The Supreme Court of Western Australia, Court of Appeal, has confirmed, by a 2:1 majority, the decision of Murphy J, dismissing a claim from Southern Properties Pty Ltd for damage to their grape crop caused by smoke from a prescribed hazard reduction burn.

At the time of the burn, 31 March to 1 April 2004, the Department of Conservation and Environment (DEC) had been made aware that smoke could ‘taint’ a grape crop. A crop suffering smoke taint was worthless. Grapes are susceptible to smoke taint in the period of their development from ‘veraison’ (a grape developmental stage) and harvest. The relevant period in this area of Western Australia was between 14 January and 6 May 2004. ‘Smoke from the prescribed burn tainted the grapes, causing a loss of $620,000.’

The plaintiff grape growers sued the Department alleging both negligence and nuisance and claiming the value of the lost crop. In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [No 2] [2010] WASC 45 Murphy J found that the Department did not owe any duty of care to the plaintiffs’, and if they did owe a duty of care there actions, in all the circumstances, were reasonable and therefore there was no liability.

In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79, McLure P and Buss JA agreed that there was no duty of care. Pullin JA dissented, he would have found that there was a duty of care, breach of that duty and that the Department should be liable for the damage caused.

Determining when an authority, that is required by an Act of Parliament to perform various tasks will owe a duty to individual has casued teh courts a great deal of difficulty. In this case McLure P took the view that teh obligation to manage the public land, in accordance with various management plans including a fire management plan, meant that it did not owe a duty of care to individuals who may be inevitably affected by their actions. The reference to inevitable is deliberate; state authorities are under a duty to take care in their performance of their duties and if they can avoid foreseeable harm, they should, but if the performance of their duty (in this case conducting a hazard burn) inevitably exposes someone to a risk of harm (in this case smoke) then there can be no liability for doing that which they have to do. If there was someway to conduct the burn without creating smoke then they may have had to do that, but where there’s fire, there’s smoke and there could be no duty to avoid creating smoke where that conflicted with a duty to conduct the burn.

McLure P

McLure P accepted the wisdom of hazard reduction burns to reduce the risk to the broader community. He said (at para 40):

After major bushfires in New South Wales, Victoria and the Australian Capital Territory in 2002 and 2003, a Select Committee of the House of Representatives of the Australian Parliament and the Council of Australian Governments conducted national inquiries relating to bushfires. The reports recommended prescribed burning programmes. The Western Australian Government strongly supported prescribed burning and provided additional funding for it in late 2003.

The appellants argued that by causing the fire the respondents owed a duty to guarantee the safety of others. This was based on a decision of the High Court in Burnie Port Authority v General Jones (1994) 179 CLR 520 where the High Court had said

Although the standard of care is that which is reasonable in the circumstances, in the case of such substances or activities a reasonably prudent person would exercise a higher degree of care and, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety.

McLure P thought this decision did not cover this case as the allegation in this case related to damage by smoke, not by fire. Further this was a case where the respondents introduced the fire as they were required to do so by statute and the common law could not impose a duty that was inconsistent with the duties imposed by the statute.

In McLure’s view there was no duty of care and he did noct discuss the issue of whether the respondent’s conduct was or was not reasonable. He did find that the Civil Liability Act 2002 (WA) s 5X further protected the respondent. That section said

In a claim for damages for harm caused by the fault of a public body or officer arising out of fault in the performance or non‑performance of a public function, a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body or officer in the defendant’s position could have made it.

In other words, just because people may disagree on the best way to achieve an objective, that does not establish negligence. Governments have to make a number of choices about how to achieve their objectives and only a plan that is so unreasonable that no other authority would accept that it was a reasonably way to meet the stated objective can constitute negligence. The decision to light this burn on this day did not pass that threshold test and so there could be no liability.

Pullin JA

Pullin JA took a very different view. He was of the view that the respondents had teh power but not the duty to conduct hazard reduction burns, but in doing so they had to consider those that may be harmed by their conduct including harm by smoke that had been brought to their attention. In this context where the respondents were introducing a very great hazard, that is fire, and where not only damage, but the very damage that occurred was foreseeable, they must owe a duty of care.

It would seem remarkable that the respondents should owe no duty of care. If that were so, it would mean that the respondents could exercise the statutory power to light a fire in the forest careless about the damage it might do to neighbouring properties either from smoke or escape of the fire. Some very plain language would have to be used in the legislation to bring about that result. No such language was used.

