On 14 May 2018 Justice Walton delivered his judgment in the matter of Weber v Greater Hume Shire Council  NSWSC 667. This was a class action where the plaintiff, Sharon Weber sued the council on her own behalf but also on behalf of 57 others who suffered loss and damage when a fire escaped from the Council’s Walla Walla tip. The fire burned over 11kms, passing through (or over) a disused golf course and various farms before reaching, and damaging, the plaintiff’s property. The plaintiff sued the council alleging the council’s management of the tip was negligent. The negligence, it was argued, allowed the fire to start and allowed the fire to spread causing the damage suffered by the plaintiff and the members of the class.
In summary, Walton J found that the defendant council owed the plaintiff a duty of care, that they had not responded to the risk of fire with ‘reasonable care’ but the failure did not cause the plaintiff’s losses, and so the claim was lost. That simple summary hides much detail that will now be discussed.
‘You own the fuel, but who owns the fire?’
My colleague Associate Professor Dr Geoff Cary and I wrote a paper entitled ‘You own the fuel, but who owns the fire?’ ((2017) 26(12) International Journal of Wildland Fire 999-1008 https://doi.org/10.1071/WF17070). In that paper we argued that the oft quoted statement ‘Whoever owns the fuel owns the fire’ implies a legal duty on landowners to manage fuel loads on their property or risk legal liability should the fuel on their land be the vehicle that allows fire to burn onto their neighbours property. We concluded (p. 1003, emphasis added):
On the spectrum for establishing liability, it can be predicted that liability for the spread of a fire that is deliberately started as a prescribed burn will be an almost certainty. Liability for doing nothing while a fuel load naturally accumulates will be, at best, ‘arguable’.
The following discussion will be assisted with some familiarity with the arguments in our paper.
Around 1.30pm On 17 December 2009 a fire started within the boundaries of the council’s tip. The fire was reported to the NSW Rural Fire Service at 1.38pm . The first appliance was on scene at 1.45pm . The firefighters used bolt cutters to open a gate to the tip and travelled a further 500m to arrive at the tip . They noticed that the fire had already escaped the confines of the tip so they travelled back to the road to fight the fire there but, when they got there the fire had already crossed the road . The Commissioner of the Rural Fire Service took control of the coordinated response to the fire (Rural Fires Act 1997 (NSW) s 44) at 3pm. In total ‘Forty fire brigades and four aircraft assisted to put out the fire… The total area burnt was approximately 5,200 hectares. Some of this was public land, much of it was the land owned by local residents and farmers’ -.
Ms Weber commenced a class action – she alleged that Council was negligent in that it:
- failed to take reasonable care to prevent a fire starting at the tip, and
- failed to take reasonable care to prevent a fire, once started, from escaping from the tip.
The cause of the fire
The cause of the fire could not be established. Experts called by both parties suggested there were five possible causes. They were:
- Dry lightning;
- Spontaneous combustion;
- Residual burn (ie the result of already smouldering material reigniting);
- Deliberate ignition; or
- Rubbish dumped on the tip, in particular glass (ie a lens effect concentrating the sun) or arcing from batteries dumped in the tip.
Only one expert suggested cause 1 (dry lightning) and the judge rejected that as a possible cause. The various experts agreed that possible cause 5 was unlikely. The evidence could not however establish, on the balance of probabilities which if any of the causes did cause the fire. At  His Honour said:
The plaintiff has failed to establish the cause of the fire. The plaintiff cannot, therefore, prove that the fire was caused in breach of any duty owed by the defendant to her (or the other group members).
Because the plaintiff couldn’t prove what caused the fire, she couldn’t prove that any negligence by the defendant contributed to the fire or that there was anything the defendant could have reasonably done to prevent the fire. Accordingly this part of the claim was lost.
