I have previously reported that the Greater Hume Shire Council was found to be not liable for a bushfire that started on a rubbish tip operated by the council (see No liability for bushfire in the Greater Hume Shire (NSW) (May 23, 2018)).  That decision has been reversed by the Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74.

On appeal the Court of Appeal (Basten, Gleeson and Sackville JJA) confirmed that the council did owe those landowners whose property was burned out a duty of care and that they council had been negligent in the management of the tip that allowed the fire to build up and escape from the tip.

Duty of care

The trial judge had found that the Council owed a relevant duty of care to those people burned out by the fire.  This was challenged on appeal.  At [19] Basten JA said:

… the Council conceded that, as the occupier of property on which a fire may ignite, it 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.

They argued however that the plaintiff’s being 11km away were not in the relevant proximity to the tip and the council could not owe a duty of care to everyone when it could not be known, in advance, what direction a fire would travel or how far it would go.  This was rejected on appeal.  At [24] Basten JA said:

The mere fact that it is not possible to predict in advance how far, or in what direction, a fire may spread is not the kind of indeterminacy which prevents the imposition of a duty of care.

The court concluded (at [51]) that ‘the Council’s duty was to take reasonable steps to prevent unintended fires at the tip, and to prevent the spread of fire from the tip, being a duty owed to the owners and occupiers of land in surrounding areas’.

Breach of duty

Ignition

At trial, Walton J found that the plaintiff could not establish the cause of the fire and therefore could not demonstrate negligence.  The Court of Appeal disagreed.  Expert evidence had identified six possible causes of ignition. They were (at [112]):

1. Dry lightning;
2. Spontaneous combustion;
3. Residual burn (ie the result of already smouldering material reigniting);
4. Deliberate ignition; or
5. Glass (ie a lens effect concentrating the sun) or
6. Arcing from batteries dumped in the tip.

If the fire was caused by dry lightning or arson (deliberate ignition), that would not be something the council was liable for but in fact all the experts agreed that there was no evidence for these –they were hypothetical possibilities.  Equally there was nothing to suggest that material remained from fires 2 months earlier that could have caused a residual burn.  The evidence was therefore that the only real (as opposed to hypothetical) causes of the fire were spontaneous combustion; glass (ie a lens effect concentrating the sun) or arcing from batteries dumped in the tip.  As the judges said (at [114]):

If the cause of the fire was probably one of the potential causes which should not have occurred, absence negligence on the part of the Council, the Council can be held responsible for the ignition.

Although the plaintiff could not identify which of those three causes was more probable than not, the evidence established that it was more probable than not that it was one of those causes and each one would have been avoided by proper management of the tip.  The management that was required was ‘better separation of waste, together with compacting and covering the general waste’ (see [133]).  If that had been done none of the three probable causes would have occurred and the fire would have been prevented ([133]).   The failure of the council to implement those strategies was negligent and saw the council liable.

The spread of the fire

Ignition was the first step.  The fire had to spread from the tip and cover the 11kms to the plaintiff’s land.  By the time the first brigades arrived on scene, some 15 minutes after smoke was first observed, the fire had already escaped the tip and could not be controlled by the firefighting resources available.

The fire had been able to take hold because of the poor site maintenance; the failure to maintain an adequate fire break (the break that was meant to be there was too narrow, overgrown and difficult to traverse due to rubbish) and because council had left the grass to grow long across the site.  With summer that grass had cured and become a fuel load that could carry the fire to adjoining properties including an abandoned golf course that in turn provided the fuel to carry the fire to the plaintiff’s property.  The fuel load was assessed as being, at the time of the fire, 8 tonnes per hectare.

The expert witnesses agreed (and were not challenged) in their finding (at [195]):

… that reasonable precautions would have involved the grass in the tip slashed to six inches in length, covering of the bund with soil from time to time, and the removal of a fully cured (that is dried) fuel load of dry grass …

Civil Liability Act 2002 (NSW) s 42

The Council argued that the Civil Liability Act 2002 (NSW) s 42 meant that they were not liable.  That section requires a court to judge an authorities actions (or inaction) in light of all the functions the authority has to perform and, further, the allocation of resources between those competing functions is not open to judicial challenge.  Accordingly if an authority could do more with more money but it chooses to allocate its budget to functions of, say, library services and firefighting and not just firefighting, that decision cannot be challenged in court.

