Weber v Greater Hume Shire Council

1. [1]

   BASTEN JA: Walla Walla is a town in southern New South Wales some 40km due north of Albury. It is in the local government area of the respondent, the Greater Hume Shire Council (“the Council”). As part of its waste management activities the Council operates a number of waste disposal sites; one was on a reserve some 2km south-west of Walla Walla. It had an area of about 4 hectares. At around 1.30pm on 17 December 2009 a fire was observed in the north-west corner of the tip. Fanned by a hot north-westerly to nor-nor-westerly wind, the fire crossed the tip, a distance of approximately 150 metres, and jumped a fire-break on the south side of the tip.

2. [2]

   The fire continued to burn, moving rapidly in a generally south-easterly direction for a distance of 11km, reaching the town of Gerogery about one hour after escaping from the tip site. At Gerogery it destroyed a home occupied by the plaintiff, including her personal possessions. The fire continued past Gerogery and was eventually stopped by a wind change, the arrival of rain and the efforts of firefighters and aircraft. The fire burnt some 5,200 hectares.

3. [3]

   On 15 December 2015, just within the limitation period, the plaintiff commenced representative proceedings in the Supreme Court against the Council, claiming damages on behalf of herself and a class of persons she represented. The class was described as “all persons who suffered loss or damage to property as a result of the fire” and all persons who suffered personal injury (including psychiatric injury) as a result of the fire. Following a trial in April 2017, the primary judge, Walton J, delivered judgment on 14 May 2018, dismissing the proceedings with respect to the plaintiff. [1]

Findings at trial

1. [4]

   In a carefully structured judgment, the primary judge found that the Council owed the plaintiff (and group members) a duty of care expressed in the following terms:

2. [5]

   The judge then turned to the question of breach, noting that, in the language of s 5B of the Civil Liability Act 2002 (NSW), the plaintiff had alleged a number of precautions which she said the Council ought to have taken but failed to take against the risk of harm from fire. They were identified as follows:

3. [6]

   Before dealing with breach, the judge sought to identify the cause of the fire. Being unable to do so, he concluded that the Council could not be liable for the fire starting. In dealing with breach he therefore focused on factors relevant to the escape of the fire from the tip. After addressing the precautions individually, he found breach of duty in the following terms:

4. [7]

   Despite these findings favourable to the plaintiff, the proceedings were dismissed on the basis that, in terms of s 5D(1)(a) of the Civil Liability Act, she had failed to demonstrate that the breaches of duty caused harm to her, the judge, stating:

Issues on appeal

1. [8]

   The notice of appeal raised two issues. First, it alleged that although a sole probable cause of the fire might not have been established, the likely causes were all within the control of the Council and could have been averted had reasonable precautions been taken. Secondly, it alleged there was error in the finding that the plaintiff had failed to establish causation.

2. [9]

   In the event that the appeal were to succeed, the plaintiff sought a judgment in an agreed amount, namely $104,400 plus interest. It would then be necessary to remit the matter to the Common Law Division to deal with the claims of group members. Because the judge dealt only with the plaintiff’s claim and did not finally dispose of the proceedings, the orders appealed from were interlocutory. Belatedly, the appellant sought leave to appeal, which was not opposed and should be granted.

3. [10]

   The issues on the appeal were, however, not limited to those raised by the appellant. The Council filed a notice of contention challenging specific findings of the primary judge which were favourable to the plaintiff. Those findings were identified in 34 paragraphs which, taking into account subparagraphs, identified twice that number of alleged errors. Broadly speaking, the contentions constituted challenges to the findings:

   1. (1)

      that the Council owed the plaintiff a duty of care;

   2. (2)

      that the Council was in breach of its duty of care;

   3. (3)

      rejecting the Council’s defence under s 42 of the Civil Liability Act; and

   4. (4)

      rejecting the Council’s defence under s 43A of the Civil Liability Act.

4. [11]

   The last two sets of contentions were not aptly described as “defences”; the sections identified factors relevant to both the establishment of a duty of care and the question of breach; they will be addressed in those contexts. Because issues relating to causation fell to be determined in accordance with the findings as to the scope and nature of the duty of care, and the basis upon which the Council was found to be in breach of that duty, the hearing of the appeal commenced with senior counsel for the Council addressing the issues raised by the notice of contention. These reasons follow the same order.

5. [12]

   The statutory scheme under which the tip was managed at the date of the fire included the Crown Lands Act 1989 (NSW). That Act was repealed, with effect from 1 July 2018, by the Crown Land Management Act 2016 (NSW), Sch 8. The changes are not relevant to the determination of this case; these reasons address the law in effect in 2009.

Duty of care

1. [13]

   The Council’s challenge to the finding that it owed a duty of care to the plaintiff was said to depend on eight separate errors made by the trial judge. These were that the judge erred (i) in holding that this was not a novel class of case; (ii) in holding that the operation of the tip was a dangerous activity; (iii) in identifying the risk of harm; (iv) in identifying a risk that was reasonably foreseeable; (v) in quantifying the significance of the risk; (vi) in assessing the extent of the Council’s control of the tip; (vii) in identifying the relationship between the Council and the plaintiff, and (viii) in disregarding the indeterminacy of the class of persons to whom the putative duty was owed.

2. [14]

   Underlying these grounds were a number of contestable assumptions. The first was that questions of duty were to be resolved in accordance with general law principles, rather than having regard to the Civil Liability Act. That assumption was incorrect if stated in unqualified terms. The assumption is sometimes taken to follow from statements by the High Court in Adeels Palace Pty Ltd v Moubarak [2] that the heading to ss 5B and 5C of the Civil Liability Act, namely “Duty of care” is “apt to mislead.” [3] After setting out the provisions, the Court noted that both sections “are evidently directed to questions of breach of duty.” [4]

3. [15]

   That conclusion does not, however, mean that the operation of the Civil Liability Act may be disregarded when considering whether, in a particular case, a duty of care is owed to a plaintiff. Thus, ss 5H and 5M deny the existence of a duty of care in circumstances to which they apply (being warning of obvious risks, and liability for recreational activity where a risk warning is given). Further, the Act identifies factors to be considered in determining whether a duty of care arises. Relevantly with respect to public authorities such as the Council, s 42 identifies principles to be taken into account in determining whether a public authority owes a duty of care. [5] Other provisions identify circumstances in which a person “does not incur a liability”, which may be ambivalent as to whether it operates with respect to duty, breach, or both. Furthermore, while factors in s 5B are directed to the question of breach, they may also be relevant to identifying a duty of care.

4. [16]

   A second assumption was that particular principles apply in determining a “novel case”. This may derive from language adopted by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar. [6] If misunderstood, this language is apt to suggest that there is a special approach to be adopted towards novel cases. That would be inconsistent with well-established principle, expressed by Brennan J in Sutherland Shire Council v Heyman [7] in the following terms:

5. [17]

   Importantly for present purposes, the non-exclusive list of “salient features” set out in Stavar at [103] do not include that feature which may be critical in the present case, namely the scope of the statutory duties imposed on a public authority.

6. [18]

   The third assumption behind the Council’s submissions was that a duty defined at a high level of generality should not encompass persons who may be at an undefinable distance and in an unknown direction from the place where the Council’s conduct occurred. Gerogery, where the plaintiff lived, was some 11km from the Council tip; further, had the wind been blowing in a different direction, quite a different group of people and associated property would have been at risk. Yet the duty envisaged by the primary judge appeared to be unconstrained by such considerations and hence, according to the Council, failed to identify a determinate class of persons to whom the duty was owed.

7. [19]

   In the course of oral submissions in this Court, 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. [8] The submissions thus stressed the limiting effect of “indeterminacy” on the extent of the class to whom such a duty would be owed.

8. [20]

   “Indeterminacy”, as a criterion for limiting the imposition of a duty of care was derived from the reasoning of the High Court in Perre v Apand Pty Ltd. [9] It is true that a duty of care should not be imposed by reference to an indeterminate class of persons. Indeed, such a step would undermine the principle that the law does not recognise an abstract duty not to harm any person by one’s carelessness, as opposed to a duty owed to identifiable individuals. [10]

9. [21]

   However, Perre v Apand was a case involving pure economic loss. The defendant in the proceedings was the supplier of seed potatoes to growers in South Australia, some of whom expected to export their crops, or part of their crops, to Western Australia. The seed potatoes supplied to a particular farmer in South Australia were infected by bacterial wilt. The plaintiffs were the owners of surrounding properties. None of their crops were affected by bacterial wilt, but they were unable to export their potatoes to Western Australia because a Western Australian regulation prohibited imports from farms within 20km of a property suffering bacterial wilt. The control devices required with respect to claims for pure economic loss, beyond the element of foreseeability, operate somewhat differently from the constraints on identifying a duty of care in cases of personal injury or physical damage to property. Further, as noted by Hayne J in Perre v Apand, the concept of “indeterminacy” means more than that the class is large or extensive, but rather that the persons who may fall within it cannot readily be identified. [11]

10. [22]

    Nevertheless, in Electro Optic Systems Pty Ltd v State of New South Wales (Canberra Bushfires Case) [12] a Full Court of the ACT Supreme Court considered the scope of a duty said to be owed to a class described as “those persons who may suffer loss and damage from the spread of fire, in NSW or, in this case, the ACT”. Jagot J stated:

11. [23]

    This reasoning was reflected in the Council’s submissions in the present appeal. However, it is fallacious to argue that a duty of care cannot arise if the members of the class to whom it is owed cannot be identified before the harm eventuates. There is no doubt that a motorist owes a duty of care to other road users; on the other hand, the membership of that class will be constantly changing. The same may be said of a manufacturer of bottled ginger beer and the manufacturer of chemicals who allows a polluting substance to leach into a groundwater system.

12. [24]

    If it were necessary to be able to predict in advance who might be affected by a wild fire, it is doubtful that any duty of care would arise. Yet, as explained by Windeyer J in Hargrave v Goldman, [13] 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.” [14] Windeyer J continued: [15]

13. [25]

    It follows that, in so far as the Council (correctly) conceded that it owed a duty of care to landowners in the proximity of the tip with respect to the escape of fire from the tip, the question of remoteness was to be assessed as an element in considering (i) the precautions which should be taken (pursuant to ss 5B and 5C of the Act), (ii) whether factual causation was established and, if so, (iii) whether it was appropriate for the scope of the negligent person’s liability to extend to the harm so caused, pursuant to s 5D(1)(b).

14. [26]

    A fourth assumption concerned the relevance of the proposition that the operation of a waste tip was a “dangerous activity”. The question whether the operation of the tip was correctly characterised as a dangerous activity depended on the legal significance of that characterisation.

15. [27]

    In Burnie Port Authority v General Jones Pty Ltd [16] the High Court identified two propositions of law which are significant in the present context. The first was that “any special rule relating to the liability of an occupier for fire escaping from his premises has been absorbed into, and qualified by, more general rules or principles.” [17] Secondly, the principle commonly sourced to the English decision of Rylands v Fletcher, [18] as with special rules relating to fire, “should now been seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence.” [19] It follows that there is no separate principle depending on a finding that a dangerous substance has escaped from premises, or a dangerous activity has been carried on on premises, which has caused harm to the plaintiff. The nature of the substance or the activity may well affect the standard of care required of the occupier, and may give rise to a non-delegable duty of care. [20] That analysis, nevertheless, takes place within the confines of the law of negligence. It therefore follows that, so far as presently relevant, it will be governed by the Civil Liability Act.

