Hall & Wilcox clients win judgment in Lucindale bushfire litigation
Brinkworth & Ors v Copping & Ors, Brinkworth & Ors v Higgins & Ors, Brinkworth & Ors v Justin & Ors, Brinkworth & Ors v Trimboli & Ors [2026] SASCA 50.
The South Australian Court of Appeal has unanimously upheld judgment in favour of Hall & Wilcox’s clients in mass tort litigation arising from the devastating 2021 Lucindale bushfire.
Led by Partner Liam Campion, we acted for a consortium of insurers and 132 affected property owners. The Court of Appeal confirmed liability in negligence and in private nuisance, rejecting the defendants’ [1] appeal and affirming the trial judge’s findings.
Background
The Lucindale bushfire commenced on 11 January 2021 on the defendants’ large-scale farming property.
The central issue at trial was causation. Our clients [2] contended that the fire originated from a vegetation burn heap that had been lit during earlier farming activities and was left unmonitored. It was alleged that the heap smouldered internally under a layer of soil for an extended period before burning to the surface and igniting surrounding vegetation in windy conditions.
The defendants denied this, arguing instead that the fire was caused by a lightning strike to a tree approximately six weeks earlier, resulting in smouldering combustion within the tree before escaping in heavy winds.
Trial judgment
Chief Justice Stein accepted our clients’ case, finding that the vegetation heap was the probable cause of the fire.
Her Honour relied on a combination of expert bushfire investigation evidence, physical indicators at the fireground, aerial imagery and eyewitness testimony in finding that the vegetation heap:
was poorly constructed and inconsistent with Country Fire Service guidance, so as to be conducive to smouldering combustion;
had been ignited by the defendants, but had not been monitored or extinguished;
underwent prolonged internal smouldering; and
ultimately ignited surrounding vegetation, causing the bushfire.
The defendants’ pleaded lightning and smouldering tree theory was rejected as being implausible, with Chief Justice Stein criticising the expert witnesses called by the defendants for inadequate relevant bushfire investigation experience and for a lack of impartiality and objectivity.
Her Honour declined to accept the reliance of the defendants and their appointed expert on a theoretical mathematical model of backing fire spread, finding that the equation and model was not designed or suitable for determining the origin of a bushfire after the event, and that it failed to adequately account for volatile real world variables.
The defendants were found to be liable in negligence and in private nuisance.
Read the full trial judgment.
Court of Appeal judgment
The defendants challenged the trial decision on two main grounds:
- ‘Binary causation’ argument – that the trial judge wrongly treated the case as a choice between two competing theories and accepted our clients’ case by default.
- ‘Incontrovertible fact’ argument – that the mathematical fire spread equation should have been treated as determinative, excluding the burn heap as the probable origin.
The Court of Appeal unanimously rejected both arguments.
On causation, the Court held that the trial judge did not approach the case as a binary choice at all. Rather, her Honour was positively persuaded by our clients’ evidence that the burn heap caused the fire, based on a detailed assessment of the expert, physical and eyewitness evidence at trial.
The Court emphasised that:
- the defendants’ pleaded lightning theory was rejected as being not even a ‘realistic possibility;’ and
- our clients’ heap theory was independently and positively supported by compelling expert, physical and reliable eyewitness evidence.
The findings at trial were therefore consistent with the correct legal test – proof on the balance of probabilities of our clients’ causation theory.
The Court also rejected the defendants’ contention that a theoretical equation and modelling out of a book was an ‘incontrovertible fact’ that needed to be followed in preference to all other evidence. The Court noted the trial judge’s findings that the equation and model:
- was not designed for determining bushfire origin after the event;
- had not been used for that purpose in any previous bushfire investigation;
- could not reliably account for the variable and unpredictable behaviour of real bushfires; and
- was not considered reliable by the experts with relevant bushfire investigation experience who gave evidence at trial.
Importantly, the Court accepted that bushfires are influenced by dynamic factors such as shifting winds, terrain and uncertain ignition timing – none of which can be adequately captured by fixed-input modelling. These real-world variables, combined with the reliable eyewitness evidence of the actual erratic wind conditions and movement of the Lucindale bushfire in its early stages meant that the theoretical model was not an ‘incontrovertible fact’ or compelling inference that was inconsistent with the heap theory.
The Court of Appeal’s rejection of the defendants’ appeal will result in Hall & Wilcox’s clients, the victims of the bushfire, receiving significant compensation. Moreover, the case demonstrates the critical importance of high quality, experienced and impartial expert evidence in a circumstantial causation case.
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