District Court New South Wales Medium Neutral Citation: M & A Wood v C & R Christopherson [2013] NSWDC 233 Hearing dates: 18, 19, 20, 21 November 2013 Decision date: 28 November 2013 Before: Judge Haesler SC Decision: (1) Verdict and judgment for the Plaintiffs against the Second Defendant in the sum of $25,000; (2) Verdict for the First Defendant. (3) The exhibits may be returned after 28 days. (4) If costs cannot be agreed the parties have liberty to apply on 7 days notice to the Court within 21 days. Catchwords: TORTS -escape of fire - causation of damage - negligence in lighting fire - failure to prevent spread - duty of care - breach of duty - non- delegable duty of care of landholder-damages agreed Legislation Cited: Civil Liability Act 2002 Evidence Act 1995 Cases Cited: Bootle v Barclay [2013] NSWCA 142. Briginshaw v Briginshaw (1938) CLR 336-361 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Fletcher v Rylands (1866) LR 1 Gardner v Northern Territory of Australia [2004] NTCA 1 Hargrave v Goldman (1963) 110 CLR 40 Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 Waverley Council v Ferriera [2005] NSWCA 418 Whinfield v. Lands Purchase and Management Board of Victoria and State Rivers and Water Supply Commission of Victoria (1914) 18 CLR 606 Wyong Shire Council v Shirt (1980) 146 CLR 4 Texts Cited: Fleming's The Law of Torts 10th Edition, C. Sappideen & P. Vines, Lawbook Co, 2011 Category: Principal judgment Parties: Plaintiffs: A & M Wood Defendants: R & C Christopherson Representation: Plaintiffs: Mr D Toomey Defendants: Mr C Alexander Plaintiff: Whitely, Ironside & Shillington Defendants: Campbell Paton & Taylor File Number(s): 2012/00084602-1 Judgment Introduction 1Morrie and Adele Wood own and farm "Woody's Hill", a property of about 130 acres on Gowan Road at Lewis Ponds to the north east of Orange, NSW. The first defendant, Craig Christopherson, owns and farms a property "Tulgeywood" which bounds Woody's Hill on the south, east and west. His father, Ralph Christopherson, the second defendant, owns and farms "The Vale" which forms, in large part, Woody Hill's northern boundary. There is also a small road reserve to the West of Woody's Hill. The road reserve adjoins Woody's Hill, The Vale and Tulgeywood. An old Cobb & Co route, now a public road, goes north south across Tulgeywood near a gate to the west of Woody's Hill. Beau Christopherson worked on both Tulgeywood and The Vale. He is Craig's son and Ralph's grandson. He was at all relevant times a child. 2On 29 July 2011 a fire spread on to, and across, a large part of Woody's Hill. The fire caused the plaintiff's loss. It destroyed or damaged pasture, trees and new and old fences. The parties have agreed, subject to my findings as to liability, on the extent of that damage and loss. The real and remaining issues in dispute are the cause of the fire and the liability of either defendant for the loss the fire caused the plaintiffs. Issues in dispute 3The plaintiffs assert the first defendant, through the agency of either his son or grandfather or both, lit the fire or that the second defendant lit the fire. They also assert the first defendant is liable for the negligence of his son. They assert that weather conditions were such that it was either, negligent to light the fire at all or that it was negligent to leave a fire unsupervised or negligent to take proper precautions to contain the spread of the fire. 4Mr Toomey, on the plaintiffs' behalf, puts their claim on four bases: (1)The second defendant or Beau Christopherson acting at the request or direction of the first defendant lit the fire, making the first defendant liable for that negligence, as he owed a non-delegable duty of care to other landholders to see that due care was taken, given the nature of the activity. (2)The second defendant lit the fire and failed to supervise and take proper measures to contain the fire making him liable for all the damages caused by his negligence. (3)If the fire was not lit by either the first defendant or Beau Christopherson the second defendant, was aware of the fire at an early stage and, given he was in a position to do so, his failure to immediately control and contain the fire was a breach of his duty of care. (4)The second defendant's later use of a tractor and then a bulldozer in an attempt to control the fire was so incompetent and negligent that he is liable for the damage caused to Woody's Hill and its fences. 5The first and second defendants, through their counsel Mr Alexander, respond that there is a lacuna in the plaintiffs' case, as there is no evidence how or where the fire started. It was submitted from the outset that I could not find, on the balance of probabilities, that is, be 'comfortably satisfied', that either Craig Christopherson, Ralph Christopherson or Beau Christopherson alone, in combination or at the direction of one or the other, lit the fire or left it unattended in breach of a duty of care owed to other land holders. Nor could I find that Ralph Christopherson, on seeing the fire, had a duty to do more than he did to extinguish and control the fire. It was submitted that any subsequent damage to Woody's Hill and its fences by the second defendant's use of the tractor and bulldozer were a result of his best endeavours to extinguish and control the fire and the principle of necessity absolves him of liability. Legal principles 6A judge must address both breach of duty and causation of damage. The determination of causation in a claim for damages for negligence in New South Wales is subject to the provisions of Div 3 of Part 1A Civil Liability Act 2002 (NSW) ("CLA"). Section 5E CLA provides that, in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 7Part 1A CLA applies to any claim for damages for harm resulting from negligence. "Negligence", means the failure to exercise reasonable care and skill. Section 5D states the governing principles; relevantly: "(1) A determination that negligence caused particular harm comprises the following elements: (a) That the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." 