In Boyle v Yeing [2015] WASCA 241 (1 December 2015) the Court of Appeal in Western Australia upheld a finding that a farmer was liable to his neighbour when a fire that was set to burn off wheat stubble escaped onto the neighbouring property destroying valuable farm equipment.    The case turned on its particular facts rather than saying anything interesting about the law, but I’ll repot it in any event.

The defendant, Mr Boyle ‘was an experienced farmer and was experienced in carrying out stubble burns’.  Further he was ‘also the chief bushfire control officer for the Shire of York and had held that position for 20 years’ ([7]).   He determined to burn off the stubble on 18 May 2009.  At that time of year he was ‘not required to obtain a permit or to notify his neighbour of his intention to burn’ ([6]).   The burn commenced at 9.30am and was concluded at 2.30pm.   At the conclusion of the burn Mr Boyle along with his son and an employee (an Irish backpacker who had been on the property for 2 months and whose only experience with burning off had been gained on that property) drove around the burn and decided that the burn area had been extinguished and was now safe.  Mr Boyle and his son left the area to attend to other matters.  The employee was instructed to remain patrolling the burned area for another hour.  At 4pm this employee ‘considered that the fires were ‘completely out’’ ([11]) so he left too.  Of course the fire wasn’t completely out and an ember carried to the neighbouring property and started the fire that damaged the machinery standing in the stubble paddock of that property.

There was no doubt that Mr Boyle owed a duty to take reasonable care in how he managed the fire.  What became critical in the decision was the fact that the weather had changed since the burn commenced so that by 2.30pm there was a 19km/h wind blowing toward the neighbour’s farm and Mr Boyle knew that there was dry stubble on that farm with harvesting equipment standing amid the stubble.  Accordingly the trial judge found that the patrolling should have continued until dusk when it would be easier to see if there were still embers in trees or in the wheat stubble.    With that knowledge the experienced Mr Boyle left his inexperienced employee to do the final patrols and come to his own conclusion that it was safe to leave.

The trial judge found that there was negligence. On appeal Mr Boyle argued that the evidence did not support the trial judge’s conclusions but the court of appeal rejected each submission finding that the decisions of the judge were open on the evidence and so the finding stands.

There are two interesting observations to make.  First Mr Boyle was in a difficult position of trying to argue that everything he did was in fact and law reasonable, even though it was clearly not enough as the fire did spread and cause damage.    Although the courts try to look at these issues at the point of time of the decision making it is hard not to be influenced by knowledge of what actually happened.  Mr Boyle, and others, may well think that what he did was ‘reasonable’ or ‘what I would have done’ but that would have left Mr Yeing with the cost of the damage to his property.  It’s always hard to say one took ‘reasonable precautions’ against a particular outcome (in this case the fire spreading) when that very outcome occurs.

Second, one of the things a court has to consider when deciding whether or not the defendant’s actions were reasonable is the ‘social utility of the activity that creates the risk of harm’ (Civil Liability Act 2002 (WA) s 5B).   In another Western Australia case, Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79, the Department was not liable for the damage to the plaintiff’s grape crop caused by smoke from a planned hazard reduction burn.  An issue in that case was the ‘social utility’ involved in a burn designed to reduce the bushfire hazard to a community. The majority of the appeal judges in that case found that there was a significant social utility such that the Department was not liable even though they were aware of the risk to the plaintiff’s property and had been asked to defer the burn (see No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012).

In Boyle v Yeing the court found that there was no social utility ‘in the burn in that it was done to advance the appellants’ private economic interests’.   The issue of social utility will clearly play a bigger role when a fire is being set by a government agency in order to protect communities and community assets over a private fire set for private gain.  If one is going to set a fire for private gain there can be no ‘trade off’ to say that the gain to the private landholder is ‘worth’ the potential loss to the neighbour.