Introduction
In claims involving interference with the use and enjoyment of land, actions can be available in both negligence and nuisance, and are often pleaded as alternative causes of action.
The tort of nuisance is often regarded as a form of strict liability and therefore the easier cause of action to prosecute. The problem with this is, characterising nuisance as a form of strict liability can lead to a misapplication of the relevant principles.
These principles were recently considered in the decision of the New South Wales Court of Appeal in Woodhouse v Fitzgerald.1 In that decision, which concerned fire damage to the plaintiff’s property allegedly caused by the defendants, the Court of Appeal overturned the trial judge’s finding2 of nuisance.
One of the principal arguments advanced by the plaintiff was a finding of nuisance could be made regardless of whether the defendants failed to take reasonable care. That argument was rejected, with the Court of Appeal clarifying an apparent misunderstanding of the law of nuisance.
The facts
Mr Fitzgerald and Ms McCoy (defendants) arranged for a controlled burn to be undertaken on their rural property by the Rural Fire Service (RFS). The primary purpose of the burn was to eradicate weeds in compliance with notices issued by the Council. An old hollow tree on the defendants’ property near the boundary to the adjoining property owned by Mr Woodhouse (plaintiff) was not properly extinguished after the burn. It later re-ignited causing a fire to spread and destroy the plaintiff’s house. The loss was assessed at $1.3 million.
Trial decision
The plaintiff commenced proceedings against the defendants seeking damages in negligence and nuisance.
On the question of negligence, the trial judge held the defendants owed the plaintiff a non-delegable duty of care to prevent the re-ignition of the fire and its spread. The non-delegable nature of the duty was said to arise from the nature of the risk of fire escaping the defendants’ property and the plaintiff’s vulnerability to that fire.3 The trial judge found the defendants breached that duty on the basis reasonable precautions could have been, but were not, taken to address the risk, and engaging the RFS was insufficient to discharge their duty.
The trial judge found the precautions that ought to have been taken included: dowsing the tree with water mixed with fire retardant; and knocking it over, exposing the roots, and dowsing and reburying them. In relation to the defendants themselves, and based on the non-delegable nature of the duty, the trial judge found they ought to have made enquiries with the RFS to ascertain what ongoing fire risks had been identified, what precautions were being taken to deal with those risks, and, if they were not being taken by the RFS, to take those precautions themselves.4
On the question of nuisance, the trial judge based her decision, in part, on the following principles set out in the decision of the New South Wales Court of Appeal in Gales Holdings Pty Ltd v Tweed Shire Council:5
‘There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person’s enjoyment of land occupied or owned by that other person, unless the first person’s conduct involves no more than the reasonable and convenient use of its own land (Hargrave v Goldman at p 62).‘
‘[N]uisance is a wrongful interference with another’s enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. …. There must be more than mere harm being done to another’s enjoyment of land. The harm must be caused by the alleged wrongdoer’s use of its own land. … While negligence is not essential, fault of some kind is almost always necessary ….‘
The plaintiff pleaded the defendants were liable in nuisance because, among other things:
- undertaking weed reduction constituted a use of land;
- the defendants knew, or ought to have known, the fire constituted a source of potential nuisance to the plaintiff’s property;
- the spread of fire from the defendants’ property to the plaintiff’s property was an act of nuisance, which could have been avoided by the taking of reasonable care; and
- the damage and loss sustained by the plaintiff was a result of the acts and omissions of the defendants.6
The trial judge found that liability in nuisance was established because, for the reasons discussed in the context of the claim in negligence, the defendants had failed to take reasonable care.
Accordingly, at first instance, the plaintiff’s claims in both negligence and nuisance succeeded, although damages were reduced by 65%, 10% on account of contributory negligence7 and 55% based on the proportionate liability provisions (the RFS being a ‘concurrent wrongdoer‘) under the Civil Liability Act 2002 (NSW).
Decision on Appeal
On appeal, the plaintiff challenged the finding of contributory negligence and the reduction of damages on account of contributory negligence. The defendants cross-appealed, challenging the finding that their duty of care to the plaintiff was non-delegable, that both they and the RFS had breached their respective duties of care, and the finding in nuisance.
The plaintiff additionally sought to maintain an alternative claim in nuisance without reference to a lack of reasonable care. In other words, the plaintiff argued that, unlike negligence, a ‘fault element‘ was not necessary to support a finding in nuisance.8 It had not been necessary to resolve the alternative claim at trial because of the trial judge’s finding there had, in fact, been a failure to take reasonable care.
The Court of Appeal dismissed the plaintiff’s appeal and upheld the defendants’ cross-appeal, overturning the trial judge’s findings on both negligence and nuisance. This was based, in part, on the finding the post-burn monitoring activities conducted by the RFS had been reasonable. As a result, the claim failed in its entirety, rendering the trial judge’s findings on contributory negligence immaterial. Notwithstanding this, the Court of Appeal found the evidence did not establish a lack of reasonable care on the part of the plaintiff and the finding of contributory negligence should not have been made.
In finding neither the defendants nor the RFS had failed to take reasonable care, the issue of whether or not it was necessary to establish fault in order to support a claim in nuisance took on more significance.
In reviewing what was required to establish nuisance, Basten JA (with whom Meagher and Payne JJA agreed) commented ‘The scope, elements and defences to a tort of private nuisance have long been seen as uncertain and remain so‘.9 He then considered the evolution of the law of nuisance and the leading authorities in the area.
One of those authorities was the House of Lords decision in Rylands v Fletcher,10 from which the following principle emerged: where a person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.11 Basten JA considered fire was a dangerous element which fell squarely within the principle in Rylands v Fletcher.