8It must be proved that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission, which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm, will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. 9The determination of the issues here also involves a consideration of s5B CLA. Pursuant to s 5B(1), if I find the risk was foreseeable and that it was not insignificant the real question is what precautions a reasonable person in the defendant's position would have taken. This is to be determined by considering the matters referred to in s 5B(2): see Wyong Shire Council v Shirt (1980) 146 CLR 40, at [47]-[48] and Waverley Council v Ferriera [2005] NSWCA 418. 10There is no evidence, from which it could be concluded or inferred, the first defendant lit or had an opportunity to monitor or contain the fire himself. So far as his potential liability is concerned the issues involve the application of the principles canvassed by the High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 "Burnie'. It would seem the principles set out in Burnie are clearly contemplated by and covered by what is set out in s 5D CLA. 11The common law imposes a duty of care on a person to protect another from the risk of harm if that person has created the risk. Since Burnie the common law of Australia concerning liability for permitting a fire to get out of control has been absorbed in the tort of negligence. There the High Court held, so far as land occupiers were concerned, this was a 'non-delegable duty'. "It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken." Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken." At [550] (citations omitted) To put it yet another way, defendants cannot absolve themselves of responsibility by delegating the performance of an activity with a foreseeable risk of injury to a third person: Burnie at 560. 12The NSW Court of Appeal considered Burnie recently in Bootle v Barclay [2013] NSWCA 142, a case where the Civil Liability Act applied. The court there noted: "The finding that an activity conducted on land is so dangerous as to attract a non-delegable duty of care on the part of the occupier (or the "person in control of the premises" (Burnie, at 551)) does not mean that the occupier is liable without proof of fault. A neighbour who has suffered damage as a result of the dangerous activity must still show a want of reasonable care for which the occupier can be held liable. The dangerous nature of the activity may require a reasonably prudent person to exercise a higher, perhaps much higher, degree of care (Burnie, at 554). But a plaintiff claiming damages must still prove that the occupier has breached the non-delegable duty of care". At [34](Citations omitted). 13The standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur: Wyong Shire Council v Shirt, at 47-48. 14The duty is owed to anyone whose property or person is foreseeably endangered by the fire. This could involve lighting a fire where there is a foreseeable risk of the fire spreading if proper precautionary measures are not taken or by allowing a fire to spread or get out of control without monitoring or taking other proper precautions: see Burnie, as applied in Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701, per ASJ Walmsley, at [669] and Gardner v Northern Territory of Australia [2004] NTCA 14 where Burnie and Hargrave v Goldman (1963) 110 CLR 40 were applied. See also Fleming's The Law of Torts 10th Edition, C. Sappideen & P. Vines, Lawbook Co, 2011. 15A finding of negligence against the first defendant, Craig Christopherson, could only be sustained if it could be proved that the hazardous nature of the actions taken by his father Ralph required him to adhere to a higher standard of care than would apply if he simply asked his father to 'clear some weeds'. The burden remains on the plaintiff to show that Mr Craig Christopherson has been negligent and breached his duty of care. 16If the tree stump and logs in question here were set on fire a hazard was created. It is beyond doubt that whoever lit the fire, or was responsible for its lighting, was under a duty to use reasonable care to prevent that fire causing damage to his neighbours and the countryside. Similarly, it is beyond doubt that if the fire was lit at the behest of the occupier he too was under a duty to use reasonable care to prevent it causing damage to his neighbours. The existence of those duties is based upon knowledge of the hazard and a capacity to foresee the consequences of preventing it or abating it. 17The real issue here, however, is not the content of the respective duties of each defendant but whether the plaintiff's have established that the first and or second defendant failed to discharge their duty of care. 18It is not in dispute that the second defendant did take some steps for the preservation of his own and the plaintiff's property. A secondary issue was raised that those actions were themselves in a substantial part negligent. The second defendant says they were necessary to preserve the plaintiff's property and in fact successfully saved the plaintiff's homestead. The evidence 19At the request of the plaintiffs, not opposed by the defendants, and after I considered s 53 Evidence Act 1995, a view of the western side of Tulgeywood, the road reserve and Woody's Hill, was held on Monday 18 November 2013: see MFI 1. That view has informed my assessment of the evidence. As a consequence of the view I may draw any reasonable inference from what I saw heard or otherwise noticed during the inspection of the properties at Lewis Ponds: s 54 Evidence Act. 20There is no doubt that on 29 July 2011 a fire damaged a significant portion of Woody's Hill, parts of Tulgeywood to the west and south of Woody's Hill and a small portion of The Vale to the north of Woody's Hill. Most of the damage was occasioned by fire. A tractor and a bulldozer driven by the second defendant, Ralph Christopherson, caused some of the damage in his attempts to extinguish the fire and build firebreaks. 