Preventing the spread of the fire
This was a much more complicated matter. The plaintiff had to establish (as with all negligence claims) that
- the defendant had a duty to take steps to prevent a fire that they did not start from spreading from their land;
- that they failed to take some reasonable steps that were open to them for that purpose; and
- as a result the fire did escape and cause the damage suffered.
Duty of care
With respect to a duty of care, all the parties recognised that tips pose a fire risk and that is a risk that can never be eliminated or reduced to zero. At - His Honour said:
In my view, the plaintiff has established that the defendant owed a duty to the plaintiff (and the group members) to take reasonable care to avoid risk of personal injury or property loss caused by the escape of fire from the Tip.
The defendant had a substantial degree of control over the relevant risks and had an intimate knowledge that its act or omissions in connection with the operation of its landfills may create or increase a risk of harm to members of the public. The plaintiff established that there was a risk of fires, of whatever cause, known or unknown, in the Tip and that there was an eminently foreseeable consequential risk of such fires escaping (and causing damage) unless sufficient reasonable practicable measures were taken to prevent such an escape. (There is a finding also available in this matter that the risk of fires escaping was actually foreseen by the defendant).
Breach of duty
Identifying that there is a duty to take reasonable steps to mitigate a risk is only the first step; the plaintiff then has to show that there was something reasonable that a reasonable person in the position of the defendant would have done to mitigate those risks.
The plaintiff alleged (at ) that the defendant should and could have, but did not:
(a) prepare and implement a fire management plan;
(b) create and maintain an effective firebreak;
(c) consolidate deposited waste into appropriate areas;
(d) remove fuel to prevent dangerous build ups;
(e) install and maintain fire fighting equipment;
(f) undertake inspection and monitoring of the facility during periods of extreme bush fire risk;
(g) ensure different kinds of waste are not mixed together;
(h) cover waste with cover material on regular basis;
(i) manage green waste piles; and
(j) manage combustible material to minimise risk of combustion
His honour rejected (e) and (f). The council owned 10 tips and could not know where a fire might start. If they were going to install firefighting equipment they would have to do it at each tip and it would still depend on someone getting there to use it. As it was the volunteers from the RFS were there within 10 minutes with fire fighting equipment. Further if the Council was going to ‘undertake inspection and monitoring of the facility during periods of extreme bush fire risk’ they would have to do that at each tip and 24 hours a day for it to be effective.
Rejecting (e) and (f) what’s left could, in my view be summarised as ‘the defendant failed to manage the fuel load at the tip’. The potential fuel was not only all the rubbish that was dumped at the tip (including green waste) but also the vegetation growing at the tip. The grass and trees were allowed to grow leaving long grass and an unmaintained fire break. The Rural Fire Service conducted an annual hazard reduction burn of the accumulated green waste , but there had been no attempt to reduce the hazard posed by the growing grass and trees for over 8 years .
The Council did not start the fire, and they were not negligent (or at least, given the cause of the fire could not be proved, they were not shown to have been negligent) in their attempts to control the risk of ignition. If they were liable it would be because of their failure to manage the fuel load that carried the fire from their tip to the neighbouring properties – they owned the fuel; did they own the fire? At  His Honour said:
… the existence of a build-up of fuel overtime which had the potential to ignite increased the probability of harm of ignition and that, if ignited, the fire would escape outside the borders of the Tip. It is those considerations that must inform the reasonable response to the risk of harm. In my view, they would have caused a reasonable person, on the assessment of probability of harm arising at the Tip, to have taken precautions. It is beside the point that the probability of harm that existed in the golf course was the same.
At  His Honour found that “that a reasonable person in the position of the defendant would have taken the precautions (a), (b), (c) and (d) to avoid the spread of fire, in the event a fire ignited at the Tip.” That is there was a duty, amongst other things, to ‘remove fuel to prevent dangerous build ups’.
