Part 1A - Negligence

In August 2012 the Rural Fire Service (RFS) carried out controlled burns on Mr Fitzgerald’s property. In early September strong winds reignited a hollow tree and carried a burning branch onto Mr Woodhouse’s neighbouring property, where the fire spread and ultimately destroyed his house. Mr Woodhouse brought proceedings against Mr Fitzgerald alleging that he had breached a non-delegable duty to prevent foreseeable risk of harm from the spread of fire, and that the fire constituted an act of nuisance that could have been avoided by taking reasonable care. The primary judge found that the RFS had been negligent, and that Mr Fitzgerald owed a non-delegable duty to Mr Woodhouse in relation to the risk of the spread of fire, apportioning the loss between Mr Fitzgerald and the RFS. The RFS is exempted from liability by the Rural Fires Act 1997 (NSW).

On s 5Q: It is an open question how s 10 of the Law Reform (Vicarious Liability Act 1983 (NSW) and s 5Q of the Civil Liability Act apply in relation to non-delegable duties where the agents in question enjoy statutory immunities from liability: [49].

The appellant’s farm, “Myack”, was extensively damaged by fire in September 2012. The appellant claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The respondents acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which they did not do. The RFS identified that a tree on the boundary of Doran was the source of the

5 September fire, reigniting after not having been fully extinguished after the controlled fire.

The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.

On s 5Q: Because the respondents’ duty to the appellant was non-delegable, s 5Q requires that the extent of the respondents’ liability for such negligence be determined as if they were vicariously liable for the RFS’ acts or omissions: [249]. However, s 5C does not make the owners vicariously liable for negligence on the part of the RFS: [252]. The non-delegable duty which the respondents owed the appellant required them to ensure that the RFS exercised reasonable care, in the sense that they would be liable if the RFS failed to do so, even if the RFS itself would have no liability

in negligence to the appellant: [255].