Basten JA took the view that s 42 as written (and not as summarised by me, above) was ambiguous and difficult to apply. His Honour reviewed case law on the section and concluded (at [98]) that when considering the various functions of the authority that:

… is to be understood as referring to functions which may involve similar risks of harm… The phrase “the broad range of its activities” in s 42(c) would not, in the present case, require reference to the activities of the Council in maintaining libraries, roads or other services with no direct relationship to the operation of waste management sites. Nor would it include management of Council lands not used for waste disposal.

Further (at [100]):

… while there can be no challenge to the general allocation of the resources so identified, the court can conclude that more unallocated resources should have been provided. No claim in negligence against a public authority can succeed unless the plaintiff establishes that there were precautions available which a reasonable public authority in the position of the defendant would have taken. In most cases that will involve the putative allocation of resources at a time prior to the point at which the risk of harm materialised.

In this case funds had allocated for waste management had been under spent by $7000, and the council had significant resources ($6.4 million) that had not been allocated for specific purposes ([178]).  Finding that the Council did have the resources to take reasonable steps to manage the tip in order to prevent ignition or reduce the risk of fire spread did not involve a judicial review of the ‘general allocation’ of resources and was therefore not prohibited by s 42.   There was, Basten JA said (at [180]) ‘no financial constraint, on the evidence available in this Court, which would have precluded a reasonable Council from taking the precautions identified’.

Causation

Basten JA also found (at [197]) that the failure by the council caused the plaintiff’s losses:

The evidence of the various local residents who saw or smelled the fire and responded, demonstrated that, had the fire been less fierce and had they [the Rural Fire Service] arrived even a few minutes earlier, they would probably have been able to prevent its spread beyond the ineffective firebreak. It was common ground that the speed with which the fire spread was a function of the fuel load, the length of the flames and the amount of spotting… The appropriate inference on the evidence summarised above is that the fire fighters would probably have arrived in time to contain a more subdued burn within the confines of the tip. The hot wind would probably have had less to work with and could not have spread a fire with limited exposed fuel as fast as in fact it did.

Other judges

Gleeson JA and Sackville AJA agreed with Basten JA.   In a separate judgment Sackville AJA described the defendant’s duty (at [212]) as a duty:

… to take reasonable care:

• to prevent the ignition of a fire on the Tip; and
• to prevent any fire that was ignited on the Tip from spreading beyond the boundaries of the Tip.

With respect to causation he said (at [225], [237]) the

… evidence indicates that the relatively simply precaution of slashing the cured grass and removing dead timber so as to minimise the fuel load would have made a very substantial difference to the progression of the fire, regardless of how it started.

… if the Council had:

• slashed or removed the long grass between the piles of waste and the perimeter of the Tip;
• covered waste with inert material at regular intervals; and
• kept the firebreak clear and maintained it in reasonable condition,

a fire ignited on the Tip would not have escaped the boundaries of the Tip.

Discussion

In my earlier post discussing the outcome of this case at trial (see No liability for bushfire in the Greater Hume Shire (NSW) (May 23, 2018)) I made mention of a paper that I wrote with my colleague Associate Professor Cary of the ANU’s Fenner School of the Environment and Society.  That paper is ‘You own the fuel, but who owns the fire?’ ((2017) 26(12) International Journal of Wildland Fire 999-1008).   In that paper we argued:

… that the statement ‘Whoever owns the fuel owns the fire’ implies a duty on landowners to manage fuel on their land to reduce the likelihood of bushfires, however started, from spreading to neighbouring properties. However, the notion ‘Whoever owns the fuel owns the fire’ has not been analysed from a legal perspective. This paper reviews Australian law to identify who is legally responsible for fire that starts on privately owned land. We argue that the correct interpretation of existing Australian law is: ‘Whoever owns the ignition owns the fire’ – that is, liability to pay for losses caused by bushfire has always fallen on those that intentionally start a fire, not on the owner of the fuel that sustains the fire.

