the RFS undertake post burn monitoring, given that both she and Mr Fitzgerald proposed to be absent from the property during and after the burn.

370. Nor can the defence submission that enquiries of the RFS would not have revealed any ongoing fire risk after the burn be accepted, given the evidence of Mr Aitchison, Mr Knowles and Mr Bottom. Nor can the submission that Mr Fitzgerald and Ms McCoy could not have suspected that any post burn fire would breach the control lines which had been put in place. They had not been involved in or even made themselves aware of what Mr Suthern had done. But on his evidence, as I have explained, the lines he installed did not protect fire from spreading to Myack, if it reignited in the tree, which Mr Knowles had identified as posing a risk of reignition, because no control line was put around the tree and yet it was not knocked over, or adequately inspected after the burn.

371. Had Mr Fitzgerald and Ms McCoy made any enquiries of the RFS, as they should have, given the acknowledgement which they had given, as to what control lines had been put in place and what the risk of the fire reigniting was, that would also have revealed the nature of the ongoing risk which the tree on the border of Myack posed and what had been done and was being done to deal with that identified risk.

372. Mr Woodhouse suffered considerable harm when fire spread to Myack, as the result of the breach of the non-delegable duty which Mr Fitzgerald and Ms McCoy owed Mr Woodhouse.

373. Given the negligence which has been found, that the fire which spread to Myack resulted in an unreasonable interference with Mr Woodhouse’s enjoyment of his property, cannot be doubted.

374. While the fire was not spread deliberately to Myack, the evidence establishes that by their acts and omissions Mr Fitzgerald and Ms McCoy permitted the nuisance which resulted in the damage Mr Woodhouse suffered. That they discharged any positive duty which they owed him was not established.

375. While reliance was placed by the defence on Sutherland Shire Council v Becker, Bryson JA there referred to Sedleigh-Denfield v O’Callaghan & Ors [1940] AC 880, where it was observed at 904-905:

“The gist of the present action; however, is the unreasonable and unjustified interference by the defendants in the user of their land with the plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith, and in a genuine belief that it is justified. Negligence here is not an independent cause of action, but is ancillary to the actual cause of action, which is nuisance.

...

The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant, by himself or those for whom he is responsible, has created what constitutes a nuisance, and if it causes damage, the difficulty now being considered does not arise; but he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that, with ordinary care in the management of his property, he should have realised the risk of its existence.

...

if the defendant did not create the nuisance, he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became, or should have become, aware of it.”

376. In Rickard & Ors v Allianz Australia Insurance Ltd & Ors (2009) 54 MVR 214; [2009] NSWSC 1115, after again referring to Sedleigh-Denfield, Hoeben J observed:

“As Lord Wright made clear in Sedleigh-Denfield, constructive knowledge for the purposes of nuisance does not equate with foreseeability in negligence. The test is not whether a risk is farfetched or fanciful, but whether there is evidence of facts, matters or circumstances from which the defendant ought to have known of the nuisance. In this case that means “ought to have actual knowledge of the fact of water flowing directly from the driveway across the highway”, not, “ought to have foreseen the risk that water might flow directly from the driveway across the highway if a sufficiently severe rainfall event were to occur at some time in the future” at [188]

377. In this case the risk of fire escaping during and after the burn which Mr Fitzgerald and Ms McCoy had arranged to have the RFS conduct on Doran was not only apparent, but known.

378. As the result of the negligence established that risk materialised, damaging Myack with the result being an unreasonable and unjustified interference with Mr Woodhouse’s property, for which Mr Fitzgerald and Ms McCoy were responsible, that constituting a nuisance for which they are also responsible. That precludes the conclusion that the burn and how it was monitored afterwards involved “no more than the reasonable and convenient use” of their land.