21Neither plaintiff Morrie or Adele Wood were on their property at the time the fire started. Mrs Wood arrived home about 4.45pm to find a number of neighbours and the Rural Fire Service (RFS) on Woody's Hill and the fire under control. Mr Wood returned home at about 8:00pm. In their evidence they describe the aftermath of the fire. Of particular importance is a conversation they had with Ralph Christopherson the following morning. They say that at about 8:00 - 9:00am as they left the homestead to go to Orange they saw Ralph Christopherson and Beau Christopherson repairing the fence on their southern boundary. Both depose the conversation with Ralph went as follows: Morrie said: "I want to thank you for doing what you did yesterday. I understand you put in some fire breaks." Ralph said: "We were over the hill burning some burrs when this one got away from me. All our gear is over the hill." Morrie said: "Well, it is going to have to go through insurance now mate." Ralph responded: "Well it was bound to happen with all this long grass around." 22Mr Alexander made an attack on the veracity of alleged admission, noting the identical nature of the conversation as recorded by both plaintiffs and canvassing the possibility there was error in recall because of the circumstances in which it was heard. Mr Toomey sought to restore credit by canvassing in re-examination the circumstances in which a contemporaneous note was taken and later recorded. A prior statement of Mr Wood from 1 August 2011 was tendered as Exhibit E. It recorded Mr Ralph Christopherson as saying "These things happen ... They were over the hill when this one got away from them." 23A number of neighbours saw the fire in its early stages. Clinton Anderson gave evidence that between 12.00 pm and 1.00pm he was driving with his mother eastward on Gowan Road. He saw a pile of logs burning on Tulgeywood south of Gowan Road just to the west of the fence that runs alongside the Cobb and Co track. At that stage the fire had not spread far into the grass around the logs. 24Later when he was working on his mother's property about 2-3 kilometres to the east (see Exhibit 2 "x") he saw smoke and called 000. He telephoned or attempted to phone other nearby landholders. He then went back to the area where he had first seen the fire. The fire front had spread to the south and east but was still on Tulgeywood: see exhibit G. Soon after Beau Christopherson arrived in a white utility and together they fought the fire in the area of the Cobb and Co road. Beau told him: "Pop was just pushing up some logs and lighting them to burn off..." 25Mandy Anderson also said she saw smoke and possibly some fire at logs in the same area as that described by her son. She also saw smoke to the south east on Tulgeywood. 26Denis Luckie described seeing a fire in the same location as he drove West between 11.30am and 12.00pm: exhibit K. 27Graeme Patrick Christopherson also drove along Gowan Road at about 1.00pm that day. He was heading west. He too identified the fire as being in a pile of logs on Tulgeywood in the same position as that noted by Mandy and Clinton Anderson. His belief, based on experience as a farmer and member of the RFS, was that timber had been lit to "burn off". He saw that the fire had spread from the logs to the surrounding grass. While concerned, he did nothing as he saw a white utility to the south of the fire. He presumed the fire was being monitored and was under control. 28Graeme Christopherson saw a white utility near the fire. I accept that white utilities and trayback vehicles are ubiquitous in a country area such as Lewis Ponds but there is also evidence from Craig Christopherson that Ralph Christopherson would use a white trayback when he worked on Tulgeywood. And later Beau Christopherson drove a white utility trayback on Tulgeywood that day. 29Mr Brett Bowden from the RFS gave evidence to add to my understanding of the RFS records relating to the fire at Lewis ponds that day: exhibit L. Those records contain reasonably contemporaneous notes in relation to the reports about the containment of the fire by RFS personnel at the scene. He said there was no formal fire investigation as protocol did not warrant it given the relatively low damage and as the "likely" cause was known. That likely cause was reported as, "fire ignited by neighbour burning off windrow'd timber, escaped into open grasslands fuel and burnt into next door property..." 