16. [28]

    Consistently with this approach, the liability of public authorities in negligence, and the relevant control mechanisms, are addressed in Pt 5 of the Civil Liability Act. As noted above, s 42 deals with the approach to be taken with respect to the financial and other resources that were reasonably available to the Council for the purpose of exercising its functions. Although s 42 expressly applies to a determination that a public authority owes a duty of care, the Council’s reliance upon its operation was directed to questions of breach; that appears to be correct in the circumstances of this case and the section will be addressed in that context.

17. [29]

    Subject to one qualification, a public authority will owe duties of care in carrying out its statutory functions. The qualification is that a common law duty of care cannot be imposed if it would conflict with the statutory scheme under which the respondent operates. So much was explained in Caledonian Collieries Ltd v Speirs, [21] which involved liability for a collision at a level crossing between runaway rail trucks and the respondent’s motor vehicle. The railway was constructed under statutory authority. Upholding the liability of the appellant railway operator, the majority in the High Court stated: [22]

18. [30]

    This principle was restated more recently in Sullivan v Moody, [23] the High Court stating:

19. [31]

    An inconsistency between a statutory power and the imposition of a common law duty of care in its exercise, may arise not merely from the language of the statute in question, but also from the nature of the power being conferred. It is therefore necessary to consider the nature of the Council’s interest in the land and the statutory provisions governing its use of the land.

20. [32]

    The tip, with an area of 10 acres, was created on Crown land reserved from sale on 24 September 1913, “for night-soil and rubbish depot”. [24] On 11 November 1994 the reserve trust was dissolved and a new reserve trust created under s 92 of the Crown Lands Act 1989 (NSW). [25] The trust was named Culcairn Shire Council Crown Reserves Reserve Trust (“Reserve Trust”) and the Culcairn Shire Council was appointed trustee and “charged with the care, control and management” of the reserve. [26] (The trustee was later changed to the respondent, when the respondent replaced Culcairn Shire Council as the local government authority for the area including the tip.)

21. [33]

    The Reserve Trust was constituted as a corporation under s 92(2) of the Crown Lands Act and had all the functions of a council under the Local Government Act 1993 (NSW) in relation to public reserves. [27] The Reserve Trust was, for the purposes only of Pt 5 of the Crown Lands Act, the owner of an estate in fee simple in the reserve. [28] It therefore had the powers of a landowner, but qualified by the purpose for which the estate was conferred. [29]

22. [34]

    Turning to the provisions of the Local Government Act, s 24 empowers a council to provide such services and facilities and carry out such activities as are appropriate to the current and future needs of the local community. As the introductory notes to Ch 6 of the Local Government Act indicate, that will extend to waste removal services. It was not submitted that there was anything in the Crown Lands Act or Local Government Act which otherwise constrained the manner in which such services should be provided. Further, although there are licensing requirements with respect to “waste disposal” and “waste storage” under the Protection of the Environment Operations Act 1997 (NSW) (“Protection of the Environment Act”), it was common ground that those provisions did not apply to the Council with respect to the Walla Walla tip because of the limited nature of the operations at the tip. [30] (Although it would appear that the Reserve Trust was a statutory corporation representing the Crown in right of New South Wales, no proceedings were taken against the State pursuant to the Crown Proceedings Act 1988 (NSW).)

23. [35]

    There is a long history of statutory controls of fire on land in this State. More than 100 years ago, Parliament enacted the Careless Use of Fire Act 1912 (NSW). Whilst imposing controls with respect to the use of fire on occupiers of land, the Act preserved “the right of any person to sue for and recover, at common law or otherwise, compensation for or in respect of any damage or injury occasioned by the reckless or negligent use of fire.” [31] That legislation has been repealed and replaced, the current provisions being found in the Rural Fires Act 1997 (NSW). Relevantly, that Act provides:

24. [36]

    Further, controls are imposed on any person, including a public authority, lighting fires. However, special rules apply to a public authority:

25. [37]

    Reference was made in the Canberra Bushfires Case to the operation of s 63. Jagot J (Murrell CJ and Katzmann J relevantly agreeing) held that s 63 was concerned with circumstances before a bushfire started. [33] That case was concerned with fires started by an electrical storm and allegations of negligence on the part of the Rural Fire Services, and the State through the actions of its “incident controllers”, in attempting to subdue and extinguish the fires. Reliance by the claimants on s 63 was held to be misplaced. By contrast, s 63 imposes duties which are engaged in the present case. However, there was no claim in the present case for damages based on a breach of statutory duty, as opposed to a breach of a common law duty of care. Nevertheless, the statute demonstrates that there is no inconsistency in principle between the proposed common law duty of care and the statutory functions exercised by the Council.

26. [38]

    The Council raised an issue as to the scope of the duty, and thus the persons to whom it was owed, by reference to the weather conditions on the day in question. It was, as described by the trial judge, a day of “extreme” fire danger. [34] At about the time the fire was first observed, the weather station at Albury Airport (33km south of the tip) recorded a temperature of 38.6ºC, 11% humidity and nor-nor-west winds at 35kph with gusts up to 54kph. An hour later (2.32pm) the conditions were almost identical; however, 14 minutes later (2.46pm) the temperature had dropped to 29.3ºC, but the winds had increased to 76kph with gusts up to 107kph.

27. [39]

    The Council did not suggest that, although it was a day of extreme fire danger, the conditions were unexpected in December. It is to be recalled that there is a statutory “bush fire danger period” in New South Wales which commences on 1 October of any given year and ends on 31 March in the following year. [35] The risk was undoubtedly foreseeable and significant.

28. [40]

    There must also be a reasonable expectation that a fire would travel fast in such conditions. To the south of the tip lay a disused golf course, with long grass, beyond which were farmlands. Once it escaped from the tip, the risk of the fire travelling to Gerogery (11km) and beyond could not be described as other than foreseeable. If support were needed for such a conclusion, it might be found, at least by inference, in the power conferred on an authorised fire fighting officer to enter land within 8km of the land for which the officer is responsible, in order to suppress or prevent the spread of a bushfire from that land. [36] One local resident who saw the fire at the tip immediately rang a friend in Gerogery to warn him. Given the well-understood propensity of a fire to spread across lands covered with trees and dried grass in hot windy conditions, there is no reason to limit the duty of care of the Council to an area less than that covered by the fire in question.

29. [41]

    The Council itself carried out burning operations at the tip in appropriate conditions to reduce the load of green waste and thus reduce the risk of fire. Indeed, the fact that there was a firebreak surrounding the tip was an acknowledgment of the possibility that a fire at the tip, if not contained, would cause damage to surrounding lands.

30. [42]

    The Council’s challenge to the finding that it owed a duty of care to persons in the position of the plaintiff who lost property as a result of the fire must be rejected.

Standard of care: s 43A

1. [43]

   Before addressing issues of breach, it is necessary to identify the standard of care required of the Council. The Council sought to invoke the high level of unreasonableness prescribed by s 43A of the Civil Liability Act, which provides as follows:

2. [44]

   The first issue is whether s 43A is engaged in the present case. That involves two steps.

3. [45]

   The first step is to identify the basis of the liability relied on by the plaintiff. That liability depended upon the failure of the Council to undertake identified precautions in the management of the tip. Those precautions included grading an appropriate firebreak around the tip, reducing the fuel load within the tip by levelling areas and removing long grass, and, with respect to the general waste dump, compacting the dump and covering it with soil from time to time.

4. [46]

   The second step is to determine whether these activities involved the exercise of a power conferred by statute, of a kind that persons generally are not authorised to exercise without specific statutory authority.

5. [47]

   On the one hand, it might be said that councils, as creatures of statute, have no powers other than those expressly or impliedly conferred by statute. However, there is a distinction to be drawn between activities which are reliant for their lawfulness on a statutory power and those which can be undertaken in accordance with the general law. [37] Such a distinction, important for determining the extent of a statutory immunity from suit, [38] was noted by Campbell JA in Refrigerated Roadways. [39] Thus, a council officer requires no statutory authority to drive a vehicle on a public road beyond the licensing requirements applicable to all drivers; whereas statutory authority is required for the erection of signs along a roadway, an activity which is prohibited except by or with the consent of the relevant roads authority. In the present case, the steps required to be taken on the tip were steps which could readily be taken by the owner or a person having management of the land for waste disposal purposes, without any specific statutory authority.

6. [48]

   The same reasoning would operate with respect to s 48 of the Local Government Act, which confers powers of control on the Council with respect to public reserves. That provision conferred no specific authority with respect to conduct on the reserve, although the creation of the reserve would have restricted the activities which the Council could undertake on the land.

7. [49]

   A third possibility is that the exercise by the Council of waste management functions might be governed by the licensing provisions of the Protection of the Environment Act. Again, it may be doubted that the conferral of authority to use the land in a particular way pursuant to a licence would engage a power with respect to the precautions identified above. The point need not be considered further, as it was common ground that the licensing requirements under the Protection of the Environment Act did not apply to the Walla Walla tip.

8. [50]

   It follows that the precautions which the Council failed to undertake, upon which the liability identified above was based, did not involve the failure to exercise any special statutory power conferred on the Council. Accordingly, s 43A, and the special standard of care which it imposed, was not engaged in the present case.

Breach of duty – legal principles

1. [51]

   On the basis 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, it is then necessary to identify the precautions which a reasonable person in the Council’s position would have taken to prevent the harm materialising.

2. [52]

   For this purpose, regard must be had to the matters identified in ss 5B and 5C of the Civil Liability Act, which provide:

3. [53]

   The risk of harm, the foreseeability of the risk, and whether the risk was not insignificant, have all been addressed in the preceding discussion with respect to duty. It must be accepted that the likely seriousness of the harm from an escaped fire was unpredictable but potentially very serious. Uncontrolled bush fires in south-eastern rural Australia are an annual occurrence; they may involve loss of life, the destruction of property and significant environmental damage.

4. [54]

   Section 5B(2)(d) requires that the court assessing the relevant precautions have regard to the “social utility” of the activity that creates the risk of harm. The plaintiff did not submit that the tip should have been closed because of the risk of fire. Accordingly there was no need to assess the consequences of such a step, although it was in fact taken following the fire.

5. [55]

   Importantly in this case, s 5B(2)(c) requires the Court to consider “the burden of taking precautions to avoid the risk of harm”. In undertaking that task, the court must consider the burden of taking precautions to avoid similar risks of harm for which the defendant may be responsible: s 5C(a). In the case of a public authority, there will often be a range of precautions which can be taken to minimise the risk of harm, at varying levels of cost to the authority and hence to the community. A reasonable council would assess the burden of particular precautions against the likely cost (not merely financial) of an escaped fire.

6. [56]

   In addressing the burden of taking precautions, regard must be had to the terms of s 42 of the Act, which provides:

7. [57]

   The following terms are defined in Pt 5 of the Act, which covers ss 40-46:

8. [58]

   Generally speaking, the principles identified in s 42 will be relevant to the question of breach of duty, and probably less relevant to the existence of the duty. It is in the context of breach that s 42 is engaged for present purposes. However, there are a number of difficulties in applying that provision.