With respect to the management of naturally occurring fuel (rather than dumped rubbish) it was said (at ):
In summary, the expert evidence was that fuel load will be an important factor in the spread of fire… The removal of combustible material including the cured grass will retard the expansion of fire and permit a greater opportunity for intervention of fire crews. There was evidence as to the difficulties of slashing in the Tip due to the state of the land but there was no evidence to the effect that slashing was not possible or attempts to slash was ineffective. The evidence was that the defendant made no real attempt to reduce fuel as the Tip including by chemical means. There was a significant failure to take a reasonable fire precaution, in this respect, in accordance with the defendant’s duty of care.
And finally (at ):
The plaintiff has proven, on the balance of probabilities, a breach of duty, with respect to escape, by the failure to sufficiently take those precautions against the risk of harm, namely, in the following areas: prepare and implement a fire management plan; create and maintain an effective firebreak; consolidate deposited waste into appropriate areas and remove fuel to prevent dangerous build ups.
Even so the plaintiff lost as she did not establish that, on the balance of probabilities, taking those precautions would have prevented the fire spreading. At :
All three experts agree that the main cause of the spread of the fire were the prevailing weather conditions.
And (at , ):
… the evidence in the case rises no higher than that, some actions, steps or precautions which might have been taken would have influenced the risk of fire spread… The highest the opinion of the experts reached as to the spread of the fire … was that “the slowing effect of the other measures might have bought sufficient time for the fire fighters to successfully intervene”. It follows, as the defendant submitted, that persons eminent in the field in considering the questions as to ignition and spread of fire, were not prepared to express an opinion that it was more likely than not that the measures would have slowed the fire to such an extent as to provide sufficient time for fire fighters to successfully intervene.
The reference to ‘more likely than not’ is a reference to the plaintiff’s burden of proof. The plaintiff has to prove, on the balance of probabilities, that is that it is more likely than not, that if the precautions had been taken it would have made a difference. She could not and so the claim both in negligence and nuisance failed.
Where does that leave ‘own the fuel, own the fire’?
On one view this decision may seem a counterpoint to the argument in Eburn and Cary. In that paper we said (at p. 1003) “… so far, there is no legal precedent to say that if you own the fuel that carries a fire from one property to another, then you own or are responsible for the damage done to your neighbour.” This case does not say that either, given there was no liability, but it does say there was a duty to manage the fuel load.
Having said that I don’t think this case does affect our arguments or our conclusions. First in our paper we didn’t argue that there could be no liability for failing to manage fuel loads, we argued that such a case would be much more complex and hard to establish. Again at p. 1003 we said:
On the spectrum for establishing liability, it can be predicted that liability for the spread of a fire that is deliberately started as a prescribed burn will be an almost certainty. Liability for doing nothing while a fuel load naturally accumulates will be, at best, ‘arguable’. For a gambler, doing nothing is legally safer. Liability for failing to reduce fuel loads, and so possibly contributing to fire spreading from one property to another, is theoretically possible, but so far unheard of and would be difficult to establish.
Had this fire escaped from a hazard reduction burn, the plaintiff would have had a much stronger case (recognising that as a public authority, the council would have had defences that a private citizen does not so even that can’t be asserted with confidence). As we noted the claim here was possible but it was impossible to establish so our proposition remains true, the risk to the council was probably less by not controlling the natural fuels by hazard reduction burn. They could have used chemical or mechanical means as that could be done without risk to council and would have reduced the risk to others but our paper was comparing the risk from conducting a hazard reduction burn with doing nothing. I think this case confirms that the legal risk of doing nothing is still less than lighting a hazard reduction burn, though one might say the legal risk of doing nothing has just gone up a bit.
Second our paper was comparing ‘Liability for failing to treat a fuel load that has been allowed to naturally accumulate …’ with liability for starting a hazard reduction burn that escapes. Whilst the grass and trees at the tip accumulated naturally, there was other fuel there too. His Honour said (at ):
… the operation of a Tip was a dangerous activity. There was a risk that the escape of the fire would damage her property and that risk was reasonably foreseeable: Burnie Port Authority v Gerard [sic] Jones Pty Ltd (1994) 179 CLR 520 at 530-531 and 556-557.