The next issue he had to consider was whether there was a breach of that duty, that is was the respondent’s conduct reasonable? He thought it was not. Section 5B(2) of the Civil Liability Act 2002 (WA) says:

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

His honour took the view that the probability of harm was well established and there was no doubt that the known risk, ruining the entire grape crop was significant. These factors suggested the burn should not take place. There would be negligence unless those factors were outweighed by (c) and (d).

He found there was no burden in the relevant sense. There was no expense, difficulty or inconvenience (to use the language from Wyong Shire Council v Shirt (1980) 146 CLR 40) in not conducting the burn. The disruption of the DEC planning process involved in deferring the planned burn was not significant.

The critical issue was ‘social utility’, did the community benefit from conducting the burn outweigh the grape growers interest. This is a very interesting part of the judgment as Pullin JA clearly did not accept that hazard reduction burns achieved much in the way of ‘social utility’. He said (at para 269):

Burning of native forest in national parks would seem to be contrary to that current view [that there is social utility in preserving the State’s remaining forests rather than destroying them]. However, successive governments have allowed or encouraged settlements and development in or near State forests. Persons choosing to live near to a State forest must be taken to well know the risk of fire, but many are not by that knowledge deterred from clamouring for the damaging of State forests by prescribed burning in the belief that this will protect them and their property from the risk they assumed. The interests of that group in the community is catered for by the legislation permitting ‘prescribed burning’. This results in the planning of the destruction of up to 200,000 hectares of flora per annum (along with associated fauna) in the south‑west forest regions:

A person living next door to a large area of privately owned woodland is not able to call for hazard reduction by burning of that property because the owner of the woodland is prohibited by law from doing so. However, persons living next to a State forest are able to and do (as the reasons in this case show) exert political pressure to have the flora burnt. According to the Forest Management Plan, there are ‘strongly held views’ for prescribed burning. However, there is a recognition that excessive use of fire can be detrimental to forest ecosystems [142]. There are sections of the community against prescribed burning … The Forest Management Plan ignores those views.

Notwithstanding that there is no adequate science to support the stated objectives of promoting biodiversity and optimising the maintenance of forest ecosystems, burn prescriptions are still dressed up … as being for, inter alia, the objective of ‘protect[ing] and maintain[ing] biological diversity processes and ecological values within the burn area … I would not accept that there is any social utility in prescribed burning for the purpose of promoting biodiversity until there was proper scientific evidence that it had that benefit.

As for the argument that the creation of a mosaic burn patter was reqruied to assist with the management of the risk posed by unplanned wild fires, his honour said:

In 2002 ‑ 2003, CALM had to manage 656 wildfires across the State which burnt out two million hectares and in the Donnelly District there were 51 wildfires (24 caused by lightning) which burnt more than 5,700 hectares. Thus, wildfires naturally create patches of burnt and unburnt forest. Nevertheless, the assertion is that forest has to be further burnt (by prescribed burning) in order to provide ‘strategic’ protection from wildfires. This assertion provides support for the public mantra that prescribed burning is beneficial.

There is no doubt that if the whole of the State forests were cleared, there would be no risk of wildfire, but that at least is out of the question because the community sees public utility in retaining native forests. So the question which presumably should be asked, is whether there is any scientific support for the view that prescribed burning provides protection from wildfires. Scientific information to support the claim that prescribed burning protection would have to be based upon observation of the outcome in control areas where no prescribed burning was carried out over many years and the outcome in comparable areas where prescribed burning is carried out. No reference is made in the reasons to any such scientific evidence. Scientific support for prescribed burning is not provided by post hoc ergo propter hoc reasoning that there have been no serious bushfires in recent years like those in the Dwellingup region in 1961 or in New South Wales, Canberra or Victoria because prescribed burning began some time ago.

Notwithstanding the inquiries post the 2003 fires and those that have occurred after this particular burn, including the findings of the 2009 Victorian Bushfires Royal Commission, Pullin JA was clearly not satisfied that hazard reduction burns achieved any public benefit at all, and in a judgement that may surprise many scientists, including my colleagues in the Fenner School of Environment and Society at the Australian National University, he rejected any claim to scientific validity for any paper, even if referred by the scientific community, that claimed that there was evidence of some benefit.

