NSW Court of Appeal finds Council liable to owner of property destroyed by fire23 May 2019 | State & Local Authorities
The NSW Court of Appeal overturned a lower Court decision that factual causation was not established by the owner of a property which was destroyed by a fire that escaped from a Council owned waste facility.
- Whether causation was established where a sole probable cause of the fire could not be identified, but the likely causes were all due to Council’s negligence; and
- If so, whether a causal link was established between Council’s failure to take precautions against the risk of fire and the damage suffered by the appellant.
Council also appealed against the trial judge’s findings in respect of duty of care, breach of duty, and rejecting Council’s defence under sections 42 and 43A of the CLA (NSW).
Greater Hume Shire Council (Council) operated the Walla Walla Waste/Recycling Depot in New South Wales (the Tip). On 17 December 2009, a fire ignited at the Tip. It spread beyond the border of the Tip and travelled 11kms south east to the township of Gerogery. In total, approximately 5,200 hectares of land was burnt. The appellant’s property was directly in the fire’s path and was destroyed by the fire.
At first instance the trial judge held that Council owed a duty of care to prevent the fire escaping. The risk of a fire escaping from the Tip was reasonably foreseeable, not insignificant and a reasonable person in the position of Council would have taken 'the precautions' outlined by the appellant in her pleadings. However, the trial judge held that the expert evidence did not establish that if the precautions had been taken, the progress of the fire 'would' have been sufficiently slowed to allow firefighters time to intervene. The appellant therefore failed to show factual causation and the claim was dismissed.
The Decision on Appeal
The Court of Appeal upheld the trial judge’s findings in respect of duty of care and breach of duty.
With respect to causation, the Court of Appeal accepted the appellant’s submission that the trial judge wrongly determined the issue by a finding (which was factually correct) that the first person to arrive at the Tip to fight the fire was already too late to prevent the fire escaping (and therefore, Council’s failure to take the precautions was not causative of the appellant’s loss). The Court of Appeal accepted that the correct approach required an estimation of the progress of the fire had the relevant precautions been taken. This was not a question that could be answered simply by reference to the actual progress of the fire.
The Court of Appeal accepted that the correct analysis involved consideration of the cumulative effect of the various precautions that were deemed reasonable. The trial judge did not do this. The Court of Appeal held that the appropriate inference on the evidence was that the fire fighters probably would 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 it did. The additional factor of the reduction in the likelihood of the fire commencing meant that the appellant established her case.
With respect to the statutory defences, the Court of Appeal held that s42 only allows the Court to consider the availability of unallocated funds, not the general allocation of resources. Council’s financial statements showed there were sufficient unallocated funds available at the relevant time to undertake the precautions necessary to reduce the risk of a fire escaping the Tip. Finally, the Court of Appeal held Council’s management of the Tip was not undertaken pursuant to a special statutory power and therefore, s43 was not engaged.
The appeal was therefore allowed and judgment was given for the appellant.
Implications for you
This case reinforces that when analysing causation, it is necessary to consider the acts/omissions that constitute the breach of duty. If the evidence establishes that had the negligent acts not been performed/the omitted actions been undertaken the plaintiff would not have suffered loss, causation will be established.