Nelson Forests Limited v Three Tuis Limited - [2013] NZHC 856

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2010-422-0000841

[2013] NZHC 856

UNDER Section 43 of the Forest and Rural Fires Act
1977

BETWEEN NELSON FORESTS LIMITED First Plaintiff

ANDNEW ZEALAND FIRE SERVICE COMMISSION
Second Plaintiff

ANDWAIMEA RURAL FIRE COMMITTEE Third Plaintiff

ANDTHREE TUIS LIMITED First Defendant

ANDSTEPHEN GARNETT Second Defendant

ANDTOWER INSURANCE LIMITED Third Party

Hearing: 15 - 17 April 2013

Counsel: P M Smith and S J O'Brien for First Plaintiff
B Scott and M On for Second and Third Plaintiffs
R Ord for Defendants

Judgment: 24 April 2013

JUDGMENT OF MILLER J

Judgment reissued under the slip rule (r 11.10 of the High Court Rules)

1 CIV-2010-442-000084 and CIV-2010-442-000396 consolidated. Minute 12 October 2010
Osborne AJ.

Introduction

[1] 2454 Tadmor-Glenhope Road is a picturesque rural property which adjoins the Kahurangi National Park south of Nelson. It is the home of the second defendant, Stephen Garnett, and his partner, Tracey Lynch, and the site of several tourist cabins which they built and run as a bed and breakfast business through their company, Three Tuis Ltd.2

[2] Guests of Three Tuis, Donna and Paul Maddocks, built a fire in the woodburner in their cabin on 24 November 2009, at about 3.30-4.00 pm. The afternoon was not cold, but Mr Maddocks was feeling unwell and the couple had decided to stay in that evening. They fed the fire, Mrs Maddocks replenishing the wood basket from a nearby woodshed, and last saw it burning when they went to bed about 1.00 am. At about 2.00 pm on 26 November, some 36 hours after they last saw fire in the woodburner, Mr Garnett dumped the ashes of their fire by a scrub- covered bank at the edge of a mown lawn surrounding the cabin.

[3] Two brothers, the Paynes, were working nearby with a logging crew on 26

November. At about 3.45 pm they smelt then saw smoke from the Three Tuis property, and on driving there to investigate, found that a “serious” fire had taken hold about the bank and woodshed. They alerted Mr Garnett, who was in the house, and the three men tried to fight the fire with the limited resources to hand, but it was obvious that, as Mr Garnett put it, all hope was gone. Driven by a strong breeze from the south and encouraged by dry conditions, the fire spread 4.7 kilometres to the north, destroying a large forest owned by a neighbour, Nelson Forests Ltd, before the intensive efforts of the second and third plaintiffs, whom I will call the Fire
Service, controlled it some hours later.3

[4] By that time the fire’s cause was already under investigation. Two fire
investigators had Mr Garnett identify where he had dumped the ashes. All four investigators called at trial now agree that the ashes caused the fire.

2 Three Tuis formerly owned the property, but the trustees of their family trusts now hold title.
3 I note that the fire also destroyed the home of Caroline…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 856
Decision Date: 24 April 2013

CaseChat Overview and Summary

The case of Nelson Forests Limited v Three Tuis Limited involved a fire that occurred on property owned by Stephen Garnett and Tracey Lynch, who operated a bed and breakfast business through their company, Three Tuis Limited. The fire resulted in significant damage to a neighbouring property owned by Nelson Forests Limited and incurred firefighting costs for the New Zealand Fire Service and Waimea Rural Fire Committee. The plaintiffs sought damages under section 43 of the Forest and Rural Fires Act 1977, which imposes strict liability on those who cause rural fires. The primary legal issue was whether Stephen Garnett, by disposing of hot ashes from a woodburner, caused the fire that led to the plaintiffs' losses.

The court examined the factual circumstances surrounding the fire, including the type and quantity of wood burned, the location where the ashes were dumped, and the steps taken by Garnett to ensure the ashes were cold. Expert evidence indicated that the ashes from the woodburner were indeed hot and could have ignited the vegetation. The court rejected Garnett's alternative theories regarding the fire's origin, finding them implausible. The court concluded that Garnett's actions in dumping hot ashes directly caused the fire, establishing strict liability under section 43 of the Act.

Furthermore, the court addressed the issue of negligence, finding that Garnett and Three Tuis owed a duty of care to their neighbour, Nelson Forests, and that their losses were reasonably foreseeable. The court awarded damages to Nelson Forests for the property damage and to the Fire Service and Waimea Rural Fire Committee for the firefighting costs, with interest calculated according to statutory provisions. The court reserved the decision on costs, indicating a likely award on a 2B basis with provision for one counsel.

Orders