30Mr Shane Simpson was the RFS brigade captain first on the scene. Exhibit L indicates this was at 14:46. He spoke on the radio to Mr Bowden. He spoke to Ralph Christopherson who was near his tractor at the bottom of Woody's Hill and appeared exhausted. He spoke to Mr Anderson and later Beau Christopherson. He noticed the fire was moving up the hill to the east; he marked the fire front's position on exhibit A. When he realised there was a house there he took immediate steps to protect it. He noted the fire extended into the paddock to the west of the gate. His belief was the fire had started in the pile of logs. He did not know how the fire started but on the day he assumed that it had started at and spread from the pile of timber on the western side of the Cobb and Co road. 31Shane Christopherson lived on but no longer farmed Tulgeywood. His home was to the west of Woody's Hill. He was alerted to the fire by a telephone call from Clinton Anderson. He drove to the gate where Gowan Road meets the Cobb and Co road. He saw Clinton Anderson and Beau Christopherson fighting the fire. He too noticed the fire in logs at the site nominated by other witnesses to the west of the Cobb and Co road. It was in what he called the "dip paddock". It was an area where, years before, he had cut down a tree. The fire was at this stage still on Tulgeywood but its front was moving east toward Woody's Hill. He marked the fire front on Exhibit A. 32Craig Christopherson told me he farmed Tulgeywood, which he owned in partnership with his brother Shane and sister. His father helped him, as needed, so too did his son. He relied on his father's advice and experience in relation to management of the property. His father had free rein to help on the farm. Craig Christopherson gave evidence he asked his father Ralph to remove the weed 'Bathurst burr' from Tulgeywood: see exhibit 4. Craig Christopherson explained in evidence that given their maturity the Bathurst burr plants could not be dug out and left. Digging out alone does not remove the problem, as it does not destroy the seeds. One way of ensuring Bathurst Burr does not seed is to set it alight once dug up. 33The first defendant told me, and I accept that, he relied on his father the second defendant to remove the Bathurst Burr in a manner he thought fit. In this, as always, he relied on his father's advice and experience in relation to management of the property. I accept he was aware that, given the absence of any other reasonably available alternative, after being dug out, the weeds would be burned by his father 34In cross-examination and in answer to questions from me and in re-examination Craig Christopherson explained how he would access the area on the property where the fence repair and weed removal were to take place. He marked the three routes on exhibit 4. He explained how gates were meant to be locked. He had a set of keys at his home 'Marginal,' which is to the west of The Vale. There were also keys at The Vale, and with his brother who lived on Tulgeywood. 35Ralph Christopherson gave evidence. In essence he said he had been working alone on the south and eastern side of Tulgeywood popping up and propping fences and removing Bathurst Burr on the 29 July 2011 and the two days before. He said he was driving the white utility that belonged to Tulgeywood. He was adamant he did not use the gate near the Cobb and Co road, as he did not have a key or any keys to Tulgeywood. In any event he said he did not work in the top paddocks of Tulgeywood as he wished to avoid his son Shane with whom he had a longstanding dispute. He said he did not light any fires that day. He said he did not set the logs alight. He saw no one else on the property that day but he said in evidence but not in his affidavit that he had seen vehicles on the property over the previous two days. He said he had grubbed out burr; some of the grubbed plants he put in a dam to rot; some he had piled for burning but he did not light any fires . He told me "you never light fires till after lunch". 36He said that he set out for Tulgeywood about 11.00am. He took a slow drive along the road inspecting his property The Vale to its north. He entered Tulgeywood near its northeast by an unlocked gate off Gowan Road: exhibit 7. He propped fences and grubbed burr until about 1.30pm when he saw smoke. He thought it was coming from his house on The Vale so he went by the quickest if not easiest route across the paddocks to the Cobb and Co gate. When he got there he saw the fire to the east of the road in the road reserve but not to the west of the Cobb and Co road. He was able to exit through the gate as it was unlocked. He said in his affidavit that he was "certain that at this time the fire was only to the right of the road as I was able to safely pass through the gate": Exhibit 5 at [8]. Later he returned with his grandson Beau and the tractor and worked to make a firebreak on the north of Tulgeywood before going back to The Vale and getting a bulldozer which he drove to the top of Woody's Hill. He then used it to create fire breaks on that property's southern boundary. Later he used the bulldozer to pile up burning logs on Tulgeywood. He said in his affidavit that it was only at that time did he note the fire had spread west of the Cobb and Co road into Tulgeywood. He then moved the strainer posts away from some old tree stumps "the fire had set alight": exhibit 5 [19]. 37Also tendered, over objection, was an affidavit relating to Ralph Christopherson's health: exhibit 6. It was tendered to assist me in dealing with the plaintiff's third proposition asserting that he had failed to control and extinguish the fire when under a duty to do so. Most of the medical information did not relate to Ralph Christopherson's condition in July 2011 but it was obvious that some matters were either present or continuing at the date of the fire. In evidence Ralph Christopherson told me he was not a well man in July 2011, less well than he was now. In response, the plaintiffs tendered, over objection, a letter from Ralph Christopherson's treating doctor Dr McCrae containing an inconsistent admission; "He maintains an active lifestyle on his farm...". 