The Court found two defendants were liable for 400 plaintiffs’ loss resulting from a bushfire that started with a poorly extinguished campfire. The defendants were found to have been negligent in both lighting the fire in the first place and subsequently failing to check on it for the following 6 days until the bushfire ignited.
In issue
- The key issues in the case were whether the two defendants could be held liable, in negligence and in nuisance, for damage caused to surrounding premises after a large bushfire erupted nearly a week after the defendants lit a campfire on private property.
The background
The proceedings involved 400 plaintiffs who alleged that the 2013 Dunalley Bushfire in Tasmania, which burned a total of 25,520 hectares, was a result of the defendants’ negligence in failing to properly extinguish a campfire on the first defendant’s property. On 28 December 2012 Ms Barrett (the first defendant) and Mr Robinson (the second defendant) lit a campfire in an old tree stump on the first defendant’s property. After the fire had burnt for some hours the second defendant extinguished the fire by kicking dirt onto it, and the first defendant poured water over the dirt. Days later, the first defendant looked out of her window while it was raining and saw steam rising from the site where the campfire had been. On 3 January 2018, some 6 days after the campfire was lit, fire spread beyond the first defendant’s property, ultimately causing over $100 million worth of damage (‘the 2013 Forcett Bushire’). The plaintiffs sued the defendants in both negligence and private nuisance for the damage caused by the fire.
The issues at trial
Causation was very much in issue and Estcourt J was required to determine whether the 2013 Forcett Bushfire emanated from the fire in the tree stump on the first defendant’s property. If causation was established, it then had to be determined whether the defendants breached a duty of care owed to the plaintiffs, which included a consideration of whether the duty owed by the first defendant was non-delegable (and if so, was she then liable for the conduct of the second defendant). The Court also considered whether the plaintiffs had a case in private nuisance.
The decision at trial
His Honour ruled in favour of the plaintiffs, finding that both defendants were negligent in lighting the campfire and failing to extinguish it that night and the next morning, and that the first defendant was negligent in her response to her observation of steam after rainfall on 1 January 2013. The first defendant was held liable for the conduct of the second defendant as the second defendant was on the first defendant’s property at the time of the campfire. It was held that the defendants ought to have followed the Tasmania Fire Service’s guidelines for extinguishing campfires and that the first defendant’s response of merely looking at the site after she noticed stream rising from the site days later was an inadequate response given her concern.
In relation to the issue of private nuisance, His Honour found that in circumstances where the harm is reasonably foreseeable, it is the creation of a nuisance or a failure to abate it, that amounts to fault for the purposes of a nuisance action, and as a result, the action need not arise from a failure to take reasonable care. His Honour went on to find that the lighting of a campfire in an old tree stump was an inherently dangerous activity and, in the circumstances, it was an unreasonable use of the first defendant’s land which caused an unreasonable interference to the plaintiffs’ property.
His Honour did not consider that liability in private nuisance in this case was apportionable under the Civil Liability Act 2002, however considered that the provisions of the Wrongs Act 1954 applied.
His Honour apportioned the claim in an 80/20 split between the first defendant and the second defendant respectively.
Implications for you
This case serves as a reminder that occupiers have a non-delegable duty of care in respect of hazardous activity on their property and despite not taking an active role on the execution of the activity may indeed still be held responsible for the other persons actions.
This decision in respect of the claim in nuisance may need to be reviewed in light of the recent decision of Herridge v Electricity Networks Corporation [2021] WASCA 111, in which, in contrast to the present case, it was found that the claim in nuisance arose from a result of a failure to take reasonable care.
Prestage v Barrett, Thorne v Barrett, Howells v Barrett [2021] TASSC 27