9. [59]

   The drafting of s 42(a) is awkward. It is surely the resources available for the exercise of functions which are limited, not the functions themselves. The section appears to have been so understood in the cases discussed below. No alternative reading was proposed in this case.

10. [60]

    The Council contended that the burden of taking precautions (for the purposes of s 5B(2)(c)) was to be assessed by reference to “the broad range” of the Council’s activities, as “the functions required to be exercised by the authority”: s 42(c). The Council read s 42(c) as requiring regard to be had to fire precautions on all land owned, managed or controlled by the Council across the 6,000 square kilometres of its local government area. This construction was said to gain support from the identification of the burden in s 5C(a) as including the burden of taking precautions to avoid “similar risks of harm” for which the Council may be responsible. It submitted that the risk of harm thus identified is the risk of escape of fire from any (and thus all) lands owned, occupied or controlled by the Council.

11. [61]

    In one sense, that reading imposed a contextual limitation on the general language of s 42(c), because it limited the inquiry to the necessary precautions to address a single risk of harm, rather than “similar risks of harm”, as described in s 5C(a). Nevertheless, it also had the potential to expand significantly the scope of inquiry required in any negligence claim involving a public authority, beyond the circumstances of the plaintiff’s case.

12. [62]

    The problems raised by the combined operation of ss 5B(2), 5C and 42 do not end there. In assessing the burden of particular precautions, the court is required to work on the principle that the performance of the duty of care is “limited by the financial and other resources that are reasonably available to [the Council]”: s 42(a). On one reading, the court is permitted (or required) to consider what resources are “reasonably available” in the particular case. However, that exercise is constrained by the principle that “the general allocation of those resources by the authority is not open to challenge”: s 42(b). This meant, the Council submitted, that the resources available to manage the tip were those in fact allocated by the Council in its budget. It was not open to the Court, the submission continued, to consider whether other funds available to the Council could reasonably have been allocated to meeting the cost of any necessary precautions.

13. [63]

    Given a degree of obscurity in establishing a coherent operation of these provisions, reference may be made to relevant extrinsic material. Broadly speaking, the Civil Liability Act gave effect to the Review of the Law of Negligence – Final Report (September 2002) (“Panel Report”). [40] Chapter 10 of the Panel Report, headed “Public Authorities”, addressed “the principles applied in negligence to limit the liability of public authorities.” The problem was identified in the following terms:

14. [64]

    The tension created by the requirement to have regard to available resources and the consequent need to assess what resources were available had been identified in Brodie v Singleton Shire Council. [41] That case involved a challenge to the general law principle that a road authority was not liable for nonfeasance, that is, for not repairing a defective roadway. Gleeson CJ (in dissent) noted the following consideration as weighing against the abandonment of the rule and the imposition of a duty to repair.

15. [65]

    Implicit in that statement was the possibility that a roads authority should be able to justify its inactivity on the basis of its limited resources. So much was accepted by the majority in rejecting the general law immunity from liability for nonfeasance. The joint reasons of Gaudron, McHugh and Gummow JJ, noting that the change in the law would not subject roads authorities to “indeterminate financial hazards”, said that “financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care.” [43] However that step, as noted by Lord Hoffmann in Stovin v Wise, [44] “would inevitably expose the authority’s budgetary decisions to judicial inquiry.” There would be consequences, identified by Lord Hoffmann in the following terms: [45]

16. [66]

    In fact, this dilemma applied generally with respect to the exercise by public authorities of functions which were not the subject of a relevant immunity from the consequences of inaction. On the one hand, they should be allowed to justify their inaction on the basis of limited resources; on the other hand, they should not, by taking that course, expose their resource allocation decisions to judicial review. Part 5 of the Civil Liability Act, and in particular s 42, was a legislative response to that dilemma. [46]

17. [67]

    The remedy proposed was to make a good faith decision by the Council about the allocation of resources unchallengeable on a negligence claim; not to prevent the Council relying upon such a decision. That approach adopted a principle explained by Mason J in Sutherland Shire Council v Heyman in the following terms: [47]

18. [68]

    The Panel Report identified a passage in the joint reasons of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council [48] as leading to “some undesirable consequences that need to be addressed.” [49] The troubling passage suggested that, in considering whether the authority had taken reasonable steps in the discharge of its duty of care, regard should be had to “any other competing or conflicting responsibility or commitments of the authority.” The problem, however, was not that the authority should be entitled to rely upon competing claims for resources, but rather that its decisions with respect to its allocation of resources should not be open to be questioned. The Panel Report concluded:

19. [69]

    Despite these propositions, the Panel did not recommend that such policy decisions would “give immunity from liability.” [50] Rather, it adopted a standard that where the alleged negligence consisted of the exercise of a public function and the authority pleaded that its failure to take appropriate precautions was the result of a decision about the allocation of scarce resources, “liability can be imposed only if the decision was so unreasonable that no reasonable authority in the defendant’s position could have made it.” Thus, while the proposed standard of unreasonableness was to be raised to a high level, the issue was not sought to be removed from the scope of a negligence claim.

20. [70]

    The recommendation made by the Panel, however, reversed that language so that, instead of referring to what was in substance a defence, it referred to a claim based on the negligent performance of a public function, the principle being expressed in the following terms: [51]

21. [71]

    This recommendation was potentially difficult to apply because a standard claim in negligence, such as the present one, does not plead a “policy decision” to support a finding of negligence; rather, it identifies a precaution which might have been taken to avoid a specific risk of harm. Part 5 of the Civil Liability Act did not adopt the Panel’s recommendation 39, which invoked the concept of a “policy decision”, but rather applied the high standard (so unreasonable that no reasonable authority could have so acted) in relation to the exercise of “special statutory powers”: s 43A. It then created a new provision with respect to the allocation of resources, now found in s 42. Thus, while the broad thinking behind the Panel Report can be seen in the language of s 42, the Report itself provided no direct assistance in understanding the inter-relationship of ss 5B, 5C and 42.

22. [72]

    The question is whether s 42 was intended to reflect the principle explained by Mason J in Heyman, or qualified it in some respect. It seems unlikely from the legislative history that s 42 was intended to expose public authorities to greater liability than they had previously faced. The better view is that it was intended to encapsulate the existing immunity, but did so in terms which failed to reflect the rationale underlying the principle.

23. [73]

    The operation of s 42 of the Civil Liability Act (and equivalent provisions in other jurisdictions) has been considered in a number of cases. It is inevitable, however, that statements as to the operation of the provision will tend to reflect the nature of the particular case, the evidence adduced at trial and the manner in which each party presented its case. The judgment most commonly cited in subsequent authorities is Refrigerated Roadways. [52] The facts involved the death of an employee of Refrigerated Roadways caused by four men dropping a block of concrete from an elevated bridgeway (Glenlee Bridge) over a freeway, which smashed through the windscreen of a truck on the freeway, causing the death of the driver. The issue was whether the roads authority (RTA) was negligent in failing to construct screens along the overhead bridge to prevent objects falling (or being dropped or thrown) from the bridge onto the freeway below.

24. [74]

    With respect to s 42(a), Campbell JA noted that the RTA had a budget for the care, control and management of freeways which was “so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget.” [53] Secondly, Campbell JA held that s 42(b) was not engaged to the extent that the claim concerned “the allocation of resources that the RTA had actually allocated to bridge screening”, on the basis that such a challenge would not be a challenge to the “general allocation of resources reasonably available to the RTA”, for the purposes of s 42(b). [54]

25. [75]

    Given these findings, other aspects of the analysis of s 42 were not necessary for the determination of the points in issue.

26. [76]

    For example, Campbell JA assumed that “s 42 is a matter that a defendant must plead”. [55] Although a defendant may be well advised to plead the facts and the inferences it seeks to draw for the purposes of s 42 from any relevant facts, the most important matter is the burden, at least with respect to adducing evidence, of the relevant factual material. Section 42 is not expressed in language creating a defence. This is consistent with the later statement in Refrigerated Roadways that “s 42 deals quite generally with the way one should proceed in deciding whether a public or other authority has a duty of care or has breached a duty of care”. [56]

27. [77]

    Secondly, Campbell JA construed the expression “functions required to be exercised” by the authority as referring to the requirements of the law of negligence. That was to be compared with a “requirement in the nature of a statutory duty”. [57]

28. [78]

    This reading is open to doubt. The implication is that par (a) should have read “the precautions required to be taken against a risk of harm in the exercise of any function of the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of complying with its duty of care”. That is not what par (a) states; a similar displacement of the language would be required also with respect to par (c). This construction of the “functions” referred to in pars (a) and (c) tends to limit the expansive definition of “function”, and “exercise” of a function, in s 41. There is a further reason for doubting its correctness: it would make little sense to identify the legal standard of taking reasonable care as a principle to be applied in determining whether there is a duty of care.

29. [79]

    The fact that “the functions required to be exercised” are stated, in par (c), to be determined by reference to the broad range of the authority’s activities suggests that the function, in the present case, is waste management.

30. [80]

    Thirdly, Campbell JA stated that “s 42 presupposes the existence of the law of negligence” and “is in the nature of a supplement or corrective to the pre-existing law of negligence, not a replacement for it or any part of it.” [58] This statement is not entirely consistent with the approach adopted above. On the one hand, to the extent that the determination of the existence of a duty of care is a matter for consideration under the common law, s 42 must be applied in its terms. On the other hand, so far as it applies with respect to determination of a breach of duty, it must be read coherently with ss 5B and 5C of the Act. That appears to be the approach adopted by Sackville AJA in Refrigerated Roadways in the following passage:

31. [81]

    Fourthly, Campbell JA considered that it was open to the Court, without undertaking a challenge to the “general allocation” of resources by the RTA, to consider a negligent exercise of its functions in fixing priorities for the allocation of its resources with respect to the construction of screens along overpasses on freeways. [59]

32. [82]

    There is no doubt that the scope of the phrase “the general allocation of those resources” is unclear. On one view, s 42(b) and (c) are directed squarely to the constraining effect of the imprecise dichotomy between policy and operational decision-making referred to by Sackville AJA in the passage set out above. [60] There would be a difficulty in abandoning this distinction whilst preserving the ability of a public authority to rely upon its limited resources.

33. [83]

    Although it is true that the passages considered above in Refrigerated Roadways were cited with approval by this Court in Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson, [61] it was only in support of the proposition that evidence was required before the Court could engage with the principles in s 42. The present considerations were immaterial in that context.

34. [84]

    More directly on point was the decision in Holroyd City Council v Zaiter. [62] Those proceedings involved a claim by a child who had ridden a bicycle into a concrete drainage channel at a sports ground controlled by the appellant Council. The Council was aware of the risk and had, prior to the accident, identified the desirability of a fence along the channel to prevent such an accident. The Council called evidence as to the limited financial resources available to it in order to resist a finding that it was in breach of its duty of care. The Council failed for three reasons. [63]

35. [85]

    The first reason involved a denial of the proposition that there could be a challenge to the allocation of funds for improvements to the sports ground, such a step being contrary to s 42(b). After setting out a lengthy passage from the reasoning of Campbell JA in Refrigerated Roadways, Hoeben JA stated:

36. [86]

    The second basis in Zaiter for rejecting the Council’s reliance upon s 42 was that the decision of the Council, as recorded in a documented policy, was that the revenue from the particular source was to be directed solely to the sports ground, but not that it would be the only source of revenue for the sports ground. [64] (That reasoning has application in the present case.)