His Honour then turned to the leading decision of Burnie Port Authority v General Jones Pty Ltd12 in which the High Court, in its joint reasons, quoted with approval the following passage from the Privy Council decision in Black v Christchurch Finance Co:13
‘The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour’s property …. And if he authorizes another to act for him he is bound, not only to stipulate that such precautions shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences.‘
This emphasis on the requirement to take reasonable precautions formed the basis of the High Court’s later conclusion that the principle of Rylands v Fletcher should be regarded as ‘absorbed by the principles of ordinary negligence’.14
However, Basten JA noted the High Court qualified this conclusion by stating, ‘there may remain cases in which it is preferable to see a defendant’s liability in a Rylands v Fletcher situation as lying in nuisance (or even trespass) and not in negligence‘. This raised the question of whether this qualification could potentially apply in the current case.
The qualification included reference to two cases, the first being the decision in Northwestern Utilities v London Guarantee & Accident Co,15 which involved a fire in the plaintiff’s hotel caused by a fracture in a gas main belonging to the defendant. After quoting a passage from that decision, Basten JA observed that adopting that decision in Australia might support the shifting of the burden of proof from the plaintiff to the defendant in the sense it would be for the defendant to show reasonable care was taken, rather than for the plaintiff to establish reasonable care was not taken. His Honour noted that it was not clear whether this was, in fact, the law in Australia, but, even if it was, it would not affect the outcome of the case before him.
The second case to which the High Court referred was the House of Lords decision in Cambridge Water Co v Eastern Counties Leather Plc,16 which involved the escape of a chemical potentially capable of polluting a water supply. The High Court noted the requirement of actual knowledge in Rylands v Fletcher had been transformed ‘into a requirement closely resembling, or perhaps even amounting to, a requirement of foreseeability of relevant damage in the event of the escape of the dangerous substance‘.17
While not specifically commented on by Basten JA, this ‘qualification‘ seemed to support, rather than qualify, the conclusion the principle in Rylands v Fletcher had been absorbed by the principles of ordinary negligence, although there might be some question as to the threshold necessary to establish foreseeability in nuisance as compared to negligence.
Based on these authorities, including the High Court decision in Hargrave v Goldman,18 to which the trial judge also referred, the Court of Appeal concluded private nuisance was not established merely as a result of harm resulting from an emanation from the defendants’ land; the use of the land must have been ‘out of the ordinary, unreasonable or otherwise inappropriate‘. However, the Court rejected the contention the duty to take reasonable care was not non-delegable, citing Burnie Port Authority.
In applying the relevant principles, Basten JA considered the defendants’ use of the land was not ‘out of the ordinary, unreasonable or otherwise inappropriate‘. His Honour noted that the primary purpose of the fire, being to eradicate weeds in compliance with a council notice, was a public benefit. It also had the additional benefit of reducing the fire hazard created by high grass, and such burns were common in the area at that time of year.19 Hence, the burns amounted to a reasonable use of the land, and were not in themselves a nuisance.
In relation to the alleged failure to take reasonable care, while the risk of the fire escaping was foreseeable, it had not been shown the defendants knew or ought to have known that the roots of the tree on the border were alight two weeks after the controlled burn. Moreover, as there was no finding the RFS had failed to take reasonable care, any failure by the defendants to monitor the activities of the RFS could not have been causally related to the damage suffered.
Conclusion
It is important to avoid falling into the trap of viewing a claim in nuisance as a form of strict liability. For example, in claims involving the failure to prevent the escape of fire from a person’s land, in order to establish liability in nuisance, it is not sufficient to merely prove causation; the element of ‘fault‘, for example, a failure to take reasonable care, must also be proved.
This does not mean though there can never be a benefit in pursuing a claim in nuisance. One potential benefit is the non-delegable nature of the duty. In other words, it will not be a defence to a claim nuisance that the task of addressing the subject risk was delegated to a third party.
There is also an additional benefit for claims in New South Wales.20 Pursuant to s 5Q of the Civil Liability Act 2002 (NSW), liability for breach of a non-delegable duty is essentially equated to vicarious liability. This has two implications. First, for claims in New South Wales, to establish liability against the landowner, it is not necessary to establish fault on the part of the landowner, it is sufficient to establish fault on the part of someone using the land on behalf of the landowner. Secondly, in New South Wales, claims in nuisance are not apportionable under the state’s proportionate liability provisions.21
The other main benefit in pursuing a claim in nuisance, although generally not relevant to fire damage claims, is, unlike the general position in negligence, damages for pure economic loss can be recovered in nuisance.
1 [2021] NSWCA 54.
2 In Woodhouse v Fitzgerald [2020] NSWSC 450.
3 Ibid [171].
4 Ibid [299].
5 Ibid [362].
6 Ibid [363].
7 This was on the basis the plaintiff failed to ask the RFS if it had identified any risk which had to be monitored after the burn, and what monitoring was being undertaken.
8 Woodhouse v Fitzgerald [2021] NSWCA 54 [24] to [26].
9 Ibid [31].
10 (1866) LR 1 Ex 265.
11 Woodhouse v Fitzgerald [2021] NSWCA 54 at [33].
12 (1994) 179 CLR 520 at 533, 534.
13 [1894] AC 48.
14 Woodhouse v Fitzgerald [2021] NSWCA 54 [37].
15 [1936] AC 108.
16 [1994] 2 AC 264.
17 Woodhouse v Fitzgerald [2021] NSWCA 54 [40].
18 (1963) 110 CLR 40.
19 Ibid [49].
20 Being claims where the proper law of the tort is the law of New South Wales.
21 In the Civil Liability Act 2002 (NSW); see Woodhouse v Fitzgerald [2021] NSWCA 54 [98] to [102].
Special thanks for the contribution of Rebecca Woodrow and Gareth Ward.
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
