| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : YEING -v- PG BOYLE & AM BOYLE [2014] WADC 54 CORAM : SCHOOMBEE DCJ HEARD : 17 FEBRUARY 2014 DELIVERED : 24 APRIL 2014 FILE NO/S : CIV 3237 of 2011 BETWEEN : JAMIE LAWRENCE YEING Plaintiff
AND
PG BOYLE & AM BOYLE
Defendant
Catchwords: Tort - Whether defendant failed to take reasonable precautions against the risk of fire escaping from his farming property after prescribed burning of stubble on his land - Whether the failure to take all reasonable precautions caused the plaintiff's loss Legislation: Civil Liability Act 2002, s 5B(2), s 5(C)(1) Result: Plaintiff's claim upheld in the amount of $225,691.77
Representation: Counsel:
Plaintiff : Mr G R Hancy
Defendant : Mr J R B Ley
Solicitors:
Plaintiff : Greenland Legal Pty Ltd
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520
Doonan v Beacham (1953) 87 CLR 346
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79
Strong v Woolworth Ltd t/as Big W (2012) 86 ALJR 267
Vairy v Wyong Shire Council (2005) 223 CLR 422
Waverley Council v Ferreira (2005) Aust Tort Reports 81-818
Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213
Wyong Shire Council v Shirt (1980) 146 CLR 40
1 SCHOOMBEE DCJ: Mr Jamie Yeing, the plaintiff, lost two tractors and a spreader when they caught fire shortly after Mr Peter Boyle had conducted a prescribed burn on adjoining farming properties. Mr Peter Boyle and his wife, Mrs Ann-Marie Boyle, are the defendants. Mr Yeing suffered loss in the amount of $225,691.77.
2 Mr Yeing's farm adjoined two properties on which Mr Boyle had planted crops, Cornhill and Ambleside. Mr Boyle was also farming on other properties, including Humphrey's Dam and George's, but these properties did not adjoin Mr Yeing's land. Cornhill and Ambleside were separated from Mr Yeing's farm by a dirt track, approximately 8 m wide, a fire break along the border of Cornhill and Ambleside of approximately 2.9 m and a firebreak on Mr Yeing's side of the track of approximately 2.1 m. This made a total firebreak of about 13 m. 3 Monday, 18 May 2009 was a sunny autumn day with temperatures in the early morning being around 8.5 degrees Celsius and rising to about 23 degrees Celsius in the afternoon. The Australian Government Bureau of Meteorology had issued a high fire danger warning for the Avon district for that day. Mr Boyle admitted that he had been aware of the fire warning. However, because it was autumn, Mr Boyle was not required to obtain a permit before conducting the prescribed burn on his farming properties and was not obliged to advise the owners of neighbouring properties of his intention to conduct a burn. 4 Farmers regularly carry out stubble burns to facilitate the subsequent seeding operation. The burning removes dead stubble and also grass that has grown in between. Mr Boyle was very experienced in conducting prescribed stubble burns. He had been farming for some 45 years and had conducted hundreds of prescribed burns. At the time he had been the Chief Bush Fire Control Officer appointed by the Shire of York for approximately 20 years. This was a voluntary position which required taking responsibility for controlling any bush fires within the shire and directing the firefighting operations. 5 On that day Mr Boyle carried out prescribed burns on Humphrey's Dam, Ambleside, Cornhill and George's; in that order. The four farming properties comprised approximately 220 ha of arable land. No specific evidence was led on the length of the boundary between Mr Yeing's land on the one side and Cornhill and Ambleside on the other. However the aerial photograph of the adjoining properties provided by Landgate indicates a scale. Counsel for both parties agreed that the scale shows that the boundary between the parties' land where the prescribed burn had been carried out was approximately 1 km long. 6 Mr Boyle had employed his son, Mr Guydon Boyle, and a backpacker from Ireland, Mr Peter Carroll, to assist him with the prescribed burn on that day. Mr Carroll did not have any experience in conducting prescribed burns prior to arriving in Australia, but had been employed by Mr Boyle since the middle of March 2009 and had conducted a number of stubble burns on Mr Boyle's properties together with Mr Boyle or other farm workers. 7 Mr Boyle and his two employees started the prescribed burn at about 9.30 am at Humphrey's Dam and moved to Ambleside at about 11.00 am and to Cornhill at approximately 12.45 pm. Having completed the burn-off at Cornhill at approximately 2.30 pm, Mr Boyle drove along part of the perimeter of the burned area on Ambleside, including the stretch where it adjoined Mr Yeing's property. He instructed his son and Mr Carroll to drive around the full perimeter of the burned area on Cornhill. The three men then met and discussed that it appeared that all burning material had been put out, save for some smouldering material on Cornhill and a burning tree on Ambleside which were all more than a kilometre away from the border with Mr Yeing's property and would not pose any risk of fire escaping. 8 Mr Boyle nevertheless instructed Mr Carroll to remain at Cornhill and Ambleside for an hour, to patrol the area of the burn and to ensure that nothing was still alight which could spread further. Mr Boyle left Cornhill at approximately 2.45 pm to conduct the prescribed burn at George's and his son left to attend to other farming duties. Mr Carroll joined Mr Boyle shortly after 4.00 pm at George's, having come to the conclusion that the fires on Ambleside and Cornhill were completely out. 9 The defendants accept that soon after Mr Carroll's departure a burning ember must have been carried by a breeze from either Cornhill or Ambleside to Mr Yeing's property, as the dry stubble on his land started burning and the fire engulfed his two tractors and a spreader. This machinery had been parked approximately 30 m from the track running between the parties' properties and approximately 50 m south-east from the boundary between Cornhill and Ambleside. 10 Mr Yeing was working a second job at the time in Kwinana, a suburb south of Perth. He was driving home to his farm when he received a phone call from Mr Alan Sprong, who was living in the farmhouse on Ambleside at the time. Mr Sprong is now deceased. Mr Sprong told Mr Yeing at about 4.50 pm that his farm machinery was alight. Mr Yeing immediately contacted Mr Boyle who agreed to check on the tractors. Mr Boyle could not see the position of the farm machinery from George's, as it was approximately 6 km by road away from Cornhill. Mr Boyle returned a call to Mr Yeing approximately 15 minutes later and told him that the tractors were on fire and could not be saved. 11 Mr Yeing conceded that even if he had been told beforehand of the planned prescribed burn, he would not have considered it necessary to move his tractors.