37. [87]

    The third ground was that the financial statements of the Council in evidence revealed that “ample funds were available within various general allocations to pay for this fence”. Alternatively, at best for the Council, the evidence failed to show that funds were not available.

38. [88]

    The second two grounds (based on the evidence) would have been sufficient to dispose of the appeal on this point, and appear to have been the only grounds relied upon by Emmett JA. [65] The first ground depended upon a narrow construction of s 42(b), namely that the “general allocation” of resources by an authority is to be understood, either as the separate functions of the authority identified by its activities, or according to the characterisation of the separate functions in such financial statements of the authority as are in evidence.

39. [89]

    There is an available alternative approach to the statutory language. If “general” in relation to an allocation of funds is intended to be contrasted with “specific” allocations, the purpose of the provision is obscure. If, as explained by Mason J in Heyman, and by the reasoning in the Panel Report, the purpose is to exclude from judicial review in a tort claim financial decisions based on policy grounds, the distinction between general and specific policy decisions is misconceived.

40. [90]

    The better understanding of s 42(b), consistently with its underlying policy, is that the Council may rely upon the limited resources available to it based on evidence that, at the relevant time, there were insufficient (or no) funds which had not been allocated to other purposes. If the evidence did establish that situation, the plaintiff would be precluded from challenging the basis of the allocations. No such issue arose in Zaiter; nor did it arise in Refrigerated Roadways.

41. [91]

    The decision of the Council in Zaiter was located in the minute of a Council motion which commenced: [66]

42. [92]

    The proposition in Refrigerated Roadways that a court could consider whether the authority had “made careless factual errors in the way it prioritised overpasses for screening”, so that absent such errors the bridge in question would probably have been screened before the incident occurred, would only have arisen “if” that allegation had been made. [67] The reasoning in Refrigerated Roadways was based on a hypothetical pleading.

43. [93]

    Whether these dicta in Refrigerated Roadways should be followed should await a case in which the answer will be dispositive. In this case, as in Zaiter’s case, the evidence did not disclose that there were insufficient unallocated funds to undertake the relevant precautions at the tip, as discussed below.

44. [94]

    Against this background, it is convenient to reconsider the operation of the provisions of the Civil Liability Act set out above. The following propositions may be accepted.

45. [95]

    First, the requirement in ss 5B(2)(c) and 5C(a) that the court consider “the burden of taking precautions” refers, in relation to a public authority, to the allocation of necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c).

46. [96]

    Secondly, that assessment must take into account the additional burden which would be required to avoid “similar risks of harm” in other activities conducted by the authority: s 5C(a).

47. [97]

    Thirdly, in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are “limited”: s 42(a). That is not to say that the court cannot find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff’s case, is undertaken in accordance with s 5C(a).

48. [98]

    Fourthly, the reference to “functions required to be exercised by the authority” in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). 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.

49. [99]

    Fifthly, the court is not permitted to allow a plaintiff to “challenge” the general allocation of “those resources”, being the resources that are reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities identified in s 42(c). There is, of course, no reallocation of resources as a result of the court’s order; rather, the defendant authority will be required to pay damages to compensate the plaintiff’s loss. What is prohibited, however, is the conclusion that additional resources should have been made available, although they had, at the relevant time, been allocated to the exercise of other functions.

50. [100]

    Sixthly, 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.

51. [101]

    If this understanding of the operation of s 42 (read in the context of ss 5B and 5C) is correct, it is less likely, in comparison with a broader reading, that its application will disrupt the efficient disposal of the plaintiff’s negligence claim. In any event, the purpose of s 42(b) is to prevent, rather than encourage, the tender of large volumes of accounting material by a public authority, as occurred in the present case.

52. [102]

    Thus, the Council tendered evidence at trial from its general manager, Mr Steven Pinnuck, and an officer involved in preparing Council’s accounts, Mr David Smith. Their statements annexed or exhibited more than 1,400 pages of financial reports. Of those, fewer than 250 were included in the appeal books. Even when questioned by the Court, a very small proportion even of those pages were referred to in the course of submissions.

53. [103]

    The trial judge gave detailed consideration to the issue of breach, including a thorough explanation of the submissions of the parties and the relevant evidence, both lay and expert. [68] He identified the precautions particularised by the plaintiff, as set out at [5] above, but restricted his consideration to those relevant to the spread of an existing fire. He approached the issue of breach on that basis because he was unable to identify the cause of the fire. The primary judge noted (and rejected) submissions by the Council before him as to how the statutory scheme operated:

54. [104]

    The Council challenged that approach in this Court, [69] submitting in writing: [70]

55. [105]

    Further consideration of these issues should await identification of the precautions which should be accepted as precautions which, in principle, a reasonable council should have considered. With those precautions in mind, it will be possible to address the likely financial and other resources involved and the evidence as to the availability of those resources.

Breach of duty – specific precautions

1. [106]

   Questions of breach of duty and causation involve factual determinations in the circumstances of a particular case. They are addressed separately and discretely because questions of breach require a prospective assessment of what a reasonable council would have done in the circumstances which existed prior to the fire, whilst causation involves a retrospective assessment of whether the breach of duty caused the harm suffered by the plaintiff. Nevertheless, each will inform the other. There is no reason to consider a complaint of failure to take a specific precaution if the precaution could have had no effect on the outcome. Thus, particular (e) (having fire-fighting equipment available at the tip) was simply irrelevant. As the trial judge noted, by the time those seeking to fight the fire arrived, it had crossed the tip and was about to escape. Furthermore, those who attended had their own fire-fighting equipment. [71]

2. [107]

   The trial judge accepted that the reasonable precautions which should have been taken were to have a fire management plan (particular (a)), to create and maintain an effective fire-break (particular (b)), to consolidate deposited waste in appropriate areas (particular (c)), and to remove fuel to prevent dangerous build-ups (particular (d)). [72] The last three factors were, in one sense, encompassed within the first precaution, namely the preparation and implementation of a fire management plan. [73] It will be convenient to address them separately from the proposed plan.

3. [108]

   The trial judge rejected inspection and monitoring of the facility during periods of extreme bushfire risk (particular (f)) as not having been shown to have any causal connection with the outbreak or spread of the fire. [74] That finding was not challenged and, as with particular (e), no further attention need be paid to it. The other precautions (particulars (g)-(j)) were identified by the trial judge as relevant to ignition, rather than the spread of the fire. The trial judge concluded that he was unable to determine the cause of the fire and, as a result, disregarded those precautions which went to preventing ignition.

4. [109]

   The plaintiff raised four grounds of appeal. Grounds 1 and 2 challenged the failure of the trial judge to identify a relevant cause of ignition and thus the failure to find that the fire was caused by the Council’s negligence. Grounds 3 and 4 challenged the judge’s finding that even had the precautions relied upon by the plaintiff been taken prior to the fire, the fire would nevertheless have escaped from the area of the tip and the failure to take precautions against the escape of the fire was therefore not a relevant cause of the harm suffered by the plaintiff.

5. [110]

   It may thus be seen that there are two broad issues raised by the appellant on the appeal; if she were to succeed in establishing error in relation to the spread of the fire, it would follow that she had established a relevant causal connection between precautions designed to minimise the spread of the fire and the harm suffered. That is, she would succeed on grounds 3 and 4. In that event, grounds 1 and 2 would not need to be addressed. Nevertheless, the ignition issue arises before any question as to the spread of the fire and it is necessary in any event in considering the spread to identify where ignition took place and how it may have come about. Accordingly, it is convenient to address, and address first, the question of ignition (grounds 1 and 2).

6. [111]

   The Council sought to uphold the finding of the trial judge that the cause of ignition is simply unknown, and therefore cannot be identified as the responsibility of the Council. It further supported the finding as to causation, namely that the fire would have escaped in any event and any negligence on its part did not cause the harm suffered by the plaintiff. However, by its notice of contention, it also challenged the findings of negligence with respect to the specific precautions upheld by the trial judge.

7. [112]

   The trial judge dealt with the cause of the fire at some length. [75] He commenced with his conclusions:

8. [113]

   The remainder of the discussion explained, sequentially, why each of the six possible causes was not established on the balance of probabilities. However, the appellant submitted that the correct approach would have separated the potential causes into two groups, namely those which could have eventuated from negligence on the Council’s part and those which could not. Those which could not include dry lightning and the act of an arsonist. Dry lightning depended upon particular meteorological conditions which simply did not exist. [76] Arson was a theoretical possibility, but there was no acceptable evidence of any person in the vicinity of the tip at the relevant time, let alone a person who might commit arson. It was dismissed as an entirely theoretical possibility. [77]

9. [114]

   That left four possibilities, all of which depended upon conditions within the tip. These were (i) spontaneous combustion, (ii) residual burn, (iii) an arcing battery and (iv) the lensing effect of glass in dry material. If the cause of the fire was probably one of the potential causes which should not have occurred, absent negligence on the part of the Council, the Council can be held responsible for the ignition.

10. [115]

    The Council argued that this approach was inconsistent with the reasoning of the High Court in Lithgow City Council v Jackson. [78] Mr Jackson suffered severe head injuries whilst walking his dogs, late at night and whilst inebriated, in a park managed by the Council. He was found at the bottom of a large, broad concrete drain. The trial judge found that Mr Jackson had not established that he had fallen over a vertical face, as distinct from stumbling down one of the sloping sides. [79] The possibility that he had stumbled down the sloping side was consistent with Mr Jackson being aware of the presence of the drain and failing to negotiate it safely. Accordingly the question was whether he had established a fall in circumstances where he had not seen the drain, which was unmarked and unguarded. There were, thus, two hypotheses, one consistent with negligence on the part of the Council, the other not. It was necessary for the plaintiff to establish on the balance of probabilities the event consistent with negligence. Neither the finding nor the reasoning of the High Court suggested that, if both reasonable possibilities had been consistent with negligence on the part of the Council, the plaintiff would still have lost if he could not establish which eventuated.

11. [116]

    The appellant’s approach should be accepted, so long as the possible causes could be characterised as dependent on a breach of duty by the Council. For this purpose, conduct should not be narrowly compartmentalised; indeed, as will appear below, there was no clear dichotomy between steps necessary to prevent ignition and steps necessary to prevent a fire spreading.

12. [117]

    Of the four possible causes, (ii) was readily dismissed, namely, a flare up of an incompletely extinguished earlier fire (or possibly an unextinguished cigarette butt), referred to as a “residual burn”. [80] While the Council had carried out a controlled burn to dispose of green waste some two months before the bush fire, there had been rain and regular attendance at the tip of both Council employees and persons dumping waste since that time, and no indication of any unextinguished fire. There was no evidence of the dumping of incompletely burned material which might still be alight. The trial judge readily dismissed this as merely a theoretical possibility; no challenge was made to this finding on the appeal. [81] It is therefore sufficient to focus on the precautions relied on by the plaintiff which might have removed the risk of spontaneous combustion, arcing of a battery or the lensing effect of glass.

