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Slash and Burn - A Duty of How Much Care? By Danielle Wallis | April 2008 Area of Expertise | General Insurance

Summary The Supreme Court of Queensland recently reviewed the content of the duty of care owed in the context of a fire which spread from one farm to an adjoining one and resulted in devastation of the neighbouring mango farm’s crop. Particular attention was paid to the role to be played by the so-called