Causation without a cause

 

Judgment date: 17 April 2019
Citation: Weber v Greater Hume Shire Council [2019] NSWCA 74
Jurisdiction: Supreme Court of New South Wales – Court of Appeal

Background

Greater Hume Shire Council operated a waste disposal site (the tip) at Walla Walla, a town in southern New South Wales.

On 17 December 2009, a fire ignited at the tip and quickly spread to the town of Gerogery which was located 11km south of the tip. The fire destroyed a number of homes including a property owned by Susan Weber.

On 15 December 2015, Weber commenced representative proceedings against the Council in negligence and in nuisance for damages suffered by her and other property owners as a result of the fire.

On 14 May 2018, the Supreme Court of NSW dismissed the proceedings brought by Weber. While it was held that the Council owed a duty of care to those property owners and the duty was breached by Council’s failure to take reasonable precautions to prevent the outbreak of a fire, the trial judge found that Weber had not established causation as she could not establish the cause of the fire or that reasonable precautions would have prevented the escape of the fire.

Questions on Appeal

Weber appealed the finding that she had failed to establish causation on the basis that:

1. causation could be established where the sole probable cause of the fire could not be identified, but the likely causes were all due to the Council’s negligence; and
   
   
2. there was a causal link between the Council’s failure to take precautions against the risk of fire and the damage suffered by Weber.
   
   

The Council also filed a notice of contention challenging the trial judge’s findings that the Council owed Weber a duty of care, that the duty of care had been breached and that there were no defences available to it under sections 42 and 43A of the Civil Liability Act (2002) (CLA).

Decision

On 17 April 2019, the full bench of the Court of Appeal allowed Weber's appeal.

The Court found that the Council owed a duty of care to Weber to take reasonable steps to prevent unintended fires at the tip and to prevent the spread of fire from the tip. The Court also accepted the findings that the Council should have taken the following reasonable precautions to prevent the fire and its spread by:

• implementing a fire management plan;
  
  
• creating and maintaining an effective fire break; and
  
  
• consolidating the waste in appropriate areas.
  
  

The Court dismissed the Council's defence under section 42 of the CLA and found that there were no financial constraints which would have precluded the Council from taking the precautions listed. This was particularly the case as the Council had specific resources allocated to waste management.

In relation to the issue of causation, the Court considered the six probable causes of the fire identified by the experts at trial – dry lightning, spontaneous combustion, residual burn, deliberate ignition, batteries and glass.

The Court categorised these causes into those that could have eventuated from the negligence of the Council and those which could not.

The Court found that the correct question to ask in relation to causation was:

The Court accepted that had the relevant precautions been taken by Council, on the balance of probabilities, the fire at the tip would not have spread and damaged Weber’s property.

Key principles

• This decision serves to establish that there does not need to be a direct causal link between the cause and the damage.
  
  
• If it can be established that the damage would not have been suffered if reasonable precautions were taken, then this is sufficient to establish causation.
  
  
• Traditionally the statutory defences available under the CLA to Councils have been seen as a deterrent to recovery however where Councils have specific resources allocated to manage an issue or area, those statutory defences may not be sufficient to uphold the defence.

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¹ 216.