13. [118]

    Although the actual point of ignition was unknown, the descriptions by the first persons to see the fire located the ignition point in the north-west corner of the tip. As indicated by the aerial photograph which is annexure “A” to these reasons, and has been marked (as it was in evidence) with an indication of where dumping of particular matter occurred, it may be inferred that the fire started on the north-western side of the large area identified as “general waste” and described as “the bund”.

14. [119]

    The plan of the tip indicated the categories of waste which, according to the management of the tip, were meant to be separated. Thus “glass” was located to the left as one entered the tip, in the north-eastern corner. Green waste was located in the centre of the tip, towards the southern boundary. It is clear that the fire did not start in either of these locations; evidence of contamination of green waste was therefore irrelevant. However, the Waste Management Strategy prepared in 2004 stated, in relation to Walla Walla tip, that “[w]astes have been dumped at the landfill in inappropriate areas and often mixed loads.” Further, it was said that “the level of waste separation and the attention to detail and professionalism being shown by the current recycling contractors/waste facility supervisors is very poor.” These issues were not addressed in the 2007 strategy, which identified the “life expectancy of the facility” as “no more than five years.” The judge concluded that the same problems existed at the date of the fire, based on photographs taken on 1 October 2009 and the evidence of two witnesses as to the state of the tip. [82] The judge concluded that there was “contamination of waste” and further that the defendant was in that respect in breach of its duty of care. [83] It is not clear whether that breach of duty contributed to the spread of the fire; there was no consideration of whether it contributed to ignition. For present purposes there are two further questions to be answered, namely (i) whether the state of the general waste area contributed to ignition and (ii) if it did, whether steps reasonably available to the Council would have prevented that occurring.

15. [120]

    The evidence at the trial included separate statements and a joint report from four experts. The plaintiff called evidence from Mr Fabian Crowe, who had experience and expertise in bushfire investigations, fire behaviour and fire suppression. Mr Crowe’s original report provided limited assistance with respect to how the fire may have started.

16. [121]

    The plaintiff also called evidence from Mr Murray Nystrom who had extensive experience in forensic investigations of fires, including a period of 14 years with the Queensland Police Department. In a report dated 15 December 2011, Mr Nystrom stated: [84]

17. [122]

    Ms Danielle O’Toole also prepared a report for the plaintiff. Ms O’Toole had extensive experience in mining, civil and environmental infrastructure projects including waste dumps. Ms O’Toole did not express an opinion in her original report as to the cause of ignition, but agreed with the other experts in relation to the likely causes in a joint report and in oral evidence.

18. [123]

    Dr Anthony Green gave evidence for the Council. Dr Green had extensive experience and expertise in areas associated with fires, explosions, emergency planning and catastrophic risk assessment. His academic qualifications were in chemistry. In his initial report of 4 November 2016, he cast doubt on the likely causes of the fire suggested by Mr Nystrom, favouring dry lightning. The trial judge rejected that opinion and there was no suggestion he was wrong to do so.

19. [124]

    The four experts prepared a joint report in February 2017. In considering whether there were fire risks present at the tip on 17 December 2009, the three experts called for the plaintiff agreed that there were, Dr Green disagreeing on the basis that the physical condition of the tip showed it was “adequately managed.” The trial judge rejected Dr Green’s opinion in that respect. That rejection is not challenged.

20. [125]

    Further, all four experts agreed that reasonable fire precautions that could have been taken were:

21. [126]

    Three experts also agreed that removal of grass, foliage and trees within the tip was a reasonable precaution, Dr Green expressing the opinion that “the grass etc need only be kept at a manageable minimum condition.” The joint report continued:

22. [127]

    The expert evidence at trial explained in more detail the mechanisms by which spontaneous combustion, the lensing effect of glass and the possibility of arcing across battery terminals could arise and lead to a fire. As between these effects, the trial judge found that none was shown on the evidence to be the probable cause of the fire. The weight of the expert opinion was, however, that they provided the range of likely causes, with the likelihood in descending order from spontaneous combustion to the lensing effect of glass to an arc across battery terminals.

23. [128]

    So far as precautions were concerned, Ms O’Toole recognised that there had been efforts to manage the tip by separating waste and burning green waste once a year. In her view other steps should have been taken to minimise the risks of fire: [85]

24. [129]

    Other evidence indicated that compaction would reduce the risk of spontaneous combustion, and that covering waste which included broken glass would prevent the lensing effect of glass. Ms O’Toole also noted that while the amount of material which would be needed to cover the tip face was large, the face itself being about five metres high and 20 metres wide, the amount would have been smaller if, as should have happened, the tip was operated with a smaller face.

25. [130]

    Although the trial judge was not satisfied that spontaneous combustion was, more probably than not, the cause of the fire, that finding was challenged by the appellant. Of the three experts who considered the likely cause of the fire, both Mr Nystrom and Mr Crowe supported the likelihood that it was spontaneous combustion. [86] However, the judge discounted the evidence of Mr Nystrom because, in the course of concurrent evidence, he had “conceded that ‘spontaneous combustion’ was only identified as ‘likely’ because it ‘appealed to him the most’.” [87] The appellant challenged that finding on the basis that the language of “the one that most appealed” was that of counsel, with which the witness merely agreed.

26. [131]

    Although this Court did not have the benefit of hearing the evidence, there appears to be substance in the submission that this did not constitute a concession on the part of Mr Nystrom. More importantly, the reason why it “appealed” was explained in the course of the evidence: it appealed because, assessing on a scientific basis the various possible causes, it was indeed more likely to have been the cause than others. There is no error in that process of reasoning. For example, it was entirely appropriate for the experts to reject dry lightning on the basis that the known conditions were not conducive to that event, based on an assessment of the meteorological evidence.

27. [132]

    Further, Dr Green justified his opinion that there was no evidence to support an outbreak of spontaneous combustion because the photographs showed only “one small pile of green waste in the foreground” which would not normally be sufficient for spontaneous combustion. Mr Nystrom agreed that that was all that appeared from one photograph taken weeks before the fire, but stated : [88]

28. [133]

    However, what the photograph did indicate was that there was very poor separation of materials which were dumped in the general waste area. The appropriate inference was that there could be other green waste within the dump in a form conducive to spontaneous combustion, although that could not be seen on the photographs. As noted above, the experts agreed that better separation of waste, together with compacting and covering the general waste, would have reduced the risk of ignition by spontaneous combustion, lensing or indeed arcing from a battery. The inference sought to be drawn by the appellant from the expert evidence was that the three possible causes of the fire would all probably have been prevented had the precautions identified by the unanimous view of the experts been adopted. That submission should be accepted.

29. [134]

    As noted above, the judge accepted that the Council had failed adequately to ensure that different kinds of waste were not mixed together. [89] He then considered the complaint that there had been a failure to cover the waste with inert material on a regular basis. Although the judge ultimately made no specific finding as to whether there was negligence in this respect, given that the particular went only to the issue of ignition, he appears to have accepted that there was a relevant breach of duty, with one qualification, relating to the possible cost of taking precautions.

30. [135]

    The judge referred to the evidence of four witnesses as to the condition of the tip, being Messrs Davies, Peach, Jacob and Mansfield. Mr Jacob was a local farmer and contractor who was employed by the Council to conduct “a weekly push of the rubbish at a number of tips in the local area” including Walla Walla. He described “pushing” the rubbish as involving machinery “to push all the scattered rubbish and waste into the landfill itself and make the ‘dumping’ areas tidy and free of waste.” He said that “[d]irt is then pushed up to the edge to prevent the waste from spilling out or into unwanted areas.” [90]

31. [136]

    Mr Mansfield was employed part-time by the Council as a “landfill attendant”. His duties included working at the Walla Walla tip. He was conscious of the need to ensure there was not cross-contamination of waste in different areas. He stated: [91]

32. [137]

    The period to which he was referring as indicating earlier practice was unclear; he commenced working at Walla Walla in 2007. [92] Mr Mansfield agreed that, particularly in 2009, “there was a lot of rubbish that wasn’t properly pushed up”. [93] He agreed that it was “building” in the months before the fire. He also agreed that there was no soil to put on top of the rubbish at that time. [94] He was asked if he now knew that there should be covering. He said: [95]

33. [138]

    In considering the scope of the duty of care owed by the Council to surrounding property owners, the judge summarised important evidence as to the knowledge and understanding of Council officers as to the risks involved. Mr Davies was, at the time of the fire, the Council’s Director of Environment and Planning. He stated that in 2008 Mr Peach took over direct responsibility for the waste facilities. The judge concluded:

34. [139]

    The officer directly responsible for waste management in 2009 was Mr Peach, whose evidence the judge summarised in the following terms:

35. [140]

    Other evidence demonstrating actual appreciation by Council officers of what needed to be done to minimise risk of fire will be addressed below in dealing with the risk of spread.

36. [141]

    In submissions the Council focused on the lack of soil available to cover the pile of general waste from time to time, and the cost of importing soil for the task. However, although the Council had accepted the need to cover the waste from time to time, it provided no evidence as to the cost of that exercise. It was therefore merely a factor to be addressed when considering the overall cost of precautions. If the possible anticipated expenses were not sufficient to render the precautions unreasonable, then this Court should make the following findings:

37. [142]

    This topic may be dealt with more briefly because the trial judge found that the Council was negligent in not taking a number of precautions to prevent the spread of the fire, once it ignited. Nevertheless, it is necessary to understand why, having made those findings, the judge was not satisfied that they would probably have been effective to prevent the escape of the fire from the tip before the fire fighters arrived.

38. [143]

    The precautions which the judge accepted should have been taken may be addressed in three categories, namely (i) steps to reduce the “fuel load” within the tip; (ii) levelling parts of the tip to allow access to fire fighters, and (iii) constructing and maintaining an adequate firebreak around the tip.

39. [144]

    The evidence relied on by the trial judge included correspondence emanating from senior Council officers, on behalf of the general manager, in 2000, 2001 and 2002. First, on 31 August 2000, Mr Robert Crawford, Manager Environmental & Community Services, wrote on behalf of the Council’s general manager to the Captain, Culcairn North West Fire Brigade regarding the Council’s “plans for fire safety at Council Waste Depots.” The letter read:

40. [145]

    A second letter, on 21 February 2001, was sent to MD & VC Jacob, with respect to a tender for weekly services to be provided at Culcairn, Henty and Walla Walla waste depots. The letter sought assurances that the contractors had the necessary equipment. The weekly services included:

41. [146]

    Thirdly, on 13 May 2002 Mr Crawford’s successor, Mr Williams wrote to Messrs A W & M E Singe in Henty in the following terms:

42. [147]

    The trial judge also noted (and implicitly accepted) evidence that there had been a fire at the Henty tip in 2006, and a fire at the Walla Walla tip in 2003 or 2004. [96]

43. [148]

    The judge then considered whether there had been a failure to create and maintain an effective firebreak. [97] The judge noted the submissions by the plaintiff that the firebreak was “totally inadequate” and, indeed, “was not a firebreak.” [98] The conclusion reached by the judge was expressed in the following terms:

44. [149]

    The judge also found that the firebreak was a track approximately 3-5 metres wide, which, at the time of the fire, was “uneven, [including] tall, uncut or burnt and fully cured grasses, as well as refuse of the nature of concrete and steel throughout it. The land could not be traversed by machinery so as to cut it.” [99] The description of the evidence (implicitly accepted) included that of Mr Seidel, who lived a short distance from the tip and used it frequently. He described the state of the tip in a statement which was tendered and not the subject of cross-examination, in the following terms: [100]

45. [150]

    Another local resident, Mr Hunter gave evidence as to the condition of the tip prior to the fire. (Mr Hunter had also assisted in the fire fighting exercise, protecting the clubhouse on the abandoned golf club land.) In his oral evidence he described driving around the firebreak when scavenging for vehicle parts. The following question and answer were given in the course of re-examination: [101]

46. [151]

    It was suggested to Mr Hunter in cross-examination that the firebreak was about “two grader blades wide”, a proposition which he denied.