38As I remarked during the hearing the evidence that he was asked to, and in fact did, spend days digging out burrs seems inconsistent with the evidence as he gave as to his state of health. While clearly he has some disabilities and is not a well man, Dr McRae's comment appears to be more accurate than that of the state of health professed to by the second defendant. He was capable of farm work and he did actively engage in it, with some restrictions due to age and infirmity. It is clear from all the evidence that he was capable and able to operate a tractor and bulldozer that day and did so, with a capacity beyond that of many men his age. He did however, entirely understandably, succumb at times to tiredness and needed to rest. 39Beau Christopherson made an important correction to his affidavit: exhibit 8. While initially he had said his grandfather had left early on the morning of the 29th he now recalled it was mid morning. He said he had only been shown the conversation attributed to him by Clinton Anderson the previous evening (19 November 2013). He accepted there had been a conversation about water and hessian bags and that he did call his grandfather "Pop". He said he did not say to Clinton Anderson, "Pop was just pushing some logs and lighting them to burn them off." He says he spent the day in the shed on The Vale until his grandfather arrived about 1.30pm and told him of the fire. He then drove the tractor to the Cobb and Co gate. His grandfather then took the tractor to fight the fire while he took the utility back to The Vale to collect the water and bags. On his return he met Mr Anderson and together they fought the fire which at that stage was in a "v" shape with the point of the "v" just to the west of the Cobb and Co fence and the arms to toward the east into the road reserve and south down both sides of the Cobb and Co road. The wind was taking the fire toward Woody's Hill, where he knew there was a house. Plaintiff's submissions 40Mr Toomey's case was, in simple form, that the evidence established 1. The fire started at the pile of logs and stump. Whoever lit the fire had a duty to take proper precautions and to ensure it did not spread. 2. Ralph entered the property by the gate near the stump as it was the closest and provided the easiest route to where he was working. 3. No-one else was on the property. A white utility was seen at the fire. Ralph was at the property driving a white utility. His work that day, despite his denials, involved lighting fires. 4. Ralph's account was not only "utterly dishonest"; it involved deliberate attempts to remove himself from the ignition point of the fire. 5. His direct admission to the Woods was compelling. The indirect conversation conveyed, via Mr Anderson, was supportive of the plaintiffs' case as was the independent evidence, including the RFS evidence. 41So far as Craig Christopherson was concerned, Mr Toomey submitted that as the owner and farmer of the land the first defendant had a duty to other land owners. When it came to the dangerous activity and the use of dangerous substances that duty was non-delegable. 42The first defendant gave his father, the second defendant, 'free rein' over Tulgeywood. The second defendant was allowed to use his general discretion; this included potentially dangerous activities and contemplated the use, by the second defendant, of fire to remove weeds. 43The first defendant had a duty to ensure that such dangerous activities were undertaken with due and proper care. He failed to do so. As this duty was non-delegable, he too was liable for the damage caused. 4444. When pressed, Mr Toomey conceded however, that general farm work was not intrinsically dangerous and that to ascribe to the first defendant a duty it must have been known or foreseeable to him that activity of the sort that led to the fire would be carried out by the second defendant. Defendant's submissions 45Mr Alexander took me to a number of passages in the joint judgment in Burnie, arguing by analogy that there was no evidence the first defendant knew the logs would be lit. Nor was there evidence he explicitly or implicitly gave his father permission or authorisation to carry out such dangerous activities on Tulgeywood. He therefore had no responsibility, special or otherwise, to see that care was taken. 46So far as the second defendant's liability was concerned he took me through the evidence to illustrate the gaps or lacuna in the plaintiff's case. He raised the possibility the fire had been lit by another. In doing so he properly drew my attention to the difficulties the defendants faced in responding to the circumstantial case posited by the plaintiffs. He cautioned against "mere mechanical comparison of probabilities independently of any belief in its reality": Briginshaw v Briginshaw (1938) CLR 336-361. He noted the difficulty of proving a negative, especially when there was no direct evidence Ralph Christopherson lit the fire: see Vetter v Lake Macquarie Council (2001) 202 CLR 439 at [454]. 47He said if Ralph was working elsewhere on the farm in the south-east corner of the 1000 acre paddock and Craig was working off farm, neither was in a position to say who may have entered the property through a gate on the Cobb and Co road and lit the fire. The presence of a white utility on a rural property was so common no conclusion could be drawn that it was the utility Ralph drove that day. Mr Alexander said the direction the utility was said to be facing by the witness Graeme Christopherson, indicated it was not being driven by the second defendant. 48As to the purported admissions he submitted the representation attributed by Clinton Anderson to Beau Christopherson about what his "Pop" had presumably told him was too remote to have probative value. Further, when I considered the different versions recorded by the Woods' of their alleged admission I would conclude both that it was unreliable and also that it was too ambiguous, in that no fire in the back paddock "got away". 49Ultimately he concluded that close analysis of the case 'theories' put forward by the plaintiffs' contained too many propositions which were sustained only by supposition not by evidence upon which I could comfortably rely. Considerations and Conclusions Where did the fire start? 