Hazard reduction burns or hazard production burns? Duty of care breached by rural landowners

14 May 2020

Despite engaging the Rural Fire Service to perform hazard reduction burns on their property, the New South Wales Supreme Court held that absentee landowners had breached their duty of care to prevent the re-ignition/spread of fire onto their neighbour’s property.

In Issue

  • Did the defendants breach the duty of care owed to the plaintiff?

The background

The defendants were absentee landowners, who asked the Rural Fire Service (RFS) to conduct a hazard reduction burn. On 28 August 2012, 550 acres of the defendants’ property was burnt by the RFS, including land close to the border of the plaintiff’s property. The root structure of a hollow gum tree on the defendants’ property remained smouldering. On 5 September 2012, embers escaped and caused an extensive fire that caused $1.2m worth of damage to the plaintiff’s property.

The decision at trial

The court found that the defendants owed the plaintiff a non-delegable duty of care to prevent the ignition and spread of a fire onto his property. Although the defendants took the reasonable precaution of engaging the RFS to assist them, they had still breached their duty of care by:

  • failing to take available steps to understand the ongoing risk of re-ignition following the burn
  • failing to enquire whether precautions were taken by the RFS to guard against re-ignition; and if they weren’t being taken, to take their own precautions to deal with the ongoing risks

The court held that the RFS would not be liable to the plaintiff by virtue of the Rural Fires Act 1997 (NSW). However, this did not prevent a finding that the RFS was a concurrent wrongdoer as proportionate liability applied. It undertook the burn as a statutory body, knowing that the defendants were absentee landowners that would not have been present to deal with the risk of reignition. Additionally, it had failed to identify the risk, communicate it to the defendants, and outline how that risk could have been dealt with.

The court found that the defendants were 35% liable and that the RFS was 65% liable (despite the fact that it was not a party to the proceedings). It further held that the plaintiff was contributorily negligent, as he had failed to take reasonable precautions to prevent the spread of fire on his property. His contribution was assessed at 10%.

Implications for you

This case demonstrates that the proportionate liability scheme applies to attribute liability to statutory bodies despite statutory immunities. Additionally, it illustrates the scope of the non-delegable duty of care possessed by landowners, and the requirement that they engage in reasonable inquiries to ensure that they have ascertained the full extent of any hazards that could result in a breach of that duty.

Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450

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