47. [152]

    Mr Nystrom gave evidence (which was not challenged) in relation to the firebreak in the following terms: [102]

48. [153]

    Mr Nystrom also gave evidence as to the appropriate width saying “it should be wide enough for the passage of two vehicles so they can pass each other and in my view something of the order of about 10 metres would be preferable to something of, to something that is of the order of 3 to 4 metres.” [103] Dr Green agreed that “[o]bviously 10 metres is better than three or four” and agreed that it should be totally cleared of material, including trees. [104]

49. [154]

    Again summarising (and implicitly accepting) the evidence, the judge stated: [105]

50. [155]

    So far as the area within the tip was concerned, two precautions were required, which were not taken. The first was the reduction of fuel load. There was evidence that until it had dried out (it being entirely dry or “cured” at the time of the fire) the grass within the tip and surrounding the areas where waste had been dumped was up to a metre high, or the height of a 44 gallon drum.

51. [156]

    Dr Green gave evidence of the significance of the fuel load in terms of the height of the flames and the speed at which the fire would spread, stating: [106]

52. [157]

    The judge accepted the evidence of Mr Jacob that in the south-east corner “there was vegetation, phalaris and rye grass and ‘all sorts of stuff up to waist high’ which was dry or cured, the vegetation was heavy, with exceptional growth in 2009. Photographic evidence of the grass alongside 44 gallon drums was also relied upon as an indicator of height.” [107] The judge noted evidence that “material to the south and the east of the bund was mainly long grass in October to December 2009” and “there was nothing to stop a fire going south from the bund towards the south-eastern area of the reserve within the netting fence before the firebreak”. [108] With respect to the evidence of Mr Davies the judge noted:

53. [158]

    The evidence consistently given by the witnesses and uncontested was that there was long grass between the various dumps within the area of the tip, within the areas where there were bottles and scrap metal and between the dumps and the fence; no steps had been taken either to cut the grass or to apply pesticide. The judge reached the following conclusions:

54. [159]

    Despite the finding that slashing, at least in some areas was possible, the judge also noted the plaintiff’s contention that “[p]hotographs taken after the fire show a representation of the terrain underneath the long grass and vegetation before the fire, and illustrate the work required of a bulldozer if employed prior to the fire to flatten the ground on the southern side”. [109] The Council had in part conceded that slashing was difficult, the judge noting a submission that “it was not practical to slash between the waste by virtue of debris and topographical impediments”. [110] It is also apparent from the photographs that there were a number of trees within the area of the tip, as well as along the firebreak.

55. [160]

    Importantly in terms of causation, the following steps which were not taken by the Council would, if taken, have significantly impeded the progress of the fire and therefore slowed its escape from the tip, namely (i) compacting and covering the bund created by the general waste; (ii) levelling the ground in the areas between the piles of waste so as to allow access for slashers and similar machinery; and (iii) slashing or otherwise killing the long grass between the piles of waste and between the waste and the fence. If those steps had been taken, the additional step of providing a firebreak of graded clear dirt, with no tree cover, to a width of approximately 10 metres around the tip, would on the evidence, have been effective at least to slow the spread of any fire and thus to reduce greatly the risk of the fire escaping. As the trial judge found, those steps should have been taken in the exercise of the Council’s duty of care.

56. [161]

    It remains to consider whether that finding should be rejected because the cost involved, and the lack of resources available to the Council, rendered such precautions beyond those which a reasonable manager in the position of the Council would have undertaken.

57. [162]

    The Council sought to demonstrate, on the basis of its budgets for the 2008-2009 and 2009-2010 financial years that there were no significant funds available to it which would have allowed further expenditure on the 10 waste disposal sites under its control. It also contended that the allocation of further resources to that function would have been a challenge to the general allocation of financial resources contained in the budgets, being the exercise forbidden by s 42(b). The consideration of expenditure across all 10 waste disposal sites, it submitted, was required pursuant to s 5C(a) and s 42(c). In addition, as noted above, the Council identified the risk of harm as a risk of fire escaping from its lands and therefore submitted that these provisions required consideration of the cost of addressing similar risks at other land owned or occupied by the Council, including “broad acreage”.

58. [163]

    The appellant submitted that all that could sensibly be required was a consideration of the burden of adopting appropriate precautions at the waste disposal sites operated by the Council. 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”. [111] For the purposes of that more limited inquiry, the appellant noted that the Court had available two waste management strategies prepared for the Council and its predecessor, one prepared in 2004 [112] and a second prepared in November 2006. [113] This material revealed that the Council operated 10 waste disposal facilities, each having somewhat different characteristics and methods of operation. One was licensed under the Protection of the Environment Act.

59. [164]

    The appellant’s approach should be accepted for two reasons. First, there was no evidence as to what precautions were needed with respect to land not used for waste management purposes, let alone as to the costs of carrying out such precautions. Secondly, whatever may be the scope of the “general allocations” which cannot be challenged pursuant to s 42(b), there would be an inherent tension in permitting the Council to require the Court to have regard to the use of resources in areas of activity unrelated to the kind of activity which caused harm to the plaintiff, whilst precluding any challenge to the allocation of resources across the range of such activities. The tension between allowing the Council to rely upon the limited resources available to it, whilst limiting the challenges which could be made to the general allocation of those resources, should be resolved by adopting a narrower, rather than a broader, construction of the activities which must be taken into account. Further, that approach is to be preferred on the basis that the intention of Pt 5 of the Civil Liability Act was in part to constrain the cost of litigation; the broader construction would tend to open up areas of inquiry into the activities of the public authority well beyond those otherwise the subject of a claim in negligence for damage to a particular individual.

60. [165]

    On this basis the exercise required identification of (i) the costs involved in the precautions at the tip found to be reasonably necessary, (ii) the actual precautions required at other waste facilities operated by the Council, and (iii) the costs which would be involved overall.

61. [166]

    The evidence as to the costs involved in carrying out the precautions required at the tip was quite limited. That was in part because quite limited steps had been taken by the Council with respect to such precautions. Thus, on 28 October 2009 the Council issued an order to Jindera Bobcat & Machinery Services for “slashing/mowing & firebreak” at the tip (and at five other sites on Council land). There was an invoice in evidence from Jindera Bobcat dated 26 October 2009, for work done on 20 October at the Walla Walla tip, which was described as “slash drive and clean up fire break around tip.” The work apparently took 10 hours and the bill with GST was $990. (This Court was taken to no invoices for any other tip.)

62. [167]

    There was a lack of direct evidence as to the cost of the proposed precautions, no doubt in part because, as the draft Waste Management Strategy 2010-2015 (March 2010) noted with respect to Walla Walla tip, “[a]ll the putrescible waste has been covered as a result of the fire of 17th December 2009 and the facility is closed to the public.” It was proposed that the site be permanently closed and the land rehabilitated. Significantly, however, there was little in this report which indicated the need for fire prevention precautions at any other waste disposal site within the Council’s area. There was reference to the fact that, at the Henty landfill, “[a] fire in 2007 cost $10,000 to extinguish”. Other evidence indicated that a fire intended to eliminate green waste had spread into the general waste tip; the precaution had been to isolate the area where green waste was dumped and surround it by a gravel firebreak. There was no indication as to the cost incurred for this work, nor did it appear that similar precautions had been deemed necessary at any other site. It followed that no costings were available from this source. The proper inference is that the relevant assessment of costs may properly be restricted to those which would have been undertaken at the Walla Walla tip prior to the fire in December 2009. Notably, there was no estimate of the cost of carrying out the work proposed in 2001-2002, but not undertaken. [114]

63. [168]

    The general manager, Mr Pinnuck, identified the expenditure and income in relation to “[t]he financial performance of waste management”. [115] Thus, for the financial year 2008/2009, expenditure on the Walla Walla tip was $25,108 and income “in relation to” the tip was $6,431. By contrast, the total expenditure with respect to “waste operations of the Council” in that financial year was $869,000, total income being $616,000. Mr Pinnuck stated that “there was no immediate reason for the Council to allocate further resources to the tip in the period prior to the fire”, based upon “(a) lack of complaints regarding the tip [and] (b) financial performance of the tip and waste management generally.” [116] Mr David Smith provided details of the Council’s budgets for the same financial years and confirmed that in each year “it was expected that waste management would run at a loss” and that, in each year, “waste management did in fact run at a loss.” He also stated that he did not recall “any complaint about the budget allocations for waste management or in relation to Walla Walla tip.” [117] Apart from the final comment that waste management in fact ran at a loss, all of the material attached to Mr Smith’s statements was in the form of budgets for particular financial years.

64. [169]

    The lack of complaints is of no immediate relevance; it is unclear in what sense “complaints” would affect the reasonable precautions to prevent the spread of fire. The evidence demonstrated that concerns as to fire risk in 2001 and 2002 were raised, as discussed above, including by the Rural Fire Service. The reference to “financial performance” is also obscure. It may have referred to the fact that, in each of the five financial years referred to in the evidence, the income “in relation to” the tip was approximately 25% of expenditure. The service was not expected to break even; the source of the additional funds was not explained. It is therefore necessary to explore the Council’s financial statements in more detail.

65. [170]

    The Council’s balance sheet for the year ended 30 June 2009 recorded net assets of $244.5m, which included “cash and cash equivalents” of $2.32m and investments of $15.95m; these amounts totalled $18.27m. The notes to the balance sheet explained that of the $18.27m, $3m was not subject to restrictions. Mr Pinnuck failed to identify this sum as an available financial resource in his evidence. [118]

66. [171]

    The income statement for the year ended 30 June 2009 recorded a net operating result of $4.6m and a net operating result before grants and contributions provided for capital purposes of $826,000. As to the grants, totalling $9.29m, there were tied specific purpose grants of $3.83m; further, two untied general purpose grants totalling $2.02m were allocated to local roads and pensioner rate subsidies. However, there remained a general component of untied grants of $3.44m available for operating purposes.

67. [172]

    The net operating result of $4.6m reflected an increase in net assets as at 30 June 2009, when compared with the previous year.

68. [173]

    The budget for the waste management fund for 2009/2010 to 2011/2012, adopted by Council on 24 June 2009, forecast an operating loss for 2009/2010 of $253,790. However, that figure said very little about the Council’s financial resources, as it ignored forecast capital grants and contributions and the Council’s overall financial resources recorded in the balance sheet.