50I am comfortably satisfied that the fire emanated from a pile of logs on Tulgeywood to the west of the Cobb and Co road. It then spread east and south across the Cobb and Co road into the road reserve and Woody's Hill. The evidence given by Ralph Christopherson that implies there was no fire to the west of the Cobb and Co road until it later spread there from a fire to the east must be rejected as being inconsistent with the clear evidence of the Andersons, Mr Luckie and Shane Christopherson, the evidence in relation to wind direction on the day and my own analysis of the exhibited photographs; an analysis assisted by my view. As Beau Christopherson observed, the fire was in a "v" shape as it spread across Tulgeywood towards Woody's Hill. That shape or spread of the fire can be seen in a number of photographs taken the next day from the top of Woody's Hill: for example, exhibit 5, photo 22; Exhibit B2, photo 6. There was no need for a formal RFS Fire Investigation as the source of the fire was, I accept, obvious at the time to the RFS crews who fought and contained it. While there is eyewitness account of exactly what the ignition cause or point that the RFS were correct in their beliefs as to the point the fire started accords with my own assessment of the evidence. Who lit the fire? 51There is simply no evidence Craig Christopherson or his son Beau Christopherson lit the fire. It has not been suggested Shane Christopherson set the fire. 52I am however comfortably satisfied that Ralph Christopherson lit the fire. Liability of Second Defendant? 53The evidence supporting the proposition Ralph Christopherson lit the fire is overwhelming. Much of it is circumstantial. I am thus obliged to examine the evidence to see if alternative hypotheses are reasonably available. Those hypotheses being: Beau Christopherson lit the fire without the knowledge of his grandfather; another occupier (who could only be Shane Christopherson) or a stranger to the plaintiff's lit the fire or alternatively the fire started spontaneously or spread from a fire lit on the road or road reserve. 54There is no indication from any evidence about the weather conditions that extreme heat or lightning could have started the fire spontaneously. The evidence of witnesses who saw the fire in its early stage does not support the hypothesis the fire could have started by the roadside or in the road reserve and then moved to the stump and pile of timber. I note that this can occur by something as simple as a stray cigarette thrown from a passing car. Having seen the road reserve it seems an unlikely place to stop and light a fire, something Ralph Christopherson says he saw the day before the fire. This evidence about a fire on the road reserve appears to be an invention. So too his assertion he had seen vehicles on Tulgeywood in the days preceding the fire. 55There is no evidence or even anything to suggest or indicate either Shane Christopherson or a stranger went on to Tulgeywood and lit a fire in the log pile west of the Cobb and Co road. Shane Christopherson no longer worked the property. He had no reason to move the strainer posts and set the stump and logs alight. 56There is evidence, however, that Craig Christopherson asked his father Ralph Christopherson to deal with weeds on the property. There is evidence Ralph Christopherson was on the property that morning dealing with weeds and other jobs. He was driving a white trayback. He was familiar with the area. He says he went to the east of Tulgeywood to deal with the weed, Bathurst Burr, and fencing repairs. 57He said while he intended to set fire to the piles of burr he did not do so. Yet that day Ms Anderson says she say smoke from the area where Craig Christopherson indicted there were burrs: exhibit 4. I note there was the weed blackberry growing in the stump at the site of the fire: exhibit 5 at [27]. The second defendant said he did not drive past the logs where the fire started but took the road to the east as he thought the gate was locked. I do not accept that evidence. The gate was either not locked or he had a key. He well knew this otherwise he would not have driven, as he said, he did back toward the fire with the risk he would be forced to drive through a fence. He simply had no need to use Gowan Road to get around Tulgeywood as there was a serviceable and well used road to the east across Tulgeywood to the south of Woody's Hill. 58Ralph Christopherson's story about only seeing fire to the west after he had driven to the gate cannot be accepted. Numerous witnesses said the fire was first seen to the west. Nor can I accept Ralph Christopherson's story about moving the strainer posts later in the afternoon after he had been fighting fires on Woody's Hill. The strainer posts were not badly burnt (see photos exhibit 5 - 22) while the stump and its immediate surrounds were. If the strainer posts had been moved when Ralph Christopherson said he did they would, with respect, not have been worth saving. They were valuable assets. They were moved before the fire was lit. Ralph Christopherson clearly recognized that a story had to be invented to account for why there were not burned. He had to explain why they were moved before they could be burnt. And, he invented an explanation. There was only one possible reason to invent this story: He had moved the posts prior to lighting the fire. 59Ralph Christopherson was not a witness of any credibility. I make allowance for, and do not use against him, his hearing problem and that he is apparently by nature irascible. His affidavit appeared to set up alternative hypotheses that did not withstand the scrutiny of cross-examination. He was on Tulgeywood to clear weeds. To do so he would have to set them on fire. He did so. He also set fire to the stump. That fire escaped. He did not monitor it. He left it to burn. He did not clear around it or take precautions to prevent its spread until it was far too late and the fire had spread to the east toward Woody's Hill, a property he well knew had a lot of grass, pasture and weeds which carried a high fire risk. He knew this because he had complained and warned about it. Only after the fire had spread to Woody's Hill did he then did do what he could to contain it. While some of that containment activity was fruitless and occasioned damages to fences and Woody's Hill, he was by then acting to prevent further harm. His remedial action with tractor and bulldozer was neither irresponsible nor negligent. 