Issue in dispute 12 The only issue in dispute between the parties is whether Mr Boyle and his employees took reasonable precautions against the risk of fire escaping from his farming properties during or after the prescribed burn and causing damage to Mr Yeing's property. The defendants do not dispute that they owed a duty of care to take such precautions nor that the risk of causing damage by fire to Mr Yeing's property was foreseeable and not insignificant. They admit that the loss of the tractors was caused by a glowing ember being carried by the breeze from Cornhill or Ambleside and igniting a fire in Mr Yeing's stubble land. It is also admitted and that Mr Boyle is vicariously responsible for any conduct by his son or Mr Carroll, who were his employees.
The evidence of Mr Boyle, his son and Mr Carroll 13 Mr Boyle gave evidence that while he was driving over the properties that were burned that day and set the fire with a drip torch, his son and Mr Carroll were following in two separate vehicles, each equipped with a water tank and a hose. Their duty was to extinguish any stubble that remained smouldering in a 20 m zone all along the border of the properties and to wet the area around any tree or electricity pole. This process was known as 'mopping-up' and required the person responsible to get out of the vehicle from time to time to inspect trees near the border or to rake out compacted material which might still be smouldering. 14 Mr Boyle said once the process of 'mopping-up' had been completed, he drove around most of the perimeter of Ambleside while his son and Mr Carroll drove around the perimeter of Cornhill to make sure that no further mopping-up was required along the 20 m border zone. This took approximately 15 minutes. Mr Boyle agreed that it was his duty, as the most experienced person on site, to have made the decision whether the burn was safe and could be left. 15 Mr Boyle admitted that at the time when the decision was made that the burn on Ambleside and Cornhill was safe and he left for George's, there was possibly still smouldering material in header trails further into Cornhill, beyond the 20 m mopping-up zone, and that smoke may have been coming from the header trails. He explained that he and his employees had set fire to the lower part of Cornhill, closer to Mr Yeing's property first, and if there was still smouldering material, it would have been in the upper half of Cornhill which was half to a three-quarter kilometre away from the track between the parties' properties. Mr Boyle gave evidence that there was also a fallen tree in the middle of Ambleside, near the gate to Cornhill, which was still burning when he left. 16 Mr Boyle stated that despite this situation he came to the conclusion that the fire on both Ambleside and Cornhill was safe and that there was no risk of any fire escaping from the smouldering material, because the 20 m buffer zone had been totally burned out. Nevertheless, as an additional precaution, and because there was a slight risk of a flare-up, he instructed Mr Carroll to remain and continue to patrol the two properties for another hour. 17 Mr Boyle gave evidence that he estimated one hour to be a reasonable period for the additional patrol and did not consider it necessary to tell Mr Carroll to stay until dusk. He agreed that glowing embers might sometimes be hard to detect in daylight, but said that they were likely to produce smoke and that the smoke would be visible. Mr Boyle reported that he had never stayed until dusk after conducting a burn-off and had never had a problem with fire escaping in the past. 18 Asked whether Mr Carroll should not have been instructed to stay until dusk, Mr Boyle replied that they had wet the area around the trees before and after the burn. Mr Boyle was not specifically asked, either in evidence-in-chief or in cross-examination about any precautions taken to extinguish smouldering twigs in the crown of trees which might be fanned into life by a breeze. 19 Mr Boyle gave evidence that before he left he instructed Mr Carroll to drive around the borders of the two farming properties and check the trees and electricity poles. Mr Boyle admitted that he did not give any specific advice to Mr Carroll on how and where to look for hidden embers or to focus on the area close to the boundary with Mr Yeing's land. However, Mr Boyle said Mr Carroll had been doing that all day and he was confident that Mr Carroll had learnt what the required procedures were when he had assisted Mr Boyle or his sons in conducting burn-offs on previous occasions during his two months' employment on their farm. 20 Mr Boyle said Mr Carroll had been trained in the past to look for glowing embers in the header trails where stubble knocked down by the header, straw waste and husks may have compacted. Mr Carroll was also told during earlier burn-offs to get out of the vehicle and put out any burning sticks. Mr Boyle stated that his impression was that Mr Carroll was a very capable worker who had learned quickly and understood the procedures and practices employed on their farm. 21 Mr Guydon Boyle also gave evidence that Mr Carroll had been a competent and conscientious worker. Mr Boyle said he had taught Mr Carroll about the procedures they employed during a burn-off, such as that a buffer zone had to be developed, trees had to be wet down and the area had to be completely blacked out before it was left. 22 Mr Guydon Boyle said he and his father were confident that it was safe to leave Ambleside and Cornhill. They nevertheless told Mr Carroll to stay to make sure that there were no further flare ups and to remain until it was safe to leave. 23 Mr Peter Boyle denied during cross-examination that he had left the important decision whether it was safe to finally leave Cornhill and Ambleside to Mr Carroll who was untrained and inexperienced. Mr Boyle said he had already made the decision earlier that it was safe to leave the properties, but had asked Mr Carroll to stay as an additional precaution. 24 Mr Boyle gave evidence that the wind had been very mild in the morning and by the time they started on Ambleside and later on Cornhill the breeze had only marginally increased. He thought that it would not have been blowing more than 8 km per hour. However, measurements taken by the Australian Government Bureau of Meteorology at the weather station at York, 6 km from Ambleside and Cornhill, showed that the wind speed had increased to 19 km per hour by 3.00 pm on that day. Mr Boyle admitted that he knew that the wind was coming from the North West and blowing in the direction of Mr Yeing's property. He also agreed that there were a significant number of trees on Ambleside and Cornhill in close proximity to where Mr Yeing's machinery had been parked. 25 Mr Boyle gave evidence that when he commenced the burn-off at George's at about 3.00 pm the temperature started to drop rapidly and there was a dampness in the air. He had some difficulty keeping the fire going at George's. However, the measurements taken at the weather station in York show that the temperature was still 23 degrees Celsius at 3.00 pm and the humidity had not increased, but decreased to 38% in comparison to the reading of 66% at 9.00 am. 26 Mr Boyle was of the view that the fact that Mr Sprong's daughter had observed white smoke coming from either Ambleside or Cornhill when she and her father drove down the track between the parties' properties sometime in the afternoon of that day, did not mean much. Ms Sprong could not say exactly what time it was when she saw the smoke and although she gave evidence that she could not see any vehicles or persons nearby, Mr Boyle said this did not mean that he and his employees were not still around. He explained that one could only see approximately a quarter of the land on Cornhill and Ambleside while driving down the track. 27 Mr Carroll gave evidence that after they had mopped-up Ambleside and Cornhill Mr Boyle asked him to stay behind to make sure that the fire was extinguished and to dampen down tree trunks and electricity poles. Mr Carroll said he was not specifically asked to stay for one hour, but to remain behind as long as it took for him to be satisfied that the fire would not spread. 28 Mr Carroll stated that he had not noticed the tractors in the neighbour's property at that time. He was aware that there was a track between the parties' properties as well as a firebreak on either side and he did not consider it necessary to look beyond that track, as it was too far away. He said he did take note of the wind at that time, but could not recall the direction of the wind. He gave evidence that he had not noticed any change in the wind speed since that morning when he thought there had been a 'bit of a breeze'.
