Today’s correspondent wants:

… some insight or advice on the following incident which occurred recently.

 A farmer lit up a paddock of canola stubble roughly 1.5 kms south of an NSW highway and left the fire to burn overnight. The farmer erected cautionary signage on the highway advising of smoke ahead from an agricultural burn.  The canola stubble sustained very little active fire however smouldered significantly overnight and well into the following day. An inversion layer formed overnight resulting in significant smoke impact over a wide area including the previously mentioned highway.

Just prior to midnight a truck crossed onto the wrong side of the highway due to the poor visibility from the smoke impact, emergency services were called and attended the location. Other vehicles were involved in what became a multi-vehicle accident.  Fortunately, there was no injury to motorists nor emergency service personnel in attendance, however this could have easily occurred.

The overarching contributing factor was the smoke which was described as reducing visibility to near white out conditions or less than 5 meters; the highway was closed for several hours due to the smoke.

On this occasion the farmer appears to have acted with good intent (I believe he wasn’t reckless nor careless) however there have been other incidents recently with farmers burning off without any consideration of the smoke impacting roads and the safety of motorists resulting in minor collisions.

Whilst it could be argued that the motorists failed to drive to the conditions and therefore are ultimately responsible the farmer must bear some responsibility for their activity creating unsafe driving conditions.

As a member of the NSW RFS, I am often asked about safe burning practices and the legal responsibilities of land holders who use fire in the open. Apart from leaving the fire unattended this incident appears to fall outside of the Rural Fires Act, can you advise on the following:

1. Would the Work Health & Safety Act 2011 (NSW) be applicable to the farmer in this situation?
2. Would the farmer be in contravention of Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9?
3. What other NSW Acts would the farmer likely be contravening if any?
4. Are you aware of any previous civil action or case law that may be relevant to the above situation?

I’ll answer those questions in reverse order.

Question 4 – Am I ‘aware of any previous civil action or case law that may be relevant to the above situation?’

This scenario is very similar to the situation in Lobsey v Care (1983) 1 MVR [Motor Vehicle Reports] 1.  In this case two landowners, Lobsey and Inglis, were conducting a hazard reduction burn along the side of the road.  A driver came around a corner and was confronted by flames, rather than smoke, from the burn off. The driver moved to the opposite side of the road and ran into a car travelling in the opposite direction. One person was killed and two were injured.  In that case no warning had been given to motorists. 

The legal proceedings were complicated. Mrs Care sued her husband Mr Care for negligence in Queensland. (That is not as silly as it sounds, all cars have compulsory third party insurance, so the passenger sues the driver, and the insurer pays the damages. It does not matter that the passenger is the driver’s spouse or child. She wasn’t really ‘suing’ her husband, she was making a claim for motor accidents compensation under the scheme that existed in 1983. This first action was heard in Queensland because, I infer, the Care’s were resident there and the car was no doubt registered there and the action would have been governed by the applicable motor accident legislation). 

Mr Care (or more probably, the insurer who had paid out to Mrs Care) then sued Lobsey and Inglis. (This action was heard in NSW because that is where the tort or wrong occurred. The relevant law in the claim between the Care’s was the Queensland law, between Mr Care and Lobsey and Inglis the relevant law was the NSW law of negligence and nuisance).  The Court of Appeal confirmed the trial judge’s finding that Lobsey and Inglis ‘were guilty of a public nuisance and negligence’ and liable for damages in excess of $300,000.

(Lobsey tried to argue that he was not liable because he was a local RFS captain and was protected by the Bushfires Act 1949 (NSW) s 48; see now Rural Fires Act 1997 (NSW) s 128. This was rejected and for a discussion of that part of the case see Authority to enter private property for a hazard reduction burn (July 9, 2016)).

Another relevant case would be Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79 (discussed in the post No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).  That case involved a claim for damages when wine grapes were damaged by smoke during a hazard reduction burn.  The Department had statutory functions that required it conduct hazard reduction burns in the areas. There were limited opportunities for those burns, and it was impossible to conduct them outside the period when grapes were subject to ‘smoke taint’. The Department was not liable for the damage done to the plaintiff’s grapes.