He went further:

There must be a respectable argument open that prescribed burning is damaging to the interests of the community rather than being of social utility. Prescribed burning:

(a) releases carbon into the atmosphere;

(b) kills and injures wildlife in the areas burnt. This is particularly damaging in the spring during the breeding season for many species;

(c) carries the risk that smoke will be injurious to human health (which the Smoke Management Guidelines seek to minimise at least for the residents ofPerth);

(d) carries the risk of smoke damage to property, as this case reveals;

(e) carries the risk of serious damage to property if a prescribed burn escapes, even if care is taken;

(f) carries the risk of death and injury to humans if a prescribed burn escapes, even if care is taken;

(g) may not be proven to provide for the conservation of biodiversity;

(h) may not be proven, rather than merely asserted, to provide protection to property and human life from wildfires.

It is likely that the reason why there appears to be community support for prescribed burning is explained largely by the one‑sided nature of the press reporting of the subject. Neither the negative aspects of prescribed burning, nor the lack of scientific evidence, is given much attention. However, the calls of persons in favour of more prescribed burning is given great prominence.

Because of the nature of the appeal, he had to accept the trial judge’s finding that there was some social utility in conducting prescribed burns, but in his view it was so little that it in no way outweighed the risk of damage to the plaintiff’s to justify conducting the burn when the risk to the plaintiff’s crop was clearly known.

The respondents had, on previous times, deferred their planned burn of this land and they should have done so again and conducted the burn when the grapes were not at risk. He said:

In my opinion, the risk of harm if the precaution of deferral was not taken, the seriousness of such harm if the precaution was not taken, and the fact that there was no burden (ie no cost, difficulty or inconvenience other than in planning) in taking the precaution, outweighed the ‘social utility’ in carrying out the burn. The fact that the respondents had the power by statute to carry out the burn does not detract from that conclusion. Even if it were correct to say that prescribed burning has ‘high’ social utility, that did not justify taking the foreseeable risk of serious harm of destroying the appellants’ grape crop by burning at a time when the risk of harm was at a peak.

The fact that there was no good reason to conduct the burn that could be balanced against the risk to the growers also meant that the decision was so unreasonable that no authority would think it was a legitimate way to achieve the objectives that the statute imposed on DEC, so s 5X (quoted above) did not provide a defence.

Buss JA

Buss JA agreed with McLure P. The appeal was lost 2:1.

Commentary

There are other issues that were explored in the judgment including the effect of the Civil Liability Act 2002 (WA) s 5W and the Conservation and Land Management Act 1984 (WA) s 132. These were considered by Pullin J but as he was in dissent, and for the sake of trying not to overcomplicate the matter, I have not discussed them here. People who are interested may like to go to the judgement to read his views on these matters.

What is interesting is the effect of this judgement. If McLure P and Buss JA are correct, and no duty is owed by DEC to the grape growers, or if there was no breach of duty as the social utility in conducting the prescribed burn outweighs the individual interest, then individuals are being asked to bear the cost of these community benefits. As this case shows, those costs are not insubstantial (in this case more than $600 000). We may be offended that an agency is ‘sued’ for doing what is meant to be in the community good, but if a government agency is sued, then the government via the managed insurance fund and ultimately all taxpayers share the cost, at a small amount each. As it is we are asking a few individuals to pay the cost of the benefits to a much larger number, the plaintiff’s here are in fact paying for the community benefit rather than being compensated for the losses that we, as a community, require them to face.

On the hand, if Pullin J is right, all the wisdom of many inquiries is simply pandering to a vocal group. Pullin JA noted that what is considered socially useful changes over time, once it was good to clear the forest, now native vegetation is to be preserved. Is hazard reduction burning just another ‘fad’ or is it supported by the science? In any event is Pullin J, in one case, appropriately placed to make that judgment when governments across Australia have determined that it will be national policy to seek to manage fire risk in part by reducing available fuel loads? Pullin JA’s judgement is extraordinary in the extent to which it dismisses the work of many dedicated scientists and foresters who advocate prescribed burning (which is not to say there is no debate, but we can I think give credit of academic honesty to those that argue in favour of such burning –see Gibbons et al, ‘Land Management Practices Associated with House Loss in Wildfires’ PLoSONE 7(1): e29212. doi:10.1371/journal.pone.0029212 for recent scientific study on the effectiveness of hazard reduction to reduce fire losses.

The difference in views between the judges here is largely one of fact rather than law. The majority accepting that hazard reduction burns were required to meet DEC’s statutory obligations and to enhance community protection and Pullin JA being unconvinced of that. As it stands, however, the precedent effect is that the Department does not owe a duty to avoid harm that is the inevitable consequence of its planned response to its statutory edicts.

Michael Eburn

25 April 2012.