The expert evidence 29 Mr Tong, a fire investigator gave evidence on behalf of Mr Yeing. He had come to the conclusion that the fire had come from Mr Boyle's properties, but Mr Tong's reports were not tendered as this issue was admitted by Mr and Mrs Boyle. Mr Tong expressed the view in evidence that more than one burning ember must have blown across to Mr Yeing's property. He said his opinion was based on the fact that photographs taken of Mr Yeing's farm on the day after the fire show a strip of stubble and grass that remained standing underneath a fence a short distance to the west of the tractors, whereas the land on either side of the fence was burnt out by the fire. He said his conclusion that the fire had crossed in more than one location was also supported by his experience of general fire behaviour, in that it was usual for more than one ember to be blown across once one ember had flared up and had been carried across by the wind. Mr Tong admitted that it was possible that one ember had been taken by the wind and had split into two. 30 Mr Tong conceded that it was also possible that the strength of the wind had varied slightly at Ambleside and Cornhill in comparison to the conditions observed at the weather station in York. He said hills and valleys could spread the wind, but having regard to the topography at Ambleside and Cornhill, this was unlikely to have occurred. The land on Ambleside and Cornhill was sloping fairly evenly upwards from the track between the parties' properties in a north-westerly direction, which was the same direction from which the wind was blowing. At the spot where the tractors were standing there was nothing which provided a barrier to the wind. 31 In addition to Mr Tong's evidence the parties each relied on an expert on bush fire management and control. There was no dispute between the parties that each expert was properly qualified and experienced to give his opinion. 32 Mr Roger Underwood, who gave evidence for Mr Yeing, and Mr Bill Harris, who gave evidence for Mr Boyle, agreed that there was no reason why the prescribed burn should not have been undertaken on that day. The maximum temperature of 23 degrees Celsius was acceptable and the fact that the fire danger was high did not mean that the prescribed burn should not have been conducted. Mr Underwood conceded that even if the wind had increased to 19 km per hour by about 3.00pm as measured by the Australian Government Bureau of Meteorology at the weather station at York that would still have been manageable if the correct precautions had been undertaken. 33 There was also agreement between Mr Underwood and Mr Harris that Mr Boyle had more than adequate equipment to control any escaping fire. Mr Guydon Boyle was driving an ex-Victorian fire truck, fitted with a 3,500 litre water tank, which was full and could be operated from the cabin while driving. Mr Carroll drove a Toyota Land Cruiser utility with an 800 litre water tank, which was also full. Both vehicles were fitted with two-way radios and each of Mr Boyle and his two assistants had a mobile phone. 34 The disputed issues between the experts were whether a competent and experienced farmer would have taken extra precautions because the wind was blowing from the north-west, which was in the direction from Cornhill and Ambleside towards Mr Yeing's farmland, and had increased towards the early afternoon. The experts also disagreed as to whether the steps taken by Mr Carroll with respect to the patrol of the boundary between the parties' properties after the burn-off, and Mr Boyle's instructions to Mr Carroll in this regard, had met the industry standard of what a reasonably competent and experienced farmer would have done. 35 Mr Underwood gave evidence that the increase in the wind and the fact that it was blowing in the direction of Mr Yeing's property would have alerted a competent and experienced farmer to the need for being extra careful in monitoring the potential escape of burning embers from smouldering stubble or burning material in the crown of or underneath trees. This was particularly so as valuable farm machinery was located on Mr Yeing's land just across the border in full view from Cornhill and Ambleside. 36 Mr Underwood was not asked whether it was reasonable to assume that the wind strength was very similar at Ambleside and Cornhill to the prevailing conditions at the weather station in York. He simply relied on the assumption that the wind had freshened during the afternoon and was blowing from the north-west. 37 Mr Underwood was of the view that because of the increase in the wind and its direction the person patrolling the burn-off area near the boundary with Dr Yeing's land should have done so until dusk when fine plumes of smoke or glowing embers would have been more readily visible. Mr Underwood explained that smouldering material generates fine smoke, which was likely to have been white, if it came from stubble. Mr Underwood stated that the stubble in header trails was more compacted and therefore usually damper than the other stalks and was likely to smoulder on after the initial fire had passed over the land. He said this smouldering material was often re-ignited by a gust of fresh wind and burning straw fragments became light floating embers. 38 Mr Underwood gave evidence that immediately after the fire a process of mopping-up should occur. This required checking a strip of approximately 20 m on the ground and 100 m in the air (ie, crowns of trees) for any burning material and saturating it with water. He stated that mopping up was notoriously difficult to do and that one could easily miss smouldering material. 39 Mr Underwood explained that even after a 20 m zone all along the border had been 'mopped-up' a patrol person should still stay until dusk to make sure that no smouldering stubble or tree material was ignited by the breeze and blown onto neighbouring land if that was a risk area for a fire igniting. The patrol person should inspect the 20 m strip all along the border on foot or in a slow-moving vehicle. 40 Mr Underwood noted that there were a number of trees close to the boundary between the parties' properties which created an increased risk of a smouldering twig being carried by a breeze onto Mr Yeing's farm. Mr Underwood was of the view that the presence of the numerous trees required that patrolling be continued until dusk as it was often only then that glowing twigs burning in the tree crowns could be observed. The burning twigs would not be visible against a blue sky, but only against a dark sky. Mr Underwood stated that he had observed this phenomenon dozens and dozens of times. He explained that all trees within 100 m from the border should have been checked regularly. 41 Mr Underwood also considered the extensive boundary between the parties' adjoining properties to be an additional risk, as this would have made it difficult for one person to inspect the 20 m zone along this border within one hour. He stated that the presence of a general smoke haze from the paddocks would also have made it more difficult to detect fresh smoke from smouldering stubble. 42 Mr Underwood was of the view that it was the responsibility of the person in charge of the burn, who should have been experienced and competent in doing burn-offs, to do a final inspection of the border zone and declare the burn 'safe'. A burn was 'safe' when it had been mopped-up and patrolled for as long as necessary. 