60There is also the evidence of his 'admission' to the Woods on the 30 July 2013 and a second hand "admission" given by his grandson Beau to Clinton Anderson. It is as Mr Alexander submits, possible the Woods misheard and later mis-recorded in a note what was said that morning. It is easy enough to mishear "digging some burrs..." as "burning some burrs..." Further, the conversation deposed to in evidence is not exactly the same as that set down by Mr Wood on 1 August 2011: exhibit E. Beau Christopherson, who was present, did not hear the alleged admission nor did he hear the conversation about burrs deposed to by his grandfather. He said he only heard part of the conversation. Those parts he remembered mirrored the Woods' version. 61Ms Anderson saw at least one and possibly two other areas of smoke on Tulgeywood at about 1.00pm other than that at the logs in the "dip paddock". Ralph Christopherson was the only person known to be on Tulgeywood at the time and was, as all parties to the conversation agree, "working over the hill". In all the circumstances it seems more likely than not the admission was made. 62The Plaintiffs also rely on what Beau Christopherson told Clinton Anderson "Pop was just pushing up some logs and lighting them to burn off..." 63Beau Christopherson however denied this conversation occurred as his grandfather who he referred to as "Pop" did not tell him he had lit the fire. 64Beau Christopherson was available to give evidence. The evidence of his representation to Clinton Anderson was admissible: s 64 Evidence Act. It was also admissible as going to the credit of the first defendant and able to be used: s 60 Evidence Act. The representation attributed to Beau does not however reveal whether Beau was implying he had direct knowledge of what his grandfather or whether he was told what his grandfather is supposed to have done or whether his grandfather admitted to him what he did. 65A second hand admission is generally inadmissible as evidence. A court can admit a representation if it is reasonably open to find that when it was made, the person who made it had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party: s 87 Evidence Act. There is no evidence that Beau had authority to make admissions or representations on behalf of his grandfather. 66Here I accept Mr Anderson's evidence. Beau had some knowledge of what his grandfather did that day. He communicated what he knew. I can and do use that evidence but do not believe it could carry the weight generally given an admission against interest by a party. 67The second defendant in setting a fire on Tulgeywood, a property he helped maintain, owed a duty of care to other land holders, as such fires carry with them a risk they will spread if proper precautions are not taken and the fire is not monitored. The risk a fire would spread here was foreseeable. The risk it would spread to Woody's Hill was foreseeable; in fact here it was highly probable the harm that did occur would have occurred if proper care were not taken. The likelihood of damage should the fire escape was well known to the second defendant. The risk was not insignificant. And, a reasonable person in the second defendant's position would have taken those precautions. There was no appreciable burden on him in taking those proper precautions. 68Accordingly, there must be a verdict against the second defendant. 69It was asserted by the plaintiff that the manner in which the second defendant, Ralph Christopherson, sought to control and extinguish the fire using his tractor and bulldozer was negligent and increased their loss. As I have found the second defendant liable for the whole of the plaintiffs' loss that liability extends to damage caused by reasonable efforts to control and extinguish the fire. On this point, however, I agree with Mr Wood's initial assessment of the situation. An assessment which caused him to thank Ralph Christopherson for his efforts: Once he returned with the tractor Ralph did what he could to control the fire by putting in firebreaks and piling up timber. His best endeavours in an emergency situation breached no duty of care. Liability of the the First Defendant? 70Not every fire lit on rural land is a dangerous activity. That said the lighting of fires on rural land generally does give rise to a duty of care. Where the activity involving fire carries with it a real and foreseeable risk of a serious conflagration if the fire is lit at all or if proper precautions are not taken or the fire is not adequately monitored and supervised, such activity is generally and notoriously so dangerous as to attract a non-delegable duty of care on the part of the occupier. That means there is a duty to take reasonable care to avoid a foreseeable risk of injury to another the duty of care is of a special and "more stringent" kind, namely, a "duty to ensure that reasonable care is taken." That duty, "will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor:" Burnie at 550, 551 & 560. 