I have previously reported on the decision in Woodhouse v Fitzgerald and McCoy (No 2)  NSWSC 450 (see Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)). In that case a landowner was held to be liable to his neighbour when a fire lit, at his request, by the NSW Rural Fire Service escaped. Today the NSW Court of Appeal handed down its decision in an appeal from that earlier decision in Woodhouse v Fitzgerald  NSWCA 54 (and I thank Jason Lewington for bringing this to my attention).
The Court of Appeal found in favour of the defendants (Mr Fitzgerald, Ms McCoy and the RFS) and held that there was no liability for the damage caused by the fire. Basten JA (with whom Meagher JA and Payne JA agreed) delivered the judgment of the court. He said (at ):
In the winter of 2012, Mr Fitzgerald and Ms McCoy (“the owners”) had arranged for the local Rural Fire Service (RFS) to conduct a controlled burn to destroy weeds on “Doran”. The burn was undertaken over two days, being 20 and 28 August 2012. The probable origin of the fire which occurred on 5 September was undetected burning in the roots of an old snow gum on part of the owners’ land which had been burnt on 20 August, and which had been reignited by a strong, dry north-westerly wind which built up on the morning of 5 September.
There was no doubt that the fire on the property owned by Mr Fitzgerald and Ms McCoy (‘the owners’) was lit by the RFS, at their request, and escaped and burned out the property owned by Mr Woodhouse. To establish however that either the owners or the RFS had to make good those losses, Mr Woodhouse had to establish the elements of a relevant cause of action. Mere proof of damage or loss caused by one party is not enough, there has to be a legal basis to shift liability. In this case it was alleged that the fire was both a nuisance and the management of the fire was negligent.
With respect to the allegation of nuisance, Basten JA said (at -, emphasis added):
… Although it was proved, with hindsight, that the roots of the hollow snow gum were alight two weeks after the controlled burn, it was not proved that the owners (or Mr Knowles [from the RFS]) knew, or ought to have known, that that was the case. No doubt there were many foreseeable risks of escape of the fire, including a sudden high wind arising before the burn was completed. Had there been no risk, it would not have been necessary to have tankers at the property on the day of the burn. However, it is not the case that private nuisance is established as a result of any harm resulting from an emanation from a person’s land. The use of the land must be out of the ordinary, unreasonable or otherwise inappropriate. That was not this case.
Although the primary purpose of the burn was the destruction of weeds (a public benefit, in compliance with the notices given by the Council), it had an additional public benefit, as Ms McCoy noted in her evidence, by reducing the fire hazard created by the high grass. Such burns are common in eastern Australia in winter months; they constitute a reasonable user of the land, and are not in themselves a nuisance. They are regulated by the Rural Fires Act. Mr Woodhouse ran no case to the contrary: rather, he assumed that the lighting of any fire created a nuisance where there was an escape, for which the owners were strictly liable. That was not consistent with the general law principles as to the elements of private nuisance referred to above.
In short, the fire affected Mr Woodhouse’s enjoyment of his land but that is not sufficient. To establish nuisance, he had to show that the activity undertaken by the owners was ‘out of the ordinary, unreasonable or otherwise inappropriate’. Conducting a controlled burn, even for the dual purpose of weed and fire hazard control in winter is none of those things.
To succeed in negligence the plaintiff has to show that there was something that the defendant did not do that they reasonably should have done, or that they did something that they reasonably should not have done. Basten JA said (at ) ‘The critical step which the [trial] judge was satisfied should have been taken but was not, was to “knock over” the old hollow eucalypt, so as to expose its roots and allow the fire to be extinguished and to bury what remained.’
With respect to this fire, His Honour said (at ):
The nature of the risk where a controlled burn had passed fallen trees or logs and even standing hollow trees was well known to, and described by, a number of witnesses who were involved with the RFS or had specific expertise in relation to fire. The complaint by the owners was that (i) no witness criticised the steps taken by the RFS in their post-burn monitoring activities; (ii) although the judge accepted that the hollow snow gum on the knoll was the source of the fire on 5 September, no witness was critical of Mr Knowles’ conduct in checking the tree on prior occasions and not being aware that there was fire continuing to smoulder somewhere underground, although it was generating no heat which could be felt at ground level and, presumably, no smoke. Further, the expert called on behalf of Mr Woodhouse (Professor Adams) was clear in his opinions that no criticism could be directed at the RFS.
In finding negligence the trial judge relied on the fact that another tree, that had been identified as containing fire, had been bulldozed and extinguished. But showing that the RFS knew of the risk and could do something about it is not enough. At  His Honour said:
The mere fact that a particular precaution might have been taken, in the knowledge that the situation contained a contingent risk, namely an undetected fire, but without any basis for thinking that the risk in fact existed, did not entail the conclusion that the only reasonably open course was to bulldoze the tree. There was in fact no evidence to suggest that the course was the only reasonably available course. Professor Adams agreed it was a matter of judgment to be exercised, in this case, by Mr Knowles. Further, the finding of negligence assumed that Mr Knowles’ focus should properly have been on this tree to the exclusion of other parts of the property. Since the tree was surrounded by burnt grass, it was clearly thought by Mr Knowles to constitute less of a risk than Wolfram Hill…
And at :
In my view, on the evidence available to the trial judge, a finding of lack of reasonable care was not available. While it may be accepted that the standard of care is high when dealing with fire, and it may also be accepted that there was in fact a precaution which probably would have succeeded in avoiding the subsequent outbreak had it been taken, it does not follow that the failure to take the precaution of itself demonstrated that the precaution was necessary to fulfill a duty of care. No witness supported such a conclusion… The controlled burn was an appropriate exercise to be undertaken on “Doran” by responsible owners, carried out at the correct time of year (winter), managed by the appropriate authority (the local RFS), which did not get out of control, and was followed by appropriate monitoring of the fire ground. Accordingly the finding of liability, whether in negligence or nuisance, must be set aside.