43 I accept the evidence of Mr Underwood, as there is no reason not to. He answered questions in a straightforward manner and was prepared to make concessions. His opinions were not seriously challenged in cross-examination. It was not put to him that the standard of having a patrol continue until dusk was too high and did not accord with the usual practices of the average competent and experienced farmer. It was also not put to Mr Underwood that smouldering twigs in trees could not be a problem if the trunk of a tree had been wet or the tree was standing on a track with bare ground on either side. 44 Mr Underwood admitted in cross-examination that it would have been acceptable for Mr Boyle, as the most experienced man on site, to have left Cornhill and Ambleside if he had been of the view that there was no longer a likelihood of fire escaping and he had declared the burn safe. Counsel for the defence placed considerable reliance on this admission. However, this answer still begs the question of whether it was reasonable for Mr Boyle to have declared the burn safe. Mr Underwood in any event later qualified his answer by saying that a responsible person should not have declared the burn safe if all burning twigs in the trees had not been checked. Further, a burn should only be declared safe if an experienced person had come to the conclusion that the mopping-up and subsequent patrolling had occurred to the necessary degree. Mr Underwood made the point that even experienced and capable people sometimes make mistakes. 45 Mr Underwood also agreed in cross-examination that if the person in charge was of the view that an employee could be trusted, it was not necessary for the person in charge to tell the employee to inspect all trees within 100 m of the border. 46 Mr Harris, the expert who gave evidence for Mr and Mrs Boyle, had a slightly different understanding of when a burn could be declared safe. His opinion was that a burn could be declared safe as soon as the required mopping-up had been done on a 20 m zone from the border and in respect of all trees within 100 m of the border and there were no visible signs of smouldering. It was then a judgement call for the person in charge whether further patrolling of the border area should be undertaken and for what period of time. He said the same factors that were relevant to deciding whether a burn could be declared safe also determined whether further patrolling should have been undertaken. These were factors such as the size of the fire, the type of material that had been burned, the weather conditions at the time and the risks on adjoining properties. 47 Mr Harris agreed with Mr Underwood that the required standard for mopping-up was to completely blacken out a 20 m zone along the border, make sure that no smouldering material was left in that area and no smouldering material in or under trees within 100 m of the border. However, Mr Harris was of the view that as soon as those steps had been done, it was reasonable to declare a burn safe, while Mr Underwood was of the opinion that it should only be declared safe when the necessary patrolling had also been completed. 48 Mr Harris acknowledged that even when the mopping-up had been carried out by experienced personnel with great care, it was always possible that some smouldering material had been missed and not properly extinguished. He agreed that smouldering material that had been missed in the mopping-up zone or located further into the burned area could easily be made to flare up by a sudden gust of wind. However, Mr Harris seemed to be of the view, as expressed in his report, that a competent and experienced farmer who had carried out the mopping-up operation in terms of the required industry standard could not be blamed for fire escaping under those circumstances. 49 Mr Harris kept coming back in his evidence to the conclusion that because Mr Boyle had been a very experienced farmer and had been placed in a responsible position of leadership as the chief fire control officer of the Shire of York, his decision that the fire was safe would have accorded with industry practice. He said it was a judgment call and implied that Mr Boyle was likely to have made the right call because of his experience and position as chief fire control officer for the shire. 50 Mr Harris acknowledged that it was good practice to still carry on some patrolling after the burn had been declared safe because trees or other smouldering material might flare up later. This problem was not limited to material located in the 20 m buffer zone, but could also occur in areas further away from the border from where glowing embers could be carried by the wind for more than 20 m. Mr Harris agreed that the risk of material beyond the 20 m zone flaring up and being carried for more than 20 m was a matter that should be considered before the burn was declared safe and again when the need for patrolling was determined. 51 Mr Harris admitted that it would be helpful to extend the patrolling until dusk, as it was difficult to detect glowing embers in daylight. But he said it was not necessary to do patrolling until dusk with regard to every burn off. If the burn off had been declared safe at 10.00 am, it was certainly not necessary to patrol it until dusk. 52 Mr Harris acknowledged that the presence of trees was also a relevant factor and that glowing twigs would be more difficult to see in the crown of trees or in fallen branches. However, Mr Harris expressed the view that if the breeze was only light and the fire had been applied to crop stubble, in contrast to a forest burn, a patrol period of one hour was reasonable in terms of industry practice. 53 Mr Harris gave evidence that if Mr Boyle had estimated the wind as being only 8 km per hour that was probably correct, as farmers and experienced firefighting officers were to his knowledge quite reliable in the estimation of the wind speed and direction. Mr Harris said it was possible that there had been a difference between the wind speed measured at the weather station in York and the wind prevalent at the southern border of Ambleside and Cornhill, as this was at the bottom of a valley, even though it was not a sharp valley. 54 Mr Harris was of the view that it was not necessary for the patrol person to have any particular qualifications or experience. He acknowledged that this person was expected to look for sparks in trees and burning embers in the material remaining on the land. Mr Harris agreed that the patrolman should have carefully inspected every tree within 100 m of the border for burning material in or under the tree. 55 Mr Harris expressed the opinion that if Mr Carroll had been trained on how to mop-up and patrol stubble burns over a period of two months while working on Mr Boyle's farm, and if Mr Boyle had considered him to be a capable worker, there was no reason why Mr Carroll could not have met the standard of a capable patrol person. However, Mr Harris agreed that Mr Carroll should have been instructed on that day to carefully inspect every tree within 100 m of the border for burning material in or under the tree, unless it could reasonably be assumed that he would do that in any event by reason of his earlier training and instructions. 56 I have some difficulty in accepting Mr Harris' evidence, because it was based on assumptions that were not brought out by the evidence. Mr Harris' evidence was premised on the assumption that Mr Boyle's estimate of the wind speed at 8 km per hour was correct and that Mr Boyle was likely to have made a correct assessment that the burned areas were safe before leaving Cornhill and Ambleside, because of his experience and position as the chief fire control officer. I accept that Mr Boyle was very experienced, not only as a farmer, but also in controlling bush fires, but even very experienced people sometimes make mistakes, assess the circumstances incorrectly or become complacent. 57 Mr Harris also assumed that Mr Carroll had received adequate training on Mr Boyle's farm and would have known exactly what to do on the day in order to prevent an ember or twig flaring up and blowing over to Mr Yeing's land. 58 Mr Harris' evidence therefore needs to be carefully assessed on the basis that it was premised on these assumptions.