This case remains a challenge to that conclusion.  At first instance it was found that there was no liability because the plaintiff could not establish the cause of the fire and because of various defences available to the council as a public authority. The trial judge had however found that there was a duty to manage the fuel load and further, that the council had failed in that duty.  That finding was confirmed on appeal.

On appeal however it was found that the trial judge had made a mistake on the question of ignition.  The council had negligently managed the tip to allow the ignition to occur.  This was not an intentional ignition but even so the Council did ‘own the ignition’.  In that context the finding that they were also liable for allowing the fuel load, including the grass, to develop to carry the fire is not contrary to our argument.

The court did say, however that there was a duty to prevent the spread of the fire (see [19], [51] and [212]) and that in this case this was breached by a failure to manage the fuel load at the tip, that fuel load being both the rubbish in the tip and the vegetation. There was also a failure to maintain an adequate fuel break.

Whether that finding can be extended to private land owners who simply allow fuel to accumulate is yet to be seen.  Here the council was allowing ratepayers to add fuel and potential ignition sources to the tip, not just allowing the vegetation to grow.  Further they were taking active (but ineffective) steps to manage the risk, having conducted prior hazard reduction burns and put in but not maintained a fire break (see [41]).

Council had argued (at [60]; see also [104]) that the court, when deciding what a reasonable response to the risk was had to have regard to ‘fire precautions on all land owned, manage or controlled by the Council across the 6,000 square kilometres of its local government area’.  If it found that council had to maintain fire breaks and vegetation across all of its land holdings that would be an impossible burden.  The court did not consider that the ‘management of Council lands not used for waste disposal’ posed similar risks ([98]) so this case was about the management of waste disposal areas, not all land holding.

Finally our paper was specifically about private, not public, landowners. Here the defendant was managing a tip.  At [163] Basten JA said:

There was evidence from a relevant Council officer that there are “special risks with tips regarding fire”, and that the incidence “of fires in tips is greater than in … open broad acres”.

If that risk is different the outcome of what is expected may be different.

In a summary of the case, provided by the Court, it says ‘The existence of a duty of care to prevent the escape of fire is not a novel proposition …’ and that is true. In Hargrave v Goldman (1963) 110 CLR 40 Windeyer J (quoted at [24]) explained that:

… 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.”

In Hargrave’s case the court had to consider what the defendant’s duty was having discovered a fire on his property.   This case (ie Weber v Greater Hume Shire Council) went further to consider the council’s duty when there was no fire – and found a duty to manage the fuel load in anticipation of a potential fire.  To reiterate however this was in the context of the use of the land in a way that increased the risk of fire and in the context of a fire that was, according to the court of appeal, negligently started by the defendant.  They owned the ignition source and they owned the fire.

Whether they would have been liable if the fire had started on another property and spread to their land we cannot say.  It is known that the fire was carried to the plaintiffs by other people’s fuel (ie the abandoned golf course) and they were not joined as defendants but that may have been as much to do with the ability to get money from them as any legal consideration that allowing fuel to build on their land was not sufficient to establish liability.

Conclusion

In simple terms council negligently managed their tip.  A tip brings special risks of fire.  By their negligence they both allowed the fire to start and allowed it to spread and were liable for the damage caused.

The reasoning of the court would give some support to the notion that a landowner has a duty to manage the accumulation of fuel on their land to stop it spreading as the court found that there was a duty to take reasonable steps to prevent the spread of fire and in this case this included a duty to manage the fuel load in anticipation of a fire, not just reasonable steps to do something once the fire has started.   How far that reasoning goes remains to be seen.  It may add weight to the argument ‘if you own the fuel you own the fire’.  In this case however the fire started on council’s property and started due to council’s negligence.  Whatever the reasoning may say about those who own the fuel, it confirms that if you own the ignition source, you own the fire.