Contributory negligence

379. Section 5R of the Civil Liability Act applies to the question of contributory negligence. It provides:

“5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

380. Section 5R requires that the Court apply the provisions of ss 5B and 5C in determining whether contributory negligence has been established. That requires whether Mr Woodhouse took reasonable care of his own property to be determined, taking into account the statutory prescriptions in s 5B. The standard of care is that of a reasonable person in his position, determined on the basis of what he knew: Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [162].

The parties’ cases

381. The defence case was that if the risk of the tree reigniting was foreseeable, as Mr Woodhouse claimed, it was equally foreseeable by him once he became aware that the burn had been conducted. Despite this he took no steps to ascertain what had been done to deal with that risk; even on 5 September, when he knew about the weather conditions which heightened the risk of the fire reigniting and that his mother, who was suffering from dementia, was home alone at Doran that morning. Nor did Mr Woodhouse take any steps to monitor Myack, where it bordered Doran that day.

382. Mr Woodhouse contended that there had been no contributory negligence on his part, he having been given no notice of the burn, or of the steps taken to extinguish the fire used and also having no reason for thinking an inquiry of the RFS was necessary, or to seek its advice.

Contributory negligence is established

383. What is required is a “determination whether a person has taken reasonable care for the person’s own safety”: Grills at [162].

384. While neither the RFS or Mr Fitzgerald and Ms McCoy notified Mr Woodhouse before the August burn was conducted on Doran, he did become aware that it had been undertaken in late August and then spoke to Mr Aitchison.

385. But it was only on the afternoon of 5 September that Mr Woodhouse went to Myack, despite having heard of the high fire danger warning during the course of the morning. By the time he arrived his mother was no longer there and the fire was well alight and being fought by RFS volunteers, who were only able to extinguish it after much damage was caused.

386. Mr Woodhouse was an experienced grazier, unlike Mr Fitzgerald and Ms McCoy. It is unlikely that he did not know of the risk of re-ignition which existed if a burn such as that he learned had been undertaken on Doran was not properly extinguished. If he did not, that was a risk of which he unarguably ought to have known.

387. Given the nature and severity of that risk, Mr Woodhouse ought also to have taken reasonable and available precautions to guard against it materialising. They included asking the RFS if they had identified any ongoing risk which had to be monitored after the burn; how the monitoring was being undertaken; and on 5 September, when the risk of reignition was increased by unusual weather conditions, what monitoring was being undertaken that day.

388. On 5 September he would have learned that the burn site was not being monitored and could himself have taken steps to monitor his property on its border with Doran, in order to call out the RFS if it needed to deal with any reignition. His failure to do so in the circumstances was also causative in the damage which resulted, given that the fire was only noticed by Mr Knowles when he saw smoke coming from the vicinity of Myack and Doran, at a time when it may sensibly be inferred, it was well alight.

389. I am satisfied that his contribution must be assessed at 10%.

Quantum

390. As I have explained, there is no basis in the evidence for the conclusion that Mr Woodhouse owned the contents of the homestead which he finally pressed, or even that in September 2012 he had possession of them. The case finally pressed was that possessory title was sufficient, but he did not live at the homestead which his mother and sister then shared. How he, rather than they, had possession of the contents is not apparent.

391. Also in issue was whether Mr Woodhouse had established a basis for the order which he seeks for the cost of rebuilding the homestead, the defence case being that he had not done so and was entitled only to nominal damages.

392. It is settled that damages can be "inherently difficult to quantify" because they involve "estimating a risk, measuring a chance, or predicting future uncertain events": Troulis and Anor v Vamvoukakis [1998] NSWCA 237 at [30]. Thus the court may have to do the best it can, to assess damages on the evidence led.

393. But there is a difference between cases where a plaintiff cannot adduce precise evidence of loss and those where the plaintiff was able to do so, but did not: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 at [38].