Did Mr Boyle and his employees take reasonable precautions? 59 The parties agreed that Mr and Mrs Boyle owed a duty of care to Mr Yeing to take all reasonable precautions to ensure that the fire did not escape onto his land and damage his property. It was agreed that the risk of this happening was foreseeable and not insignificant. The parties were also in agreement that in deciding whether reasonable precautions were taken by Mr and Mrs Boyle the court was to consider the factors listed in s 5B(2) of the Civil Liability Act 2002 (WA). This section provides as follows: 5B(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) – (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 60 The risk of harm was clearly the risk of the fire escaping to Mr Yeing's property during or after the prescribed burn and causing damage to his property. 61 As regards the probability that harm would occur if care was not taken and the likely seriousness of the harm, counsel for Mr Yeing did not specifically rely on the fact that Mr Boyle had created the risk on his farming properties and that he was conducting a dangerous activity on Cornhill and Ambleside. Since Burnie Port Authority v General Jones Pty Ltd(1992) 179 CLR 520 it has been accepted that there is no longer a special rule relating to an occupier's liability for damage caused by the escape of fire from his or her premises. Instead, the usual common law standard for negligence, namely whether the occupier took all reasonable care in the circumstances to prevent the escape of fire, applies. However, where a dangerous activity is involved, a reasonably prudent person would exercise a higher degree of care and, depending upon the magnitude of the danger, the standard of 'reasonable care' may be so stringent as to amount practically to a guarantee of safety: Burnie Port Authority 554; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management[2012] WASCA 79 [83] (McLure P). 62 In Southern Properties[236] - [237] Pullin JA came to the conclusion that the factors listed in s 5B(2) of the Civil Liability Act were in effect a statutory statement, with minor adjustments, of the 'Shirtcalculus'. The Shirt calculus refers to the four factors which were held by Mason J in Wyong Shire Council v Shirt(1980) 146 CLR 40, 47 (Mason J) to be matters that should be considered in common law in deciding what steps a reasonable person would have taken to guard against a particular risk of harm. 63 Pullin JA stated that the considerations in s 5B(2)(a) and s 5B(2)(b) had to be weighed against the considerations referred to in s 5B(2)(c) and s 5B(2)(d.) His Honour held that the higher the probability that harm would occur and the more serious the harm, the more likely it would be that those factors would outweigh the other factors, and the more likely that the determination would be that a reasonable person would have taken precautions. Pullin JA was in the minority in Southern Propertiesregarding whether the defendant in that case owed a duty of care, but this does not detract from his findings regarding s 5B(2). 64 I accept that the applicable test for whether a breach of duty occurred is the one outlined in s 5B(2). However, the fact that Mr Boyle was conducting a dangerous activity, namely that of lighting fire to dry stubble land on his farming properties, meant that the probability that harm would occur if care was not taken was high. Both experts on bushfire control acknowledged that even after a prescribed fire had died down, smouldering material in header trails or trees could readily be ignited by a gust of wind and carried over a distance to neighbouring properties. Both experts agreed that mopping-up was notoriously difficult to do in that it was easy to miss smouldering material hidden in header trails or trees. Mr Yeing's land was close by and also covered in dry stubble which made it highly flammable. All of this called for a high standard of care, as the probability that harm would occur was high if the appropriate care was not taken. 65 The seriousness of the harm was also considerable, in that an escape of fire was likely to have caused damage to expensive farm machinery and possibly other property located on Mr Yeing's farm. Mr Boyle acknowledged that he had seen the tractors and spreader standing nearby on Mr Yeing's property and as a farmer he would have known that this equipment was expensive. 66 The next question is what the burden of taking precautions to avoid the risk of harm entailed. This burden obviously included a proper mopping-up operation being conducted and the application of a patrol period long enough to ensure that there was no, or minimal risk, of hidden embers or glowing twigs being ignited by a wind and carried onto Mr Yeing's property. 67 There was no dispute between the experts that the day was suitable for a prescribed burn, that it had been carried out safely and that an adequate mopping-up operation had occurred. The real issue in this case was whether having regard to the relevant circumstances the patrol period was sufficiently long and the person carrying out the patrol knowledgeable and experienced enough, or adequately instructed, to have carried out the patrol to the required standard. 68 In assessing the extent of the burden on a defendant of taking precautions, the court should take into account the expense, difficulty and inconvenience of taking alleviating action. This was how the third factor relevant to 'the burden of taking precautions' was formulated in the Shirt calculus. The expense of requesting Mr Carroll to have stayed until dusk was clearly minimal, particularly in comparison to the risk of damage to Mr Yeing's property. Mr Boyle could also have asked his son to have remained with Mr Carroll and to have assisted him in patrolling Cornhill and Ambleside. 69 It seems that Mr Guydon Boyle left Cornhill as soon as this had been mopped-up by him and Mr Carroll and attended to other duties on his farm which involved some spraying of crops. Again, the costs of requiring Mr Guydon Boyle to stay for another 2½ - 3 hours would have been relatively minimal. It was obviously inconvenient for Mr Guydon Boyle to have stayed until dusk, as he had other tasks to attend to, but the cost and inconvenience of taking additional precautions must be weighed against the probability of embers or twigs flaring up and being blown onto Mr Yeing's land by the wind. 70 Counsel for the Mr Boyle submitted that the court did not have to concern itself with the fourth factor listed in s 5B(2)(c), as there was no general social utility in the prescribed burns undertaken on Cornhill and Ambleside. The burn-off was simply done to facilitate the farming operations conducted by Mr Boyle and his wife. 71 The essential question is whether, taking into account the four factors listed in s 5B(2) and the relevant circumstances pertaining at that time, a reasonable person in Mr Boyle's position would have taken additional precautions to those that Mr Boyle took. 72 Counsel for Mr Boyle referred the court to decisions such as Vairy v Wyong Shire Council(2005) 223 CLR 422 [105] (Hayne J) and Roads and Traffic Authority of NSW v Dederer(2007) 234 CLR 330 [65] (Gummow J) in which it was held that the determination as to whether the defendant had taken reasonable precautions was not to be undertaken by looking back at what had in fact happened, but by looking forward from a time before the occurrence of the loss. I accept that the determination is to be made in light of the circumstances that a reasonable person would have been aware of at the time when the prescribed burn was conducted and not with hindsight. 