Critical to the Department’s defence, aside from statutory defences that would not be open to a private landowner, was the care and consideration that they put into the planning and consideration of the weather.  The same level of care may not be expected from a person with much more limited resources (see Goldman v Hargrave (1966) 115 CLR 458 (UK Privy Council on appeal from the High Court of Australia); discussed in the post Landholders duty of care for fire and other hazards (March 22, 2014) but there would be an obligation to take ‘reasonable’ care to protect neighbours from the impact of the fire.  Whether that would extend to the impact of smoke is debatable. In Southern Properties McLure P referred to an earlier case, Burnie Port Authority v General Jones (1994) 179 CLR 520, that imposed almost strict liability for the escape of fire. McLure P said (at [84]-[85]):

It is immediately apparent that Burnie Port Authority does not provide any authority for the strict duty of care for which the appellants contend. However, the principles in that case relating to duty and breach do not apply for additional reasons.

First, this is a claim about the escape of smoke not fire. Fire is inherently and unequivocally dangerous whereas smoke is not…

An issue relevant to the question of negligence is the amount of control that the defendant has over the hazard. At [101] McLure P said ‘There can be no prescribed burn without smoke. Further, the Department does not have control over all the variables that can impact on the amount, intensity, duration and direction of smoke from a prescribed burn…’.  Where there would be almost strict liability for the spread of fire, there cannot be for the spread of smoke. But that does not mean there can be no liability.

Southern Properties does not establish that the landowner described in today’s question would be liable, but the difference between a private landowner doing what I infer is a land clearing burn, and a government department executing government policy with respect to bushfire hazard reduction and the level of planning that went into that burn preparation would imply that the precedent of Southern Properties is likely to be of little assistance.

The answer to question 4 is therefore yes, I am ‘aware of previous civil action …that may be relevant’ in particular Lobsey v Care that had almost identical facts where liability was established, and Southern Properties v Department of Conservation and Land Management where there was no liability, but the circumstances were so different that it will provide little assistance.

3.      What other NSW Acts would the farmer likely be contravening if any?

Not so much a ‘contravention’ but relevant to the discussion of civil liability, above, is the Civil Liability Act 2002 (NSW) s 5B(1).  That section says:

A person is not negligent in failing to take precautions against a risk of harm unless–

(a)        the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)       the risk was not insignificant, and

(c)        in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Although phrased in the negative, ie when a person is not liable, we can infer that a person may be liable if they fail to take the precautions that a responsible person would have taken to avoid causing harm by a foreseeable and significant risk.

When deciding what precautions a reasonable person would have taken a court will consider (s 5B(2)):

(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.

One has to avoid the temptation to judge these matters in hindsight so that the fact that the event happened does not say how the risk of harm would have been assessed before the event, but case like Lobsey and Southern Properties would indicate that the risk of harm by smoke was well known.  In Southern Properties it was held (Pullin J dissenting) that was little the defendant could do to avoid the risk given the government’s policy commitment to hazard reduction burns. Pullin J argued that there was a simple and no cost step to avoid the risk – don’t light the fire!  That is more applicable in the described case where there was no duty to light the fire and there was probably a much wider window to wait for favourable weather.

That does not mean that landowners can never use fire for land clearing. It is an accepted use of fire in Australia (see Hazelwood v Webber [1934] HCA 62; Burnie Port Authority v General Jones (1994) 179 CLR 520 [21]-[23]) although it carries undoubted risk. The point is that there is ‘social utility’ or at least private utility in the use of fire and that has to be considered when determining what a reasonable person would do in response to the risk of fire and smoke and whether the only reasonable response is to light no fire.  If it can be reasonable to light the fire, then the duty is to take measures to control the risk of its spread and arguable the impact of its smoke.

As my correspondent has noted, the defendant may be guilty of an offence contrary to the Rural Fires Act 1997 (NSW) s 100(2) which says:

A person who, without lawful authority, leaves whether temporarily or otherwise any fire which the person has lit or used in the open air before the fire is thoroughly extinguished is guilty of an offence.

Maximum penalty–50 penalty units or imprisonment for 12 months, or both.

2.      Would the farmer be in contravention of Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9?

The Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) cl 9 says:

(1)  A person who burns anything in the open or in an incinerator must use all practicable means to prevent or minimise air pollution.

Maximum penalty—

(a)  for a corporation—100 penalty units, or

(b)  for an individual—50 penalty units.

