Publication

Duty of Care - Personal Injury and Property Loss Caused by Fire

by Alex Kohn and Bianca Wallace
06 December 2019
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Weber v Greater Hume Shire Council [2019] NSWCA 74

The following NSW Court of Appeal decision highlights the importance of councils and businesses to consider their duty of care and take reasonable care to avoid the risk of personal injury or property loss caused by the escape of a fire. 

Even though the reason for the fire commencing was not known, the NSW Court of Appeal still found that the Council could have taken a number of precautions to avoid the risk of the fire igniting and spreading from their tip , including reducing the vegetation, compacting and covering the waste, and maintaining a firebreak around the tip as these precautions would, on a balance of probabilities, have avoided the damage being incurred. 

Background 

On 17 December 2009, the Riverina fires destroyed 11 homes in Gerogery and Ournie, NSW. During the fires, 2 firefighters were injured and flames were reported to be as high as 30m in the air with fire whirls (known as fire tornadoes) whirled around the area. In 1 day, the fire resulted in damage to 17,000 ha of scorched farmland, 26 sheds destroyed hundreds of cattle and 5,000 sheep dead, 3,000 tonnes of hay and 150km of fencing destroyed. However, the fire luckily did not result in any civilian casualties due to a new emergency alert warning system having been rolled out in the area to alert people of the threat of fire. 

The fire commenced at one of the waste disposal sites (tip) managed by the Greater Hume Shire Council. The fire quickly raced outside of the tip site and reached the towns approximately 11km away within an hour, where Ms Sharon Weber’s house and personal belongings were destroyed by the fire. 

Initial decision

Ms Weber commenced proceedings in the Supreme Court against the Council on behalf of herself and a class of persons, being “all persons who suffered loss and damage to property and personal injury as a result of the fire”. 

Justice Walton dismissed Ms Weber’s claim and found in favour of the Council. However, in doing so the following findings were also made: 

  • The Council owed the plaintiff and the class a duty of care “to take reasonable care to avoid the risk of personal injury or property loss caused by the escape of fire”; 
     
  • Because of the cause of the fire was unknown, the Council could not be found liable for the fire starting, therefore any breach must be focused on factors relevant to the fire escaping the confines of the tip; 
     
  • The Council breached its duty of care by: 
    • failing to prepare + implement a fire management plan; 
    • failing to create + manage an effective fire break; 
    • failing to consolidate waste into appropriate areas; and 
    • failing to remove fuel to prevent dangerous build ups. 
       
  • However despite favourable findings to the plaintiff, the proceedings were dismissed because the plaintiff failed to demonstrate that the Council’s “failure to take the precautions caused the particular harm suffered by the plaintiff. In other words, the plaintiff has not demonstrated that, if the reasonable precautions were sufficiently taken, that the harm caused to the plaintiff by the spread of fire would have been avoided. Hence the plaintiff has failed to show factual causation, namely that the negligence was a necessary condition of the occurrence of harm”. 

Appeal

Ms Weber appealed the decision on the following basis:

  1. Whether causation was established where a sole probable cause of the fire could not be identified, but the likely causes were all due to the Council’s negligence; and 
     
  2. If so, whether a causal link was established between the Council’s failure to take precautions against the risk of fire and the damage suffered by Ms Weber.  

The Council also appealed the decision on the following basis: 

  1. That there was a finding of duty of care for Ms Weber and the class of persons; 
     
  2. That there were findings of breach of the duty of care; 
     
  3. The rejection of the Council’s ability to use the s42 and s43 Civil Liability Act (CLA)defences

Duty of care

The Court of Appeal allowed Ms Weber’s appeal. It upheld that: 

  • Subject to the operation of the CLA, the liability of a landowner with respect to fire escaping from its land depends on the law of negligence; 
     
  • The imposition of a duty of care that extended to those affected by the fire was not inconsistent with the Council’s statutory functions; and 
     
  • The existence of a duty of care to prevent the escape of fire is not a novel proposition, not was the class of persons potentially affected indeterminate. The Court upheld that the Council owed a duty of care to Ms Weber as a person directly affected by the fire. 

Breach of Duty and Council defences 

It was available to Council to take a number of precautions to avoid the risk of the fire igniting and spreading from the tip, including reducing the vegetation, compacting and covering the waste and maintaining a firebreak around the tip.

In considering if the Council breached its duty of care by failing to take the precautions, s42 of the CLA allows the Court to consider the availability of unallocated funds but they are unable to challenge the general allocation of resources made by the Council of the spent funds. 

It was necessary to consider whether the limited resources available to Council meant that those precautions were beyond those which should have been reasonably undertaken. This involves considering the burden of these precautions – in this the Council showed that the tip operated at a loss (which is expected) but there was evidence that the Council received unallocated grants and maintained a waste management fund, for which the actual expenditure prior to the fire was less than the budgeted expenditure. This indicated to the Court that there were ample funds to take all of the identified precautions and there was no evidence that the Council was precluded from doing so (i.e. the s42 defence).

Further the Court found that the Council’s management of the tip was not undertaken pursuant to a special statutory power, therefore general law principles applied and s43 of the CLA was not engaged. 

Causation

The Court found that the most likely cause of the fire was spontaneous combustion, however it was not necessarily satisfied as to the exact cause, given that the only other likely causes were also due to the Council’s negligence, being the lensing effect of glass and arcing of a vehicle battery. 

The relevant question was whether the fire would have escaped from the tip if the precautions had been taken. 

The Court found that if Council has taken those precautions then the fire would have been prevented and if a fire ignited, there would have been an effective way of slowing down the spread that it would, on the balance of probabilities have been contained to the tip. 

By reason of this, Ms Weber established that the Council’s failure to take the reasonable precautions caused the fire to spread and her loss and damage. Ms Weber was awarded $104,400 plus interest and costs.