73 The determination of what precautions a reasonable person would have taken is a matter to be determined objectively. The state of mind of the defendant is not relevant to this enquiry: Waverley Council v Ferreira(2005) Aust Tort Reports 81-818, [52]. 74 Mr Underwood expressed the opinion that the freshening of the wind in the afternoon and the proximity of a number of trees to Mr Yeing's land and his tractors constituted elevated risk factors. 75 Mr Harris did not believe that the wind was an additional risk factor. However his opinion was based on the assumption that Mr Boyle was correct when he estimated the strength of the wind as 8 km per hour when he left for George's. Mr Harris said it was possible that there could have been a difference between the wind at the bottom of the slight valley and the wind measured at the York weather station. When asked whether it was unlikely that the difference in wind speed would have been significant, Mr Harris replied that he relied on Mr Boyle's experience in estimating wind strength. 76 I accept that there may have been a slight variation between the wind speed of 19 km per hour as measured at the weather station in York and the prevalent wind at the southern border of Ambleside and Cornhill, because the photographs show that this is at the bottom of slightly undulating countryside. However, it is unlikely that the difference was as much as 11 km per hour, as Mr Boyle suggested. Mr Boyle also gave evidence that the higher lying paddock of Cornhill, away from the boundary between the parties' properties, was burned last. The photographs and satellite images show that this area was further to the top of the undulating countryside. Even if it is accepted that the wind may have been less at the bottom of the slight valley where the boundary to Mr Yeing's land was, Mr Boyle and his employees would have felt the strength of the wind when doing the last mopping-up operation further up the undulating country on Cornhill and Ambleside. If they did not get out of their vehicles to feel the wind, they should at least have done so. 77 I am not confident that Mr Boyle's estimate or recollection of the speed of the wind can be relied upon and it is likely that his estimate has been influenced, even if only subconsciously, by him having been blamed for the fire. The main reason why I do not regard Mr Boyle's estimate of the wind speed as reliable, is because he also gave evidence that the temperature had dropped and that a dampness had crept into the air by the time that he set fire to George's. The recordings at the weather station in York indicate that the temperature was 23 degrees Celsius at 3.00 pm and that the humidity had substantially decreased, not increased, since the readings taken that morning. Mr Boyle said that he left for George's paddock at about 2.45 pm and that it only took him about 5 minutes to get there. This means that his estimate of the temperature and humidity at that time must have been wrong or incorrectly recollected. 78 Mr Guydon Boyle described the wind as a light breeze and Mr Carroll said in evidence that there was 'a bit of a breeze' on that day. Both these men therefore recognised that there was a breeze. Ms Sprong gave evidence that she had already observed trees blowing when she sat on the verandah of the farmhouse overlooking Ambleside and Cornhill during late morning of that day. 79 I find that the readings taken at the York weather station can be relied upon, at the very least, to indicate that the wind had changed that day from calm in the morning to an increased speed approaching 19 km per hour. It should have been obvious to Mr Boyle and his employees that by 2.45 pm the wind had picked up considerably. 80 The photographs and satellite images show that there is a long line of trees separating Cornhill from Ambleside with a narrow track to the east of these trees and what appears to be a firebreak to the west of the trees. In addition the is a large tree, described by Mr Underwood as 'a mature wandoo tree, probably more than 50 years old', on the south east corner of Cornhill within a few metres of the track separating Cornhill from Mr Yeing's land. There was no evidence about the exact distance of this tree from the land on which the tractors were parked, but judging by the width of the boundary track, which was stated to have been about 13 m, the distance must have been about 20 m to Mr Yeing's land on the west side of his fence and around 30 m to the land on the east side of Mr Yeing's fence where the tractors were standing. The photographs also show a line of trees running along the boundary track on the side of Cornhill and Ambleside, although the trees appear to be on some strip next to the track and not inside the paddocks that were burnt. 81 Mr Underwood referred in his report to 'paddock trees within the burn area' and the large wandoo tree as creating a magnified risk. He particularly spoke about the risk of a smouldering twig remaining after the burn and this being ignited by a gust of wind and carried across to the neighbour's property. 82 After both counsel had completed their addresses in closing, counsel for Mr Boyle asked to say something in reply and suggested that the trees along the boundary between Cornhill and Ambleside could not have presented any problem because there was a track on one side and a firebreak on the other side of this strip of trees. At no time was it put to Mr Underwood that only trees inside the burned area could have presented a problem for the later flaring up of smouldering twigs and that the trees along the boundary between Cornhill and Ambleside were of no concern. Mr Underwood clearly expressed his view during his evidence that it was not only material lying under a tree but also burning twigs in the crown of trees which could flare up and result in embers being carried onto the neighbouring property. At no stage was it suggested to Mr Underwood by counsel for Mr and Mrs Boyle that twigs in the crown of trees could not be set alight unless the base of the tree was standing within a burned area. 83 I do not accept the submission that the line of trees between Cornhill and Ambleside could not have presented a problem. Mr Underwood clearly referred to this line of trees in his evidence. In any event, even if this line of trees is discounted as a potential problem, the large wandoo tree was standing inside the south-east corner of the burned area on Cornhill and closer to Mr Yeing's land. There were also other trees along the boundary track between Ambleside and Mr Yeing's land and a line of trees on the eastern side of the burned area on Ambleside. These trees were pointed out to Mr Boyle in cross-examination and it was put to him that they were in close proximity to Mr Yeing's land. Mr Boyle did not indicate that they were not a concern when it came to patrolling the burn. 84 Mr Harris also acknowledged that glowing twigs in the crowns of trees could be a problem. 