394. Mr Woodhouse relied not only on Mr Froeschl’s opinion, but also on what the experts agreed in the joint report, which was that the reasonable cost of replacing the Myack Homestead at December 2012 was $791,938.22 as per the Sedgwick Quantity Surveyor Report of 02 July 2019. Further, that the price index increase of 22.84%, as per Rawlinsons Australian Construction Handbook 2020, could be applied to the December 2012 cost with the result a cost as at March 2020 of $972,816.91.

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.

396. The defence case was that Mr Froeschl’s report did not establish the “relevant characteristics of the house”. But as I have explained, the submission that the only evidence of those characteristics was the one builder’s quote attached to his report, cannot be accepted.

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 we;; as a quote for the remaining work. There are also opinions which the experts expressed.

398. The defence did not finally tender the reports of their quantum experts, but the joint report was in evidence. There Mr Froeschl, Mr Webb and Mr Gallagher agreed that “the reasonable cost to replace the Myack Homestead at December 2012 is $791,938.22 as per the Sedgwick Quantity Surveyor Report dated 02 July 2019.”

399. While undoubtedly more detailed evidence could have been led about the characteristics of the house, I am satisfied that the evidence was sufficient to require, as Sackar J was in Camellia Properties Pty Ltd and Ors v Wesfarmers General Insurance Ltd [2013] NSWSC 1975 at [395], on which the defence relied, that I come to a conclusion about the cost of reinstatement of the homestead.

400. Given all of the evidence, this is not a case of failure of proof by the party carrying the onus, where guesswork would have to be substituted for evidence, discussed in Troulis at 13-14. Nor is there an absence of the raw material to which good sense may be applied, so that justice does not dictate that a figure should be plucked out of the air, as was there also discussed.

401. The defence also contended that given the paucity of primary evidence on which the experts opinions were based, it was unsurprising that “the underlying evidence of what solution they purported to cost is not before the Court” and that the process of joint conferencing and preparation of the joint report which had resulted in an agreed amount, had not relieved Mr Woodhouse of the burden of proving what the costed item, the homestead, comprised and that what had been costed, was what had been lost: Barescape Pty Ltd atf the Vs Family Trust & Ors v Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust & Anor (2011) 81 NSWLR 345; [2011] NSWSC 1002 at [4].

402. There Black J referred to r 31.26 of the Uniform Civil Procedure Rules which relevantly provides that a joint report "may be tendered at the trial as evidence of any matters agreed", which he observed was “permissive and not mandatory and does not require but merely permits the admission of a joint report”: at [3].

403. In this case I have concluded that Mr Froeschl’s report was admissible, as was the joint report, even though the defence did not finally tender their experts’ reports. I am also satisfied that the primary evidence was a sufficient basis for the experts to come to an agreed costing. If they had a different view, given the requirements of the expert’s code of conduct to which they had to adhere, they would have undoubtedly said so and explained why in the joint report. That they did not do so supports the conclusion which I have reached, that their assessment of the cost of rebuilding the homestead must be accepted.

404. In the result it cannot be concluded that Mr Woodhouse is entitled only to nominal damages for the homestead.

405. I am satisfied that justice requires that Mr Woodhouse receive damages in the amount that the experts agreed, apart from the contents of the homestead. The parties agreed on the calculation of damages as at 2020, if I reached this conclusion to be $1,298,036.03.

406. They must, however, be adjusted to take into account the conclusions which I have reached about the RFS being a concurrent wrongdoer and Mr Woodhouse’s contributory negligence.

Costs

407. The usual costs order costs under the Rules is that costs follow the event. In this case that would be an order for costs as agreed or assessed in Mr Woodhouse’s favour. If the parties seek any different order, they should approach within 7 days.

Orders

408. For these reasons there must be a verdict for Mr Woodhouse. The parties should confer and file orders reflecting the conclusions which I have reached within 7 days.

409. If there are any issues as to costs, I will hear them.

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Amendments

28 April 2020 - coversheet - corrected representation

30 April 2020 - paragraph [405] - changed end of 1st sentence to "apart from the contents of the homestead."

Decision last updated: 30 April 2020