In Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450, Schmidt AJ had to determine questions of liability for a land clearing burn that escaped onto a neighbouring property.

The facts

The defendants, Mr Fitzgerald and Ms McCoy were absentee landowners who, in 2011, bought the property ‘Doran’ in Berridale, southern NSW, with the intention of ultimately retiring there. When they bought the property, it was subject to notices requiring them to take steps to remove weeds.

The defendants asked the Rural Fire Service (RFS) if they would conduct a burn on the land to clear the weeds and to reduce dry fuels on the land – ie it was a burn both for land clearing and a hazard reduction burn.  The RFS agreed to do the work at no cost to the defendant and subject to some acknowledgments from the defendants (to be explained in more detail, below). It was planned to conduct the burn on 20 and 21 August 2012 but rain meant the second day was put off until 28 August.

550 acres of Doran was burnt by the RFS. The burned area included land close to the border with Mr Woodhouse’s property, ‘Myack’. Burned, but left standing on a ridge was an old hollow gum tree.  5 September 2012, after periods of rain and snow, was a day of unseasonal fire weather. There was low relative humidity, a relatively high temperature and strong winds. A total fire ban was declared. The evidence was that the tree on Doran continued to smoulder with fire in the root structure that may have been insulated, rather than extinguished by the cover of snow.  Embers escaped (either from the roots or from a falling branch) and caused an extensive fire that burned onto Myack and caused damage to the farm and homestead valued in excess of $1.2 million.

Mr Woodhouse sued Mr Fitzgerald and Ms McCoy alleging both negligence (a lack of reasonable care) and nuisance (unlawful interference in his use and enjoyment of his land). No-one attempted to sue or ‘join’ the RFS with the parties accepting that provisions of the RFS Act (in particular s 128 providing immunity for acts done in good faith) meant that they were not liable even if they were negligent.

The duty of care

There are two types of duty of care. The ‘normal’ duty is a duty to take reasonable care to avoids acts or omissions that might injure your neighbour. There was no doubt that the defendants owed a duty of care to Mr Woodhouse but one might ask – what more could they do? They were novice landowners who did not know how to conduct a burn so they turned to the ‘experts’ the RFS and engaged them to do it. They took ‘reasonable care’ by ensuring that people who did (or should have) known what they were doing undertook the task.   Put that way one might have sympathy for the defendants but that is too superficial.

First there is another, higher duty, referred to as a ‘non-delegable’ duty.  A non-delegable duty arises in cases where the risk of injury is so high that a defendant cannot escape responsibility by ‘delegating’ the task to someone else. A duty of care is a duty to take reasonable care, a non-delegable duty is a duty to ensure that reasonable care is taken including by one’s agents. Her Honour reviewed earlier case law including Burnie Port Authority v General Jones (1994) 179 CLR 520 (discussed in all the posts found here – https://emergencylaw.wordpress.com/?s=burnie).  In Burnie Port Authority, Mason CJ along with Deane, Dawson, Toohey and Gaudron JJ said (at [41]):

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. … Even where a dangerous substance [such as fire] or a dangerous activity … 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”.

Her Honour could not distinguish this case (and others) from the one before her and held that here too there was a non-delegable duty owed by the defendants to the plaintiff. She said (at [235]-[236]; [239]; [243]):

There can be no question as to the nature of the danger that eradicating weeds and dry vegetation on over 550 acres on Doran by fire posed to Myack, given the risk of fire escaping either during, or after the burn if it was not properly extinguished. Nor can there be any question that Mr Woodhouse was especially vulnerable to such damage, having not been given prior notice of the burn, despite his undoubted vulnerability to damage if reasonable precautions were not taken to ensure that fire did not escape from Doran, either during or after the burn.

The RFS was authorised by Mr Fitzgerald and Ms McCoy to enter Doran to undertake the burn in their absence. That they [Mr Fitzgerald and Ms McCoy] decided not to be present cannot have diminished the duty which they owed Mr Woodhouse. After all, as owners of Doran, if at any time they were not satisfied that reasonable precautions were being taken by RFS volunteers, particularly during post burn monitoring, they were unarguably entitled to take other steps, to ensure that the necessary precautions were taken…

The lighting of the fires on Doran, which could readily spread to Myack and cause great damage there, both during the burn and afterwards, if the fires were not properly extinguished, involved an operation necessarily attended with significant danger. That required that Mr Fitzgerald and Ms McCoy use all reasonable precautions to prevent the fire extending to their neighbour’s property, which could not be satisfied simply by engaging the RFS and its volunteers…

This means that they are liable for any breach of their duty, notwithstanding that they left the performance of their duty entirely to the RFS

If the RFS failed to exercise reasonable care, then the landowner had failed to ensure reasonable care was taken and was liable for the damage even though they did not and could not undertake the burn themselves.