85 Accordingly, I find that the substantial number of trees in the burned off areas or close to those areas and within 100 m of Mr Yeing's land posed an additional risk, because sparks from the fire could have landed in those trees and smouldering twigs could have been ignited later and blown onto Mr Yeing's land. 86 Mr Underwood also expressed the view that the patrolman had a big job with several kilometres of border to patrol. I accept that the boundary between Cornhill and Ambleside and Mr Yeing's property was only approximately 1 km. Nevertheless, this was a substantial distance for one person to patrol, if that person had to check for smouldering material in the 20 m mop-up zone along that border and every tree within 100 m of that border. 87 Taking into account the circumstances which posed an elevated risk, the question is whether the patrol of one hour's duration and to be carried out by Mr Carroll was a sufficient precaution. Mr Boyle said that he instructed Mr Carroll to remain for one hour and to then join him at George's, while Mr Carroll and Mr Guydon Boyle gave evidence that Mr Carroll was to remain until it was safe in his view to leave Cornhill and Ambleside. 88 Whether Mr Carroll was told to remain for one hour or until he thought it was safe to leave, does not make much difference. In both instances it was not an adequate precaution in light of the very real likelihood of a smouldering ember or burning twig having been missed during the mopping-up operation, the presence of a large number of trees within or near the burned areas and close to Mr Yeing's land and the fact that the wind had freshened by early afternoon and was blowing in the direction of Mr Yeing's dry stubble land and his expensive farm machinery. 89 I accept that Mr Carroll had performed a number of prescribed burns together with Mr Boyle or other farm employees and that he understood that it was necessary to look for smouldering embers that were hidden and to water the base of trees and electricity poles. However, Mr Carroll was not given any specific instructions on that day and the elevated risks were not pointed out to him. Mr Carroll had not even noticed the expensive farm machinery standing on Mr Yeing's land and it had not been pointed out to him that the wind was blowing in that direction and that Mr Yeing's dry stubble land was highly flammable. Mr Boyle might have reasoned that this was obvious, but it is apparent that Mr Carroll did not put his mind to the elevated risks as illustrated by his failure to notice the farm machinery and the dry stubble on Mr Yeing's land. 90 It is also doubtful whether Mr Carroll understood that he had to watch the crowns of the trees and look for glowing twigs. He only spoke in his evidence about being told to water the trunks of trees. He said his task was to make sure that nothing was still alight and could spread further. However he acknowledged that he had not been told to focus on the boundary with Mr Yeing's land. 91 Mr Carroll may have been experienced enough to conduct a mopping-up operation together with others but it is unlikely that he understood all the potential risks after having worked on an Australian farm for two months. He certainly did not realise how important it was to look for what was situated on the neighbouring properties. There is also no indication that he understood that he should check the crown of trees or that the direction of the wind posed an elevated risk. Mr Carroll said he could not recall what the direction of the wind was on that day, although he would have taken it into account. If he had been told specifically that the wind was blowing in the direction of Mr Yeing's property and that this made it very important to discover any embers or burning twigs near the boundary, he was likely to have remembered this. 92 Both experts agreed that it was the duty of the most senior person on site to make the assessment when it was safe to leave the burned areas. Mr Boyle left that decision to a young person, aged 23 years, who had only worked on Australian farms as a farmhand for two months. 93 Not much turns on the question whether a burn can be declared 'safe' after the mopping up operation or only after any necessary additional patrolling. It may be so that sometimes a burn can be declared 'safe' immediately after a mopping-up operation, because there is no wind or no risk posed by neighbouring properties or the nature of the burned material is such that it is unlikely that smouldering embers may remain hidden. However, in this case there were a number of factors which magnified the risk that hidden embers or twigs might flare up and ignite the neighbour's stubble land. In that situation it was not reasonable for the senior person in charge to depart from the burned area immediately after the mopping-up operation and to leave the task to detect latent problems to an inexperienced young person without giving him proper instructions and pointing out the elevated risks to him. 94 Although Mr and Mrs Boyle admitted that the fire was caused by a spark or ember from the remnants of the burn at Cornhill or Ambleside having been carried by the breeze to Mr Yeing's land, it is unknown whether this was a ember in the 20 m mopping-up zone or further into the paddocks or a twig in the crown of a tree. Both experts agreed that it was quite possible for an ember or twig originating from an area beyond the 20 m zone to be carried across to Mr Yeing's land. In fact, Mr Harris appeared to suggest that this was likely to have been the problem. 95 Mr Carroll said his job would have been to drive around the perimeter of the paddocks. I am not suggesting that he should have patrolled all of the burned areas. But Mr Boyle should have known that the risk also extended to areas beyond the mopped-up zone. There is no indication that these areas were closely looked at at any time. Mr Boyle gave evidence that it took him and his two employees approximately 15 minutes to drive around part of the perimeters of Cornhill and Ambleside as part of the mopping up-operation. This means that there was a very real risk that smouldering embers could have remained in header trails or in the crown of trees situated further away from the boundary with Mr Yeing's land. Under normal circumstances that situation may not have posed a risk. But on that day, there was a wind which had freshened to up to 19 km per hour and was blowing in the direction of Mr Ying's dry stubble land and his expensive tractors. This posed the additional risk of embers or glowing twigs beyond the 20 m zone being carried by the wind onto Mr Yeing's land. In light of these elevated risks a one hour patrol of the perimeter of Cornhill and Ambleside was also not sufficient. 96 It is obviously difficult to survey each inch of such large paddocks. Cornhill was said to have compromised approximately 100 ha and Ambleside about 80 ha of crop-growing land. But this is why Mr Underwood's view that under the prevailing circumstances the patrol person should have stayed until dusk, is compelling. Where it is very difficult to locate every burning ember or twig another way of dealing with the problem is to wait until they are more readily visible. Mr Underwood was also of the view that the risk of glowing embers or twigs becoming airborne was much less towards dusk when the temperature was likely to have dropped and the air to have become more humid. 