71This does not mean, however, that the occupier is liable without proof of fault. A neighbour who has suffered damage, as a result of the dangerous activity must still show a want of reasonable cares for which the occupier can be held liable. The dangerous nature of the activity may require a reasonably prudent person to exercise a higher, perhaps much higher, degree of care. But, a plaintiff claiming damages must still prove that the occupier has breached the non-delegable duty of care: Bootle at [34]. 72The first defendant, although obviously nervous, tried his best to give truthful and accurate evidence. In relation to issues such as gates, keys and access to Tulgeywood, his evidence must be preferred to that of his father the second defendant. He was not on the farm that day. He said asked his father some time before to check fences and remove weeds on Tulgeywood. These are inherently dangerous activities. Much will depend on the methods used. 73The first defendant said there were two ways of destroying grubbed up Bathurst Burr so as to prevent the spread of seeds, either put it in a dam to rot, or, pile it and burn it. He said he had no knowledge of any other fire being lit or possibly to be lit on Tulgeywood. He said, and I accept, he had no discussions with his father about burning the stump or logs near the Cobb and Co road. He and his father both worked each other's farms to their mutual advantage. He relied on his father's many decades of skill and experience and deferred to him. There is no evidence however that general acquiescence extended to the lighting of the fire that led to the damage here. I do not believe that acquiescence can be implied. 74Craig Christopherson in allocating tasks to his father or relying on his father to help farm Tulgeywood had a duty to his neighbours to exercise the care expected of a reasonably prudent person. The stringency with which that duty will be assessed depends on the task he expected to be performed. He is not, as I understand the authorities, strictly liable for any negligent act performed by a person tasked to work his land. Rather, if he has, or does, anything on his lands likely to do mischief if it escapes he would be prima facie answerable for all the damage, which is the natural consequence of its escape: Fletcher v. Rylands (1866) LR 1 Ex at 279-280. 75It is obvious that if the first defendant was aware of, or acquiesced to, the burning of logs or stumps on his property that work was so obviously risky that he had a non-delegable duty of care to ensure that adequate precautions were taken to ensure it was safe to do so and that the fire did not spread. 76There is no evidence the first defendant knew of or acquiesced to the lighting of the fire in the pile of logs and stump to the west of the Cobb and Co road. There is no evidence that the second defendant could have foresee that his father would set the stump alight. There was no Bathurst Burr in the dip paddock. The only evidence of weeds in the paddock is that there was a medium sized blackberry bush growing in it: exhibit [14] and exhibit 5 at [27]. 77I must next ask is there evidence to support a proposition that the overall work which he allowed his father to do on Tulgeywood was dangerous activity that carried with it a foreseeable risk of serious harm such as to give rise to a non-delegable duty. There is no evidence to support that proposition. I do not accept that general farm work caries that risk. Specific farm work might carry such a risk but the only specific farm work that the first defendant could reasonably foresee would be carried out was fencing and Bathurst Burr weed removal and destruction. That task he knew involved the lighting of fires to burn grubbed weeds. As expected by the first defendant the second defendant carried out that job without negligence. 78If a task independent of that requested by the first defendant was carried out without his knowledge or acquiescence can he be liable? Can it be said that by effectively delegating and deferring to his father in the management of Tulgeywood he acquiesced to his father's undertaking what Mr Ralph Christopherson described to me as "development work" that by implication involved the possible burning of logs? In my view his duty did not extend so far. 79I do not believe or accept, in the circumstances here, that liability for everything done by the second defendant can be extended to the first in the absence of proof the first defendant engaged the second to do the dangerous work that led to the damage. The non-delegable duty only exists where the work to be done has a real and foreseeable risk and where that risk eventuates. 80If the fire had spread from a negligently lit or managed pile of weeds the situation would be different. In the absence of any evidence the first defendant knew his father would light a fire in the stump and logs to the west of the Cobb and Co road the first defendant cannot be liable. There is no evidence to suggest the first defendant breached any duty in his instructions to his father or even knew, or could have reasonably foreseen, his father intended to light the fire. To succeed against the first defendant the plaintiffs must prove fault, here some want of reasonable care, they have not done so. Quantum: 81The parties agreed on the amount of damages, should I find either or both Defendant's liable, in the sum of $ 25,000. Orders (1)Verdict and judgment for the Plaintiffs against the Second Defendant in the sum of $25,000; (2)Verdict for the First Defendant. (3)The exhibits may be returned after 28 days. (4) If costs cannot be agreed the parties have liberty to apply on 7 days notice to the Court within 21 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2013