69. [174]

    In addition to immediately available financial resources, the notes to the Council’s 2009 financial report recorded that the Council maintained a waste management fund (or reserve) which had a closing balance on 30 June 2009 of $51,000. [119] It may be inferred that this fund was only available for waste management.

70. [175]

    According to the Consolidated Management Plan 2009/2010 to 2011/2012, the Council had planned to expend $25,000 from the waste management reserve by 30 June 2009. In fact, only $18,000 was spent by 30 June 2009.

71. [176]

    Accepting that the plaintiff cannot challenge the general allocation of $51,000 to this reserve, there was no evidence about the specific allocation of the reserve in the 2009/2010 year to particular projects within the Council’s waste management functions. The summary of forecasts of estimated transfers to and from reserves for 2009/2010 suggested that no transfer from the waste management reserve was forecast as at 24 June 2009.

72. [177]

    Nor did the Council adduce evidence as to how the waste fund of $51,000 was in fact expended, or in what amounts and at what times in the 2009/2010 financial year, other than that by 30 June 2010, the waste management reserve of $51,000 had been fully expended.

73. [178]

    This evidence supports the following conclusions as to the financial resources of the Council in 2009:

74. [179]

    Compliance with the duty of care identified above would have involved expenditure over more than one financial year, which might have reduced the available funds at the beginning of the 2009 financial year, but would have reduced the amount required in that year for additional works. However, even if all the precautions identified above were taken in calendar year 2009, before the commencement of the summer months at the end of that year, there were ample funds available for such works. If more than the waste management fund had been required, it would seem likely that 1% or 2% of the unrestricted cash and investments would have sufficed. There was no evidence that the cash and investments were at an unreasonably low level.

75. [180]

    Accordingly, there was no financial constraint, on the evidence available in this Court, which would have precluded a reasonable Council from taking the precautions identified at [160] above.

Causation

1. [181]

   The appellant failed before the trial judge for two reasons: first, although the judge accepted that there had been a breach of duty with respect to the precautions needed to control the spread of fire from the tip, he was not satisfied that those precautions would, in the circumstances that existed on 17 December 2009, have prevented the spread of the fire beyond the tip to the long grass on the golf course, and hence its ultimate spread to the plaintiff’s property at Gerogery. The appellant’s case was that, had the relevant steps been taken, the spread of the fire within the tip would have been far slower, with the result that, on the balance of probabilities, it would have been contained within the tip. For reasons explained below, that submission should be accepted.

2. [182]

   The second reason that the plaintiff failed at trial was that the judge did not accept that there were precautions which should have been taken to control the outbreak of fire, on the basis that it was not possible to determine the cause of the outbreak. For the reasons set out above, that finding was in error. The appellant submitted that, had the relevant precautions been taken, there would probably have been no fire, but that if there were a fire, it would have been greatly reduced in its ferocity and, for that reason, the combination of those precautions, together with additional precautions to prevent the spread of the fire, would have allowed it to be controlled before it escaped from the Council tip. That submission should also be accepted. Nevertheless, it is appropriate to address the issue of causation in respect of the spread of the fire, which constituted grounds 3 and 4 of the appeal.

3. [183]

   The appellant contended that the trial judge erred in two respects. First, he abrogated his fact-finding role by deferring to certain opinions expressed by the experts, which did not determine the issue before the Court. Secondly, in considering the lay evidence, the judge wrongly determined the issue by a finding (factually correct) that the first person to arrive at the tip to fight the fire was already too late to prevent its escape. The proper approach, the appellant submitted, required an estimation of the progress of the fire had the relevant precautions been taken, a question which was not answered simply by reference to the actual progress of the fire.

4. [184]

   In dealing with causation, the trial judge summarised, accurately, the submissions of the parties, [120] followed by reference to particular evidence of the experts, as set out in their joint report [121] and a summary of their oral evidence, given concurrently. [122]

5. [185]

   The correct approach was identified by the primary judge in stating his conclusions, namely:

6. [186]

   In dealing with the evidence of the experts, the judge noted:

7. [187]

   It was true that the joint expert report expressed the particular opinion in guarded terms. It is also true that there was other evidence which provided a basis for assessing the strength of this conclusory statement. The judge did not refer to other aspects of the expert evidence, but continued in the following terms:

8. [188]

   The facts as described at [413] were not in dispute. The questions which should have been asked, however, were whether the fire would have escaped before Mr Grosse was able to obtain access to the tip, had the waste been compacted and covered with soil, had the load of dry long grass been removed and had there been a properly cleared and graded firebreak. As the appellant submitted, the reasoning at [415] should not have been adopted. The fact that Mr Grosse arrived too late in the actual circumstances of the fire does not provide any answer to the counterfactual question, namely would he have arrived too late had the relevant precautions been taken.

9. [189]

   The experts were questioned at some length about three specific topics, namely (i) the effective fuel load resulting from long grass on the tip site, (ii) the strength of the fire at the uncovered bund, and (iii) the effectiveness of a firebreak. Dr Green, who concluded, contrary to the views of the other witnesses and the findings of the judge, that the tip was adequately managed, had calculated from the photographs that the grass gave rise to a fuel load of about four tonnes per hectare. [123] He was taken through evidence which suggested that the grass was in fact significantly higher than the knee height which he had assumed. He then doubled his estimate of the fuel load to about eight tonnes per hectare, which cast doubt on other aspects of his opinions. [124]

10. [190]

    Mr Crowe stated: [125]

11. [191]

    Maintaining short grass had a further benefit in that, according to Mr Crowe’s evidence, it would not have “potential to spot”. [126] Dr Green agreed that there was “little prospect of spotting” if the grass were slashed and kept to a height of six inches. [127]

12. [192]

    With respect to the fire within the tip, Dr Green was of the view, based on damage to the trees, that along the bund the flames “could be 30 metres in length”. [128] Dr Green also agreed that if waste were stored without being covered and sealed, it “can create an enormous bonfire”. [129] The solution, Dr Green stated, was to “cover it if you can.” [130]

13. [193]

    Following the exchange between counsel for the plaintiff and Dr Green, Mr Crowe added: [131]

14. [194]

    When the witnesses came to discuss the effectiveness of a firebreak under the hypothesised conditions, namely a greatly reduced fuel base and short grass, combined with a wide clear firebreak, there appeared to be general agreement that a firebreak was, as Mr Nystrom said, “a tool that is effective under the conditions, can be effective under the conditions, with short grass it’s far more effective than with tall grass.” [133] Mr Nystrom said that an appropriate width of an effective firebreak would be about 10 metres, in preference to the actual uncleared firebreak which was in the order of 3-4 metres. [134] Dr Green agreed that 10 metres was better than 3 or 4 and that it should be totally clear of material, including trees over it. [135]

15. [195]

    There was no challenge to the questioning of the experts on the basis 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 estimated at some eight tonnes per hectare. Further, it was the Council’s expert (Dr Green) who hypothesised that the waste in the tip burnt with flames up to 30 metres in length.

16. [196]

    Importantly, all agreed with the assumption that spotting would have been greatly reduced, if not eliminated, by maintaining short grass and a covered waste area. They also agreed that a 10 metre firebreak cleared of trees, debris and grass would have been appropriate. Further, there was agreement that the speed of spread depended significantly on the length of the flames which, absent exposed waste and long grass, would have been much reduced.

17. [197]

    Although it was true that Mr Grosse, and the second fire crew, arrived only after the fire had jumped from the tip to the golf course, they arrived about 15 minutes after the fire was first observed and, presumably, was well established. 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 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. As the appellant submitted, it was necessary to assess the cumulative effect of the various precautions deemed reasonable. That did not occur. 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.

18. [198]

    Even if there were doubt in this regard, the additional factor of the reduction in likelihood of the fire commencing, or at least a large fire commencing, meant that the plaintiff’s case has been established.

Conclusions

1. [199]

   The appeal should be allowed and the following orders made:

   1. (1)

      Grant Sharon Patricia Weber leave to appeal from the judgment and orders in the Common Law Division;

   2. (2)

      Allow the appeal and set aside orders made on 14 May 2018; in their place make the following orders –

   3. (3)

      Order that the respondent pay the appellant’s costs in this Court.

2. [200]

   GLEESON JA: I agree with Basten JA.

3. [201]

   SACKVILLE AJA: I agree with the orders proposed by Basten JA. I prefer to state my own reasons. However, in doing so I shall identify the matters on which I agree with Basten JA’s reasons.

Duty of care

1. [202]

   The respondent (Council) placed at the forefront of its submissions the proposition that the appellant was seeking to establish a novel duty of care. The primary Judge’s rejection of this proposition was said to have led his Honour into error, in that his Honour ignored or impermissibly lessened the significance of factors relevant to the existence of a novel duty of care.

2. [203]

   Nearly 90 years ago the High Court in McInnes v Wardle [136] applied a principle formulated 37 years earlier by the Privy Council in Black v The Christchurch Finance Company Limited, [137] as follows:

3. [204]

   In McInnes v Wardle a contractor engaged by the defendant lit a fire in December 1925 on a property near Bordertown in South Australia, with the intention of “fumigating rabbits”. The fire escaped to the plaintiff’s neighbouring property and caused damage. The High Court upheld a judgment in the plaintiff’s favour founded on the defendant’s negligence. Gavan Duffy CJ and Starke J pointed out that grass and scrub are usually very dry during the Australian summer and that fires spread with great rapidity. Their Honours observed that the statutory prohibitions against lighting fires during the summer months demonstrated that the defendant should have foreseen and guarded against the danger of burning ferns and undergrowth as a means of controlling rabbits.

4. [205]

   In Burnie Port Authority v General Jones Pty Ltd, [138] a majority of the High Court held that for the purposes of the common law of Australia the so-called rule in Rylands v Fletcher, [139] which imposed a form of strict liability on occupiers who conducted dangerous activities on their land, had been absorbed by the general principles of negligence. The facts of Burnie were similar to those of McInnes v Wardle, in that a fire was started in the defendant’s building by the negligence of a contractor and caused damage to another section of the same building occupied by a licensee. The majority judgment cited Black v The Christchurch Finance Company Limited and McInnes v Wardle as decisions founded on the ordinary principles of the law of negligence which recognise that an occupier of land in some circumstances may be subject to a non-delegable duty of care. [140]

5. [206]

   In all three cases the plaintiff occupied land or premises adjoining the property on which the fire began. In each case, therefore, the plaintiff was literally the defendant’s neighbour. But since the celebrated judgment of Lord Atkin in Donoghue v Stevenson, [141] if not earlier, a person’s “neighbour” for the purposes of the law of negligence is not to be understood literally: [142]

6. [207]

   If a fire is negligently lit on, or allowed to escape from, land and the fire causes damage to another property, there is no principled reason to limit a right to recover damages to an adjoining occupier as distinct from an occupier of more distant land. Particularly is this the case in Australia, where fire is an “exceptional hazard”. [143]

7. [208]

   As the facts of the present case demonstrate, an uncontrolled bush fire has a capacity to travel extraordinarily rapidly and destructively over considerable distances. The appellant’s property was located some eleven kilometres from the Walla Walla Waste Recycling Depot (Tip) but the fire travelled that distance after escaping the south-eastern boundary of the Tip in barely one hour, fanned by hot north-westerly winds. Clearly it was foreseeable that a fire at the Tip could move rapidly to the south east, particularly as the Council was well aware of the flammable condition of the vegetation in the area between the Tip and the town of Gerogery.