97 Patrolling the burned areas until dusk would not have greatly increased the burden of taking precautions. Counsel for Mr and Mrs Boyle put to Mr Underwood in cross-examination that at that time of the year the sun went down at approximately 5.20 pm. Mr Carroll gave evidence that he left Cornhill and Ambleside at around 4.00 pm. If he had been instructed to stay until dusk, the patrol time would only have been extended by an hour and a half. 98 Mr Harris may have a valid point that it is not necessary to stay until dusk after every prescribed burn, but each situation needs to be assessed in light of the particular circumstances and any elevated risks. Even though Mr Boyle was a very experienced and highly regarded fire controller, he failed to properly assess the risks and put into place the necessary precautions on that day. As Mr Underwood said, even skilled and experienced people sometimes make mistakes, and it is common knowledge that mistakes are more readily made when one tries to squeeze too much into one day. 99 When the high probability of glowing embers or twigs having been missed together with the potential for the wind flaring up these embers and carrying them in the direction of Mr Yeing's property is taking into account together with the costs of the farm machinery and this is compared with the costs and inconvenience of requiring Mr Carroll to stay until dusk or Mr Guydon Boyle to remain with him, it is readily apparent that reasonable precautions were not taken. 100 Counsel for Mr Yeing relied on cases such asDoonan v Beacham(1953) 87 CLR 346, 351–352 and Westina Corporation Pty Ltd v BGC Contracting Pty Ltd [2009] WASCA 213 for the proposition that a plaintiff does not have to point to a single aspect of negligence or prove the exact manner in which the defendant was negligent, as long as the aspects of negligence relied upon fall within the limits of the particulars furnished by the plaintiff. I accept this proposition. 101 In this case Mr Boyle was negligent in one or more of the following respects: 1. he did not properly assess the elevated risks pertaining to the prescribed burn on Cornhill and Amberley on that day; 2. he did not adequately instruct Mr Carroll with regard to the elevated risks on that day; 3. he did not adequately instruct Mr Carroll on how to look for hidden embers and particularly burning twigs in the crown of trees; 4. he did not adequately instruct Mr Carroll on the need to focus on the boundary with Mr Yeing's land; 5. he failed to instruct Mr Carroll to patrol until dusk; 6. he failed to remain on Cornhill and Ambleside until dusk or to instruct Mr Guydon Boyle to assist Mr Carroll in patrolling the boundary to Mr Yeing's land until dusk. 102 These aspects of negligence are all raised in paragraph 12(e) of the amended statement of claim. 103 I am not able to make any finding on the evidence that Mr Carroll was negligent in the manner in which he carried out the patrol. It appears that he continued to follow the procedure of a mopping-up operation, as he had been shown on previous occasions. There is no evidence that he was given specific instructions to concentrate on glowing twigs in the crown of trees or to focus on the boundary with Mr Yeing's property. It was within Mr Boyle's sphere of responsibility to determine whether there were any elevated risks and whether they required a longer patrol period than may have been usual.
Causation 104 Although Mr and Mrs Boyle accepted that the fire was caused by a burning ember carried onto Mr Yeing's land by the breeze, it needs to be decided whether the particular harm, namely the damage to Mr Yeing's farm machinery, was caused by Mr Boyle's fault. Section 5C(1) of the Civil Liability Act 2002 (WA) deals with causation and provides as follows: 105 In Strong v Woolworth Ltd t/as Big W (2012) 86 ALJR 267 [18], [20] and [32] the plurality held in relation to s 5D(1)(a) of the Civil Liability Act 2002 (NSW), which is in similar terms (except for the word 'fault' being replaced by the word 'negligence') that the determination of factual causation under that section was a statutory statement of the common law 'but for' test of causation. In order to prove factual causation under the statute, the plaintiff had to prove, on a balance of probabilities, that the defendant's negligence was a necessary condition of the occurrence of the particular harm. Proof of the causal link between the omission and the occurrence required consideration of the probable course of events had the omission not occurred. 106 In Kuhl v Zurich Financial Services Australia Ltd(2011) 243 CLR 361 [45] (French CJ and Gummow J) reiterated that in common law proof of the causal link between an omission and an occurrence required that as a matter of evidence and inference it was more probable than not that the taking of precautions would have prevented or minimised the injuries (or in this case, the damage) that the plaintiff sustained. 107 In Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 [95], [96] Hoeben JA (with whom Beazley JA and Mcfarlan JA agreed) came to the conclusion that the same common law test for factual causation as referred to in Kuhlapplied to s 5D(1)(a) of the Civil Liability Act (NSW). It was therefore not necessary for the plaintiff to prove that the taking of precautions would have prevented the injury. It was sufficient if she proved that the taking of such action would have minimised the risk of injury. 108 The same conclusion was arrived at in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, [203] (Gleeson JA, Emmett JA and Tobias AJA agreeing). 109 Mr and Mrs Boyle accepted that it was likely that a glowing ember was carried by the wind onto Mr Yeing's property after Mr Carroll had left Cornhill and Ambleside at around 4.00 pm. It is also known that at approximately 4.50 pm in the afternoon, when Mr Yeing received the telephone call from Mr Sprong, the tractors were already ablaze. 110 The reality therefore is that if Mr Carroll, on Mr Boyle's instructions, had remained until dusk, it is probable that he would have noticed the glowing ember or burning twig blowing into Mr Yeing's land and would have been able to take steps to extinguish any fire that had started on Mr Yeing's property. He was driving a vehicle with an 800 litre water tank and had a mobile phone to contact Mr Boyle who was only 6 km away. The fact that Mr Carroll would have been able to stop a fire taking hold on Mr Yeing's land was not placed in issue by Mr and Mrs Boyle. 111 It is also probable that if Mr Carroll had been properly instructed on the elevated risks, what to look for and to concentrate on the boundary with Mr Yeing's property, he would have noticed smouldering material or a glowing twig before it was blown onto Mr Yeing's land. If Mr Guydon Boyle had remained to assist him with the patrolling that likelihood would have been increased. 112 Accordingly, I am satisfied that it has been proven that Mr Boyle's failure to take the necessary precautions was a necessary condition of the fire escaping and the damage to Mr Yeing's farm machinery. 113 As regards the test in s 5C(1)(b), is generally accepted that it is appropriate for the scope of the tortfeasor's liability to extend to the harm, where the harm manifests itself in property damage.
Conclusion 114 Mr Yeing has proven that Mr Boyle failed to take all reasonable precautions against the risk of fire escaping and damaging Mr Yeing's farm machinery. Mr Boyle's failure to take all reasonable precautions was a necessary condition of the occurrence of the damage to Mr Yeing's farm machinery. Accordingly Mr and Mrs Boyle are liable to pay the agreed amount of $225,691.77 in damages to Mr Yeing.
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