Judgment date: 17 April 2019
Citation: Weber v Greater Hume Shire Council  NSWCA 74
Jurisdiction: Supreme Court of New South Wales – Court of Appeal
On 17 December 2009, a fire ignited at the tip and quickly spread to the town of Gerogery which was located 11km south of the tip. The fire destroyed a number of homes including a property owned by Susan Weber.
On 15 December 2015, Weber commenced representative proceedings against the Council in negligence and in nuisance for damages suffered by her and other property owners as a result of the fire.
On 14 May 2018, the Supreme Court of NSW dismissed the proceedings brought by Weber. While it was held that the Council owed a duty of care to those property owners and the duty was breached by Council’s failure to take reasonable precautions to prevent the outbreak of a fire, the trial judge found that Weber had not established causation as she could not establish the cause of the fire or that reasonable precautions would have prevented the escape of the fire.
The Court found that the Council owed a duty of care to Weber to take reasonable steps to prevent unintended fires at the tip and to prevent the spread of fire from the tip. The Court also accepted the findings that the Council should have taken the following reasonable precautions to prevent the fire and its spread by:
In relation to the issue of causation, the Court considered the six probable causes of the fire identified by the experts at trial – dry lightning, spontaneous combustion, residual burn, deliberate ignition, batteries and glass.
The Court categorised these causes into those that could have eventuated from the negligence of the Council and those which could not.
The Court found that the correct question to ask in relation to causation was:
Whether on the balance of probabilities the fire would have been contained within the boundaries of the tip had the Council taken the precautions required in the exercise of reasonable care1The Court accepted that had the relevant precautions been taken by Council, on the balance of probabilities, the fire at the tip would not have spread and damaged Weber’s property.