Thinking | 6 July 2021

A smouldering burn: Hall & Wilcox secures justice for the victims of the Forcett/Dunalley bushfire

By Matt McDonald, George Ioannidis and Sam Tempone

Following one of the biggest civil cases in Tasmanian legal history, the Supreme Court of Tasmania has found a landowner liable in both negligence and private nuisance for property damage arising out of the 2013 Forcett/Dunalley bushfire. The bushfire burnt through much of the Tasman Peninsula and caused losses of approximately $100 million. Our team, led by Matt McDonald, acted for over 400 plaintiffs and their insurers in three proceedings that were heard concurrently.

On 28 December 2012, the landowner, Ms Barrett, and her then partner, Mr Robinson, lit a small campfire in the pit of an old tree stump on Ms Barrett's Forcett property. They went to sleep that night after pouring two half-buckets of water and kicking some soil over the coals. Despite seeing steam emanating from the stump during rainfall a few days later, Ms Barrett did nothing more to ensure the fire was extinguished.

The case against Mr Robinson was settled and discontinued following mediation, but the case against Ms Barrett proceeded to trial in April and May 2021.

Justice Estcourt accepted our case that the campfire was not properly extinguished and continued to smoulder underground through the stump’s root system (for a number of days) before reaching the surface on 3 January 2013 and igniting dry grass. The fire then spread rapidly into a heavily forested gully and quickly developed into an unstoppable bushfire which continued burning for several weeks, destroying 93 homes and scores of other buildings.

Justice Estcourt found that Ms Barrett breached her duty of care by lighting the fire in the old stump (which was an illegal act under s.69 of the Fire Service Act 1979 (Tas)) and by failing to take sufficient precautions to ensure the fire was extinguished, such as checking the fire pit in the days following or responding when she saw steam coming from the stump. When a landowner lights fire in open air on their property it attracts a non-delegable and highly stringent duty of care. Ms Barrett’s efforts to ensure the fire was extinguished were found to be 'perfunctory at best'.

The defence strategy of Ms Barrett's liability insurer (RACT) was to put the plaintiffs to proof on causation and to seek to discredit the Tasmanian Fire Service (TFS) investigation as to fire cause. In doing so, they argued there was insufficient evidence that the fire was caused by a smouldering burn through the stump’s root system and floated a theory (unsupported by expert evidence) that there was a second fire which started shortly before the fire on Ms Barrett’s property, which was the real cause of the bushfire.

This strategy fell flat, with Justice Estcourt rejecting the criticism of the TFS fire investigation and finding that the plaintiffs had established an 'overwhelming case' that a smouldering fire in the stump and its root system had caused the bushfire. His Honour rejected entirely the evidence of the two fire investigation experts relied on by Ms Barrett, one of whom (Colin Tomas) drafted his report more than four years after inspecting the scene without taking notes, the other of whom (Mark Gilmore) was found to lack credibility and impartiality as an expert witness.

Justice Estcourt also rejected the 'second fire theory', for which there was no credible evidence. His Honour noted that 'the consideration that this is a circumstantial case does not mean that the first defendant can throw up any speculative theory as to possible alternative causes for the loss and damage that is the subject of the claim, and rely upon that speculation as a basis for contending that the plaintiffs have failed to establish their case'.

Liability for the claim in negligence was apportioned 80% against Ms Barrett and 20% against Mr Robinson.

As to private nuisance, Justice Estcourt accepted our submissions that the fire caused an unreasonable interference with the plaintiffs' interests in land. It was held that no element of fault is required to establish private nuisance save for reasonable foreseeability that the relevant act or omission (lighting the fire and failing to ensure it was extinguished) might result in such unreasonable interference. Given that this cause of action did not 'arise from a failure to take reasonable care', Ms Barrett’s liability in nuisance was found not to be apportionable under the Civil Liability Act 2002 (Tas). This is an important finding, and a departure from the approach taken by the NSW Court of Appeal in Woodhouse v Fitzgerald [2021] NSWCA 54. However, the contribution provisions in the Wrongs Act 1954 (Tas) applied such that the allocation of liability between the defendants was held to be the same as would apply if the nuisance claim was apportionable (80%/20%)

This historic judgment (following the first ever fully electronic trial in the Supreme Court of Tasmania) will result in compensation being paid to hundreds of bushfire victims. It demonstrates that an overwhelmingly strong circumstantial case cannot be defeated with speculative theories and second-rate expert evidence.

Read the full judgment.

Contact

Matt McDonald

Matt is an experienced insurance lawyer acting for leading insurers, specialising in public and product liability.

George Ioannidis

George is an experienced insurance lawyer with expertise in common law damages claims and complex, large-scale litigation.

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