At - he said:
… whatever the social utility of rubbish tips, they constitute, on the evidence, an unnatural and dangerous use of land and it is thereby incumbent on the operators to take the necessary precautions in relation to each of them… As Lord Macmillan said in Glasgow Corporation v Muir  AC 448, “[t]hose who engage in operations inherently dangerous must take precautions which are not required of person engaged in the ordinary routine of daily life” (at 456).
The reference to ‘an unnatural and dangerous use of land’ calls up the ancient case of Rylands v Fletcher  UKHL 1 where The Lord Chancellor, Lord Cairns, said:
… the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.
That is if you bring something dangerous onto your land, such as water, a flood, a tiger or the sort of rubbish that is deposited at a council landfill site, and it escapes and causes damage then you are liable regardless of the precautions you took to prevent that escape. But such strict liability did not apply to the ‘natural user of that land’.
In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 the High Court said that Rylands v Fletcher is no longer good law in Australia but Walton J was making reference to that principle when he referred to an ‘unnatural and dangerous use’ of the land. The outcome of the decision in Burnie Port was that liability for the spread of fire is to be determined by the general rules of negligence. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said (at ):
Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”.
If the use of the land as a tip (with the resultant delivery of consumable rubbish including green waste and other material that may be subject to spontaneous combustion (see Weber v Greater Hume Shire Council  NSWSC 667, -), provide other sources of ignition and which will have flammable characteristics different to grass) is an ‘unnatural and dangerous’ use of the land then the duty, although still governed by the response of the reasonable person, may be impose a higher threshold of care than it would for those that are making a ‘natural’ use of the land. It follows that the finding that the council had a duty to manage the fuel load, being both the rubbish and the naturally occurring vegetation, may not be directly transferable to a landowner who simply leaves vegetation unattended without introducing other sources of fuel and ignition risk.
This fire had to burn 11kms to reach the plaintiffs property. To get there it had to be carried by fuel (grass) on the golf course and neighbouring properties. The golf course had a grass fuel load similar to the tip. The golf club and other land owners were not sued on the basis that they owned the fuel that carried the fire and were therefore responsible the fire’s spread. Their ownership of the fuel that carried the fire did not put them at risk; they were not sued. But had they lit a hazard reduction burn that escaped, their liability would be ‘be an almost certainty’ (Eburn and Cary, p. 1003).
There are, I think two conclusions to draw. The first relates to the decision in Weber v Greater Hume Shire Council  NSWSC 667. The conclusion there is that once again it demonstrates the error of the popular view that if you can foresee harm, and it occurs, you’ll be liable. The law is more complex than that and depends on all the circumstances. The court did not accept that the defendant had a duty to do all that the plaintiff claimed, but they did find there was a duty of care and that the response to that duty was inadequate. But even so that was not sufficient. It was not the defendant’s conduct that caused the fire to spread, it was the weather.
The second broader conclusion goes to the issues raised in Eburn and Cary. There we said that the risk of liability from lighting a hazard reduction burn that escapes is much higher than doing nothing about reducing naturally accumulating fuel loads. This case did find there was a duty to address the fuel load in the circumstances. But those circumstances were where the defendant was operating an ‘unnatural and dangerous’ or ‘inherently dangerous’ activity. That may impose a duty to take greater care than a person who is using the land ‘naturally’. To be specific, this case did not involve only naturally occurring fuel but the growth of vegetation in the presence of accumulated, hazardous and flammable rubbish. How far that duty would go to say a landowner who is doing nothing with his or her land remains to be seen.
Even so the council was not liable because it could not be shown that, on this day, it would have made a difference. It was, according to His Honour, the weather that moved the fire.
The council owned the fuel, but they did not ‘own’, that is they were not responsible for, the outcome of the fire.