The defendants’ acknowledgements

The defendants’ arguments were in part, that they did all that they could reasonably do. They had engaged the RFS and they did not know of the risk that could be posed by a burned, smouldering tree (see [153]).  They were given no advice from the RFS of the need to monitor the tree but that was contradicted by a pro forma “request for assistance with a prescribed burn” that they signed. The contents of the form were (at [150]):

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

I acknowledge I am responsible for:

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

* obtaining a fire permit if required; N/R

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

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

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

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

The notes “N/R” next to the bush fire hazard reduction certificate and fire permit dot points, “Local RFS Personnel will do” next to the notification dot point and the entry “done: 14 and 15 August Lex Suthern” were made by Ms McCoy ([152]).

It should be noted that the RFS did not agree that they had said they would make any notifications ([276]) or take responsibility for monitoring the land after the fire.

At [157] and [159] Her Honour said:

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

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

And at [170]:

Having given their acknowledgment of the responsibility which they had even after the burn, when obtaining the assistance of the RFS, it is difficult to conceive that Mr Fitzgerald and Ms McCoy had no understanding of their own responsibility for the control of the fire they arranged to be used on Doran …

Her Honour found that there was a breach of duty.  Helpfully she summarised her findings before going into them in detail. For the purposes of this blog, Her Honour’s summary will suffice.  She said (at [299]).

… I am satisfied that reasonable precautions which were available and ought to have been taken included:

(1)        dowsing the tree with water mixed with fire retardant;

(2)        when the tree was identified as posing an ongoing risk, knocking it over, exposing the roots, dowsing and reburying them;

(3)        inspecting the tree on the morning of 5 September, when high fire risks prevailing that day became known; and

(4)        Mr Fitzgerald and Ms McCoy making enquiries to ascertain what ongoing fire risks had been identified; what precautions were being taken to deal with those risks; that they were being taken by the RFS and if not, to take those precautions themselves.

Failure to do that, or to ensure that this was done, was a breach of duty by Mr Fitzgerald and Ms McCoy.

Concurrent wrongdoers

The Civil Liability Act 2002 (NSW) Part 4 provides that a court can allocate liability between concurrent wrongdoers to the extent that ‘the court considers just having regard to the extent of” their responsibility…’ ([340]). I imagine this provision was passed to stop people suing the defendant with the deepest pockets but who may only have contributed a small extent to the total losses.  At the time of the moral panic surrounding the legislation there was outrage that people who were only ‘a little bit’ negligent were being hit with large liability bills; but at common law liability was never dependent on degrees of negligence.  If you were negligent you were liable to make good the losses.

In this case it was argued that it was the RFS that was principally responsible for the losses.  Her Honour held (at [348]) that the fact that the RFS would not be liable to Mr Woodhouse (by virtue of the Rural Fires Act and indeed that they had not been joined as a party) did not stop the court from being able to make a finding that they were a concurrent wrongdoer.  In apportioning blame Her Honour said (at [357]-[360]):

… a reasonable person in the position of Mr Fitzgerald and Ms McCoy, given the acknowledgement which they had given, would not have simply accepted the assistance of the RFS and its volunteers at no cost, in the expectation that they would undertake all necessary post burn monitoring of over 550 acres of Doran, to guard against the real risk of the fire reigniting and spreading to adjoining properties. Rather, such a person would have taken available steps to understand the ongoing risk of reignition which continued after the burn; what precautions were to be taken by the RFS to guard against them; to ascertain that they were being taken; and if they weren’t, to themselves take precautions to deal with the ongoing risks.

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

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

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

Contributory negligence

Finally, Her Honour considered the claim that Mr Woodhouse was in part responsible for his own losses. Without going into details it was accepted that, given the unseasonal conditions on 5 September he failed to take reasonable steps to protect his own property (see [383]-[389]).  His contribution was assessed at 10%.