In summary he said (at -) that the tree from where the fire spread:
… was identified by Mr Knowles as a potential source of risk. His evidence that he checked the tree on two occasions, using an ungloved hand to test the bole and the soil around its base for warmth was unchallenged and was accepted by the trial judge.
There was also no dispute as to what should have been done if the tree had been thought to contain unextinguished fire: it should have been knocked over by a bulldozer (which was available), the fire extinguished and the remains reburied. That was not done because Mr Knowles was satisfied that the fire ground, including the tree, was cold and “benign”.
Accepting that a high standard of care is required of those who light fires on a property, albeit in winter and for an entirely legitimate purpose, no witness suggested that Mr Knowles’ conduct was other than reasonable and appropriate in the circumstances. The finding of the trial judge that Mr Knowles was negligent, not being supported by the evidence, must be set aside. There was no support in the evidence for a finding that the owners personally should have done more.
Rural Fires Act 1997 (NSW) s 128
It was accepted that the firefighters and the state were protected from legal liability by s 128 of the Rural Fires Act. The trial judge had determined that the owners were 35% responsible for the fire and the RFS 55% (total 90%). The remaining 10% was due to Mr Woodhouse’s contributory negligence (a finding of the trial judge that was also set aside by the Court of Appeal at [110)]. The trial judge did not however award Mr Woodhouse 90% of his losses to be paid by the owners. He ordered them to pay 35% of the assessed losses. Because the RFS enjoyed immunity and were not parties to the action no order was made against them.
In the appeal Mr Woodhouse argued that only a party that was liable could be a joint wrongdoer and liable for their share of the losses. Because the RFS was protected by s 128 they could not be a joint wrongdoer and so the owners should meet the entire (90%) liability.
The Court of Appeal agreed and held (at ) that:
… if the owners were liable for the damage suffered by Mr Woodhouse, that liability was not in respect of an apportionable claim in circumstances where members of the RFS were not and never had been liable with respect to that damage
That is because ‘none of the persons who carried out the controlled burn could be liable for the escape of the fire’ (see ) there could be no apportionment of losses or responsibility between a liable party and a non-liable party. The owners could not move their liability to a entity (the RFS) that could not be liable and in so doing deprive a plaintiff of their entitled (if they are entitled) compensation. Of course, in this case there was no liability so this argument is legally important but did not affect the outcome of this case.
A non-delegable duty is, as the name suggests, a duty that cannot be delegated to others. Where a person has a non-delegable duty, they are liable for the action of those they entrusted to perform a task such as do work that carries the risk of fire. In this case the trial judge had found that the owners owed a non-delegable duty to Mr Woodhouse but even so, they were only liable for their direct contribution to the losses. In my commentary on that decision, I said:
I confess I fail to understand Her Honour’s reasoning on this point. If the duty that the defendants owed was a non-delegable duty to ensure that care was taken, their breach was not only the failures set out  and quoted above, but also a failure to ensure that the RFS did all the things they should reasonably have done and a failure to make sure those things were in fact done… at least in my view, the finding seems inconsistent with the rationale behind the idea of a non-delegable duty of care.
I won’t be so bold as to suggest that Basten JA ‘agreed’ with me but he did cite a report (at ) where it was said that ‘to apply proportionate liability in a case where one defendant’s liability arose simply from its vicarious liability for another defendant would completely undermine the principles of vicarious liability and the policy behind them…’ His Honour agreed and held that if there was a non-delegable duty, and if there had been a breach of that duty, then the owners had to be liable for the consequence of that breach (ie the entire damages bill). They could not apportion their liability to those that they were vicariously liable for.
One can see the importance of that in another context. Employers are vicariously liable for the negligence of their employees. If on being sued they can show that the employee was 90% responsible for the negligent action and the employer was only 10% responsible that does not allow them to avoid 90% of the liability. If it did it would completely defeat the notion of vicarious liability.
If, in this case, the owners were vicariously liable for the negligence of the RFS (if there had been negligence) then they would have had to compensate Mr Woodhouse for that negligence. That is what vicarious liability means.
The outcome means that the trial judge’s findings that:
1. There had been negligence by the owners;
2. There had been negligence by the RFS;
3.There had been contributory negligence by Mr Woodhouse; and
4. That the damages to be paid could be apportioned between the owners and the RFS
were all set aside. The conduct of everyone had been reasonable. Sometimes bad things, even foreseeable things, happen but it does not mean anyone is to blame. It was reasonable to set a weed and hazard control fire, the actions taken by the owners and the RFS to mitigate the risk were reasonable, their post fire inspections were reasonable. They had no reason to knock down the tree because they inspected it and had no reason to suspect, two weeks after the event, that there was heat and fire in the roots.
A commentator on the Supreme Court’s Facebook page asks ‘who bares the cost of re building Mr Woodhouse’s house if he doesn’t have insurance?’ and the answer is ‘he does’. This case again confirms that just because bad things happen that are not your fault, it does not mean someone else has to pay. In an English fire case, where the defendant was not liable, Lord Justice Ward said ‘The moral of the story is … make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore  EWCA Civ 1248 at ).