Failed at the final hurdle – a lesson in establishing causation
On 17 December 2009, a fire escaped from the Walla Walla Waste/Recycling Depot in Walla Walla, New South Wales and burnt 5,200 hectares of land. The plaintiff’s property was destroyed in the fire. She brought a claim against Council, seeking damages for negligence and, in the alternative, nuisance.
- Whether Council owed a duty of care to the plaintiff to firstly, prevent a fire igniting at the Tip, and secondly, prevent any such fire spreading beyond the Tip.
- If so, the court was also required to consider the corresponding issues relating to breach of duty and causation.
Council operated the Walla Walla Waste/Recycling Depot in Walla Walla, New South Wales (the Tip). On 17 December 2009, a fire ignited at the Tip, spreading beyond its border and travelling 11kms south east to the township of Gerogery. In total, approximately 5,200 hectares of land was burnt. The plaintiff’s property was directly in the fire’s path and was destroyed. The plaintiff commenced representative proceedings pursuant to part 10 of the Civil Procedure Act 2005 (NSW) against Council on her behalf and on behalf of 57 group members.
The Decision at Trial
The plaintiff submitted Council owed a duty to take reasonable care to prevent a fire igniting at the Tip. There were six causes identified as the possible source of ignition of the fire. However, the consensus reached by all experts was that the “actual cause or probable cause of ignition cannot be identified”. As the plaintiff failed to establish the cause of the fire, the court held that she could not prove the fire was caused by any breach of duty owed by Council. The plaintiff’s case on that aspect of the claim therefore failed.
The court was also required to consider whether Council owed a duty to take reasonable care to prevent a fire escaping the Tip. Council submitted it did not owe a duty of care to the plaintiff because there was no physical proximity between the Tip and the plaintiff’s property. That submission was rejected. The court held it was irrelevant that the plaintiff was not an immediate neighbour. Council had relevant control of the Tip and understood that the operation of the Tip was a dangerous activity. The court further held the risk that a fire could escape and potentially burn the plaintiff’s property was a risk that was reasonably foreseeable. Therefore, Council owed a duty to the plaintiff to prevent a fire escaping.
The court accepted that the risk of a fire escaping from the Tip was reasonably foreseeable, was not insignificant and that a reasonable person in the position of Council would have taken “the precautions” outlined by the plaintiff in her pleadings. The precautions included preparing and implementing a fire management plan, creating and maintaining an effective firebreak, consolidating deposited waste into appropriate areas and removing fuel to prevent dangerous build ups. The court accepted that the proposed precautions were not unduly onerous or unusual. In failing to implement the proposed precautions, Council breached its duty of care.
Turning to causation, all experts agreed the main cause of the spread of the fire was the prevailing weather conditions. Council submitted that the highest the experts would put their position was that the precautions “might” have slowed the progress of the fire. The court accepted that submission. The court held that the experts were not prepared to express an opinion that it was more likely than not that the preventative measures “would” have slowed the fire to such an extent as to allow time for firefighters to successfully intervene. The court therefore held the plaintiff failed to show factual causation, and the claim was dismissed.
Implications for you
This case reinforces that in order to succeed, plaintiffs must prove that the breach of duty was causative of the loss. It also highlights the importance of expert evidence in establishing causation. It is not enough for the expert evidence to state that certain precautions “may” have prevented the loss, to establish factual causation the court must be satisfied that the precautions “would” have prevented the loss.