8. [209]

   This does not mean that the escape of fire from land exposes the occupier to unlimited liability for losses attributable to the fire. The plaintiff must establish the existence of a duty of care and a breach by the defendant of that duty. [144] The law provides other control mechanisms. The plaintiff must also prove that the defendant’s negligence caused the loss, a concept that incorporates normative considerations as to whether it is appropriate to attribute responsibility to the defendant for the harm sustained by the plaintiff. [145] Special statutory provisions limit the circumstances in which a public authority is subject to a duty of care in relation to the exercise of its functions or on which it will be held to have breached that duty. [146] In addition, legislation limits the circumstances in which certain classes of defendants can be held liable for the negligent exercise of powers or regulatory functions. [147]

9. [210]

   I agree with Basten JA that the mere fact that it is not possible in advance to identify precisely the members of the class who may suffer damage by reason of the defendant’s negligence does not mean that the potential liability is indeterminate, such that no duty of care arises. The observations of the Court of Appeal of the Australian Capital Territory [148] which Basten JA has quoted [149] must be understood in the context of the very different facts of that case.

10. [211]

    As Basten JA has explained, [150] the Council placed no reliance on s 42 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) on the question of whether it owed a duty of care to the appellant. I agree with Basten JA’s reasons for concluding that s 43A of the Civil Liability Act was not engaged in this case.

11. [212]

    Accordingly I would reject the Council’s challenge to the primary Judge’s finding that it owed the appellant a duty to exercise reasonable care. The duty was to take reasonable care:

Breach

1. [213]

   In my view it is only necessary to consider the primary Judge’s finding that the Council breached its duty to take reasonable care to prevent the spread of fire beyond the boundaries of the Tip. After considering the general principles stated in s 5B of the Civil Liability Act [151] the primary Judge made the following findings in relation to breach:

2. [214]

   The primary Judge summarised his findings as follows: [157]

3. [215]

   In my opinion, subject to the Council’s reliance on s 42 of the Civil Liability Act, [158] the evidence amply supports the primary Judge’s findings as to breach of the duty to exercise reasonable care to prevent the escape of fire from the Tip.

Causation

1. [216]

   I agree with Basten JA that the primary Judge erred in his approach to causation. The correct question to ask was whether on the balance of probabilities the fire would have been contained within the boundaries of the Tip had the Council taken the precautions required in the exercise of reasonable care.

2. [217]

   The Council submitted that even if the correct question is asked the appellant cannot succeed on the issue of causation. According to Mr Sheldon SC, who appeared with Mr Barnett for the Council, the evidence does not justify a finding that the Council’s failure to take precautions against the spread of fire was a necessary condition of the occurrence of the harm suffered by the appellant. [159] Mr Sheldon relied in particular on the equivocal answer given in the joint report of the experts as to whether the precautions that should have been taken by the Council were likely to have prevented the spread of the fire.

3. [218]

   The experts were asked to identify which of the measures that should have been employed would have stopped the fire from spreading. The joint report recorded the experts’ view that in the absence of fire fighting equipment on site:

4. [219]

   The significance of this equivocal response by the experts in the joint report is diminished by two factors. The first is that the experts were apparently not asked to make any assumption about the speed with which the fire fighters would have arrived at the Tip, once the fire had started and had been reported to the authorities.

5. [220]

   The primary Judge found that Mr Pumpa, who owned a property to the immediate north of the Tip, saw smoke coming from the Tip at 1.35 pm on the day of the fire. [160] Mr Grosse, who was working in Walla Walla, around three kilometres north of the Tip, saw smoke at about the same time. He reported the fire to the Fire Control Centre in Albury at 1.38 pm and at 1.40 pm Mr Grosse received a circular message on his telephone alerting all Rural Fire Service members of the fire at the Tip. [161] Mr Grosse immediately drove to the Fire Station in Walla Walla. He and Captain Jacob of the Walla Walla Fire Brigade drove in a fire truck to the Tip arriving at the road gate at or about 1.45 pm. [162] This was about ten minutes after Mr Grosse had first noticed smoke.

6. [221]

   The primary Judge described what then happened: [163]

7. [222]

   His Honour was comfortably satisfied that upon arriving at the Tip Mr Groose observed that the fire had escaped the Tip and was heading at a rapid pace through the tall grass within the neighbouring disused golf course towards the Walla Walla-Jindera Road. [164] This had required the fire to travel from the north-west section of the Tip, where the fire had started, across about 150 metres to the south east boundary of the Tip.

8. [223]

   The records of the Walla Walla Fire Brigade show that two other fire trucks left the Fire Station at approximately 1.55 pm and 2.05 pm. His Honour found that further fire units “arrived” after 2.00 pm but they apparently did not proceed directly to the Tip. Instead they joined residents in defending the properties adjacent to the Tip because the fire had already escaped. [165]

9. [224]

   The evidence suggests that once the fire had been detected at least one fire fighting unit would have arrived at the Tip within ten to fifteen minutes. Had the fire not already spread and demanded attention from fire fighters beyond the boundaries of the Tip, other fire fighting units would have arrived at the Tip a short time later.

10. [225]

    The second matter diminishing the force of the joint experts’ report is the oral evidence given by the experts when the issue was revisited at length during the trial. Their 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. The primary Judge found on the basis of the expert evidence that fuel load is an important factor in the spread of fire and that the removal of combustible material including cured grass [166] retards the expansion of fire, thereby allowing fire crews a greater opportunity to intervene. [167] It is convenient to refer to some of the evidence underpinning this finding.

11. [226]

    Dr Green, the Council’s expert, said that in order for a fire to spread there had to be combustible material in its path. The fire can spread either by “spotting”, as it jumps from one combustible area to another, or by radiation if the fire is hot enough. He said that flame length and fuel load is important for fire spread between different areas. Since conditions within land used as a tip are likely to vary:

12. [227]

    Dr Green also gave the following evidence:

13. [228]

    Dr Green estimated on the basis of photographs taken at the Tip that the fuel load in the form of long grass was about four tonnes per hectare. He accepted in his cross-examination, however, that his estimate was based on grass being about knee high and being new grass for that season. He also accepted that if the grass was in fact a metre tall and included thatch from previous seasons, the fuel load would be much greater, probably leading him to double his previous estimate. Basten JA has referred to the evidence describing the extent and nature of the vegetation at the time of the fire, with cured grass in parts of the Tip up to waist high. [168]

14. [229]

    When Dr Green was asked about the effectiveness of the firebreak, the following exchange occurred:

15. [230]

    Mr Crowe, an expert in bushfire investigations, was asked to elaborate on the differences of opinion among the experts as to the risk of fuel igniting and spreading. His response was that:

16. [231]

    Mr Crowe gave the following evidence:

17. [232]

    Mr Nystrom, a former police officer with extensive experience in fire investigations, gave similar evidence:

18. [233]

    There is much to be said for the proposition that slashing or removing long grass between the piles of waste and the perimeter of the Tip at or shortly before the start of summer would have been enough of itself to have prevented the fire escaping from the Tip. The evidence of the experts strongly suggests that drastically reducing the combustible fuel load would have been likely to show the progress of any fire to a very considerable extent. Given that the alert members of the Fire Brigade would have arrived at the Tip within ten to fifteen minutes of the alarm being raised (with other units to follow shortly thereafter), it would seem quite likely that the fire could have been prevented from escaping the boundaries of the Tip and reaching highly flammable vegetation to the south east.

19. [234]

    As has been seen, the primary Judge found that the exercise of reasonable care required the Council to take other precautions as well to prevent the escape of fire from the Tip. These included:

20. [235]

    The primary Judge found that by December 2009 the firebreak at the perimeter of the Tip was “cured and dry and totally inaccessible to vehicles”. [169] His Honour appeared to accept the evidence of Mr Hunter, a resident of Walla Walla who was familiar with the Tip, as to the condition of the firebreak. Mr Hunter said that the firebreak had a lot of vegetation scattered across it, together with fallen “rubbish”, small branches and even large branches. [170]

21. [236]

    If the Council had taken the extra precautions identified by the primary Judge, the conclusion that the fire probably would not have escaped the Tip is reinforced. The oral evidence of the experts supports this conclusion as does the evidence of the rapid response of the fire fighters when the alarm was raised.

22. [237]

    In my opinion the appellant has established on the balance of probabilities that if the Council had:

Civil Liability Act s 42

1. [238]

   The Council invoked s 42 of the Civil Liability Act in support of its contention that it did not breach the duty of care owed to the appellant. [171]

2. [239]

   In assessing the burden that taking these actions would have imposed on the Council it is necessary to bear in mind that the Council’s breaches of duty were longstanding. For example, Mr Davies, the Council’s former Director of Environment and Planning, accepted that the firebreak at the Tip should have been graded along its existing alignment in about August of each year. Had that been done, the work required to grade the firebreak in August 2009 would have been straightforward and modest in scope.

3. [240]

   Much the same can be said about covering inert waste. Mr Davies explained that there was a lack of fill at the Tip itself because of the waste buried but near the surface. Thus soil had to be obtained “opportunistically” from other sources, for example from roadworks. Had the Council planned for regular covering of inert material, it is fair to infer that the problem (and cost) of locating fill would have been minimised.

4. [241]

   There was evidence that the unevenness of the ground in some areas of the Tip impeded vehicular access and restricted the Council’s capacity to slash the long grass. However Mr Davies acknowledged that there were no stone or rock barriers to clearing the ground. He accepted that there would not be “that big a cost” in putting a bulldozer into the Tip to flatten out an area of, say, 60 metres by 30 metres. Moreover, had the Council fulfilled its duty of care it would have undertaken at least part of the necessary work earlier and would not have been forced to undertake the work wholly within the 2009-2010 financial year.

5. [242]

   As Basten JA has pointed out, the Council had a waste management reserve of $51,000 as at 30 June 2009. [172] The evidence justifies a finding that the cost of the measures that the Council should have taken to minimise the risk of fire escaping from the Tip would have been modest and would have absorbed only a relatively small proportion of the reserve in 2009-2010. The primary Judge made no finding that the cost of the measures would have been any greater. Nor did he make a finding that the cost would have materially adversely affected the Council’s conduct of other waste management depots. Indeed there was evidence that the budget for the maintenance of the Council’s waste management depots had been underspent in the 2008-2009 financial year.

6. [243]

   In these circumstances I consider the Council’s reliance on s 42 of the Civil Liability Act to be misplaced. The Council itself allocated funds to the waste management reserve. Looking to that reserve as a source of funds for the precautions reasonably required in no way challenges the “general allocation of [financial and other] resources” by the Council. [173] The precautions could and should have been taken within the resources reasonably available to the Council for the purpose of discharging waste disposal functions. [174] The taking of the precaution would not have had a significant or even minor impact on the Council’s broad range of activities. [175]

7. [244]

   I should add that the evidence to which I have referred supports the primary Judge’s finding that the precautions required to avoid the risk of harm did not impose an undue burden on the Council.

8. [245]

   It will be apparent that I do not think that it is necessary in this case to undertake a detailed analysis of the construction of s 42 or its relationship with s 5B of the Civil Liability Act.