Liable, but without a more probable than not cause
June 13, 2019
Weber v Greater Hume Shire Council  NSWCA 74
The defendant (respondent on the appeal), Greater Hume Shire Council (Council), operated a waste disposal site (the tip) on a reserve south-west of Walla Walla, NSW. The plaintiff (and appellant), Ms Weber, resided in Gerogery, NSW, which is located 11km from the tip.
On 17 December 2009, a fire ignited at the tip. The fire spread to Gerogery where it destroyed the homes and personal property of numerous residents, including
Ms Weber commenced representative proceedings in the Supreme Court of NSW against Council seeking to recover losses suffered by her and the class of persons she represented on the basis that the fire resulted from Council’s negligence in its management and operation of the tip.
Both Ms Weber and Council retained expert witnesses, who provided evidence as to the probable causes of the fire and what precautions should have been taken by Council to avoid the risk of the fire igniting and spreading. The weight of the expert evidence was that the fire was likely caused by spontaneous combustion, lensing effect of glass or arcing of a vehicle battery (with spontaneous combustion being most likely); however, no single probable cause could be established. The experts agreed that reasonable precautions which could have been taken by Council to reduce the risk of ignition and spread of fire were:
- Separating the different types of rubbish deposits within the tip;
- Creating and maintaining fuel free zones and an appropriate firebreak;
- Compacting and covering waste with dirt or inert material; and
- Removing (or minimising) grass foliage and trees within the tip.
At first instance, the Court found that Council owed and breached its duty of care by failing to take reasonable precautions to avoid the risk of a fire igniting at and spreading from the tip. However, the Court dismissed Ms Weber’s claim on the basis that she had failed to establish the sole probable cause of the fire or that those precautions would have prevented the fire from spreading from the tip, rather than merely slowing the spread of the fire.
Ms Weber appealed the decision on the grounds that:
- Although a sole probable cause of the fire had not been established, all likely causes of the fire could have been averted had Council taken reasonable precautions; and
- The Court erred in finding that the fire would have spread even if Council had taken reasonable precautions, and that Council’s failure to take those precautions was not a relevant cause.
The NSW Court of Appeal (comprising Basten JA, Gleeson JA and Sackville AJA) allowed Ms Weber’s appeal and gave judgment in her favour against Council, with the outstanding issues in the representative proceedings being remitted to the Supreme Court of NSW.
In allowing the appeal, the Court of Appeal found that:
- The most likely cause of the fire was spontaneous combustion, however it was not necessary for the Court of Appeal to be satisfied on the balance of probabilities that spontaneous combustion was the cause. The only other likely causes were the lensing effect of glass and arcing of a vehicle battery. As such, the Court of Appeal considered it was more probable than not that one of these was the cause of the fire.
- Council failed to take a number of precautions to avoid the risk of fire igniting and spreading from the tip. Within the tip, these precautions included reducing dried vegetation in the tip and slashing the grass between the piles of waste and between the waste and boundary fence. Other precautions which the Court of Appeal accepted should have been taken by Council included compacting and covering the waste and maintaining a firebreak around the tip.
- It was still necessary to consider whether the limited resources available to Council meant that those precautions were beyond those which should have reasonably been undertaken. For that purpose, this required considering the burden of adopting those precautions only at waste disposal facilities operated by Council, and not on other land owned or occupied by Council. In this respect, while the evidence showed that the tip operated at a loss (as expected), there was evidence that Council received unallocated grants and maintained a waste management fund, for which the actual expenditure prior to the fire was actually less than the budgeted expenditure. This indicated that there had been ‘ample funds’ available to Council to take all the identified precautions. Consequently, the Court of Appeal concluded there was no evidence that Council was reasonably precluded from taking those precautions.
- Had Council taken those precautions, a fire arising from any of the likely causes would probably have been prevented and if a fire ignited, would have been effective in slowing the spread of the spread of the fire such that, on the balance of probabilities, the fire would have been contained within the tip.
- By reason of the above, Ms Weber successfully established that Council’s failure to take reasonable precautions caused the fire to spread and cause the loss and damage to her and the property of the other class members.
The NSW Court of Appeal’s acceptance that causation can still be established, even if the plaintiff is unable to establish a single probable cause of the loss (provided that all likely causes could have been avoided but for the defendant’s negligence), is encouraging to insurers involved in recovery fire claims where the evidence is destroyed and it is often difficult to identify a single probable cause of the fire.
Further information / assistance regarding the issues raised in this article is available from the author, Stephanie Lee, Associate, or your usual contact at Moray & Agnew.
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