Discussion

If Mr Woodhouse’s damages were $1.2m, a 10% discount for contribution negligence would see him receive $1 080 000. But if Mr Fitzgerald and Ms McCoy only had to pay 35% they can be expected to pay $378 000.  Because the RFS were not joined no-one determined whether they would or could have been liable but as they were not parties they could not be ordered to pay damages.  So Mr Woodhouse will be left out of pocket in the sum of $702 000.

I confess I fail to understand Her Honour’s reasoning on this point.  If the duty that the defendants owed was a non-delegable duty to ensure that care was taken, their breach was not only the failures set out [357] and quoted above, but also a failure to ensure that the RFS did all the things they should reasonably have done and a failure to make sure those things were in fact done.  This is particularly the case given the defendants knew they were asking volunteers, who had other commitments, to do this work for their benefit and for no cost.   I am not familiar with the case law on Part 4 of the Civil Liability Act but this outcome seems to me to be, at best, perverse.

It is particularly perverse, in my view, because the RFS were not a party to this case. This means they were not represented by counsel.  Further as Her Honour noted at [259] that it had not been put to RFS witnesses that their conduct was negligent and ‘it was not even apparent that they were aware that this was a part of his case’.

In a paper I wrote with my ANU colleague, Associate Professor Geoff Cary entitled ‘You own the fuel, but who owns the fire?’ ((2017) 26(12) International Journal of Wildland Fire 999-1008; and see A new publication (December 4, 2017)) we argued that under current Australian law a landowner may be at lower risk by doing nothing rather than setting a hazard reduction burn. One might think this case proves the point.  This burn was in part for weed control and in part for fire hazard reduction.  If we limit the discussion to the fire hazard control, had they done nothing and a lightning strike cause the fire that burned onto Myack the defendant’s would not have been liable.  As it was their efforts, which at one level seem reasonable ie engaging the RFS to conduct the burn on their behalf saw them liable.

To be fair, in that paper we said

It would be possible to make changes to the law that would bring the law more in line with the policy direction.

  • Bushfire management legislation should provide that where a landowner obtains a permit to conduct a prescribed burn, and the landowner honestly and in good faith complies with the restrictions, requirements and conditions of any permit, that should be prima facie evidence that the landowner’s conduct was reasonable and should provide a defence to any claim in negligence should the fire escape.

Even if that amendment were in place it would not have helped Fitzgerald and McCoy because they did not obtain necessary permits, give notice to Mr Woodhouse or otherwise comply with their obligations.  But even so they were, as Cary and I predicted, liable because they caused the ignition (in that they contracted for it not that they set the match) in circumstances where they would not have been liable if a naturally occurring fire had spread to the neighbours land.

It is also perverse that the defendants have managed to minimise their liability by engaging the RFS to undertake the burn. Had they done it themselves or engaged private contractors they would not have had the benefit of the statutory protection. It would certainly make it prudent for future landowners to get the RFS to do their hazard reduction burns if they can enjoy the benefit of the statutory protections for the RFS to reduce their liability.

Conclusion

The case confirms that ‘if you own the ignition you own the fire’.  Mr Fitzgerald and Ms McCoy arranged for a fire on their land, for their benefit and they were liable for the spread of the fire. The high risk of fire meant that they were responsible to not only take reasonable care but to ensure that those they engaged also took reasonable care to prevent the spread of fire. The failure of anyone, RFS or the defendants, to inspect a large hollow tree that had been burned, in circumstances where it was foreseeable and known that such trees can smoulder for some time after the fire was negligent. It was particularly negligent when there was forecast a day of unseasonal high fire danger. That is not controversial.

What I find controversial is the finding that the RFS was held 65% responsible (but not liable) notwithstanding:

  • the defendant’s acknowledgment that they were ‘responsible for preventing the spread or escape of the fire and ensuring that it is properly extinguished’;
  • that the RFS was not a party to the action and therefore was not on notice, or able to make representations about the conduct of its volunteers; and
  • at least in my view, the finding seems inconsistent with the rational behind the idea of a non-delegable duty of care.

This is the decision of a single Supreme Court judge. Trial courts are busy and have to write judgements on the facts. It is not a binding precedent on future cases. For that we need a decision of the Court of Appeal or the High Court of Australia.