(2)  Without limiting subsection (1), the means of preventing or minimising air pollution may include the following—

(a)  mitigating the potential for smoke impacting on a person, considering—

(i)  wind direction, and

(ii)  weather conditions, and

(iii)  the likely length of burning time of the material,

(b)  taking reasonable measures to ensure the material being burnt is not wet,

(c)  burning only material that is suitable for disposal by burning, considering the possible effects on human health and the environment.

Clearly the landowner in the case described could be guilty of this offence. The issue would be what means did the landowner take ‘to prevent or minimise air pollution’ and were these all the ‘practicable’ means available.

1. Would the Work Health & Safety Act 2011 (NSW) be applicable to the farmer in this situation?

Assuming the farm was a workplace then yes that Act would apply. That Act imposes a duty on the person conducting the business or undertaking to ‘… ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’ (s 19(2)).  If lighting the fire was part of the work of a PCBU then that duty applies. In this case, we are told, road users were exposed to risk due to smoke and the smoke, in turn, was due to the actions of the PCBU.

Again, the question would be did the landowner do all that was ‘reasonably practicable’ to mitigate that risk.  In deciding what was ‘reasonably practicable’ a court must have regard to (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The farmers intention – recklessness or carelessness

The farmer’s ‘good intentions’ are irrelevant.  Good faith is not a defence to negligence (Vaughan v Webb (1902) SR(NSW) 293; which is why so much legislation including fire brigades’ legislation have sections to say good faith is a defence). Recklessness is a term from the criminal law. It means that a person foresaw the possible (or in the case of murder, probable) consequence of his or her actions but went ahead anyway. He or she can then be liable as if they intended those consequences (R v Crabbe [1985] HCA 22).

In civil law the relevant test is the standard of care, or ‘carelessness’. In law to conclude that someone was not ‘careless’ means that they took ‘reasonable care’.  If they took reasonable care, they were not negligent. Another meaning that may be intended when one says they were not ‘careless’ is that they did care about the outcome, that is they did think about and try to avoid the risk – they did care – but that is not sufficient.  A defendant must meet the standard of applying ‘reasonable care’.  For example, a person may do something they know is not quite right and hope that nothing bad happens, be really concerned that someone might get hurt and think they have done enough to avoid the injury.  But if their response to the risk was not ‘reasonable’ when assessed against the hypothetical ‘reasonable man’ then they were negligent – they failed to use reasonable care – no matter how much they ‘cared’ about the risk or consequences.

My correspondent says this landowner was not ‘careless’ but I don’t think that means he or she took ‘reasonable care’.  It may mean that they were trying to do the right thing but that is not the legal test.

Contributory negligence

We cannot say what the landowner’s liability may be. It is true that drivers owe a duty to all other road users and must drive to the conditions. If visibility is reduced to 5 metres a driver should be driving at a speed that will allow them to stop within 5 metres.  If there was an initial accident and then two other vehicles ran into the first accident there would be a strong claim for contributory negligence in any action for compensation.  What the outcome would depend on many facts that we don’t know.

In Lobsey v Care it was held there was no contributory negligence by Mr Care (the driver). In that case he was confronted with flame that burst across the road when the fire hit particular vegetation. Moving to the wrong side of the road when the vegetation to your left bursts into flame may be more reasonable than doing so in smoke.  A finding of contributory negligence allows liability to be shared between various tortfeasors.  I can be a complete defence, but again we cannot predict the outcome if this matter should come to litigation without many more facts.

Conclusion

Introducing fire onto the land brings with it a responsibility to protect others from the risk of that fire. When it comes to actual fire the duty is almost absolute (Burnie Port Authority v General Jones).  The liability when it comes to smoke is not so well established, in Southern Properties v DEC liability was not established but the position of the Department during hazard reduction burn for the public benefit on public land is quite different from a farmer doing land clearing on private land.

The facts are very similar, but not identical to Lobsey v Care. In Lobsey’s case the defendant put up on warning to traffic and the road users were exposed to risk from both flame and smoke. But I would suggest the circumstances were sufficiently similar to give a strong argument for liability.

Whether there is liability in negligence, under the Work Health and Safety Act or under the Protection of the Environment Operations (Clean Air) Regulation 2022 (NSW) would depend on what steps the landowner took to mitigate the risk including what steps did they take to know the weather forecast and the potential impact of that weather on the fire and potential smoke and what steps if any did they take to coordinate with relevant road and fire authorities to manage the risk to the community.

We cannot say what the outcome would be in any particular case but the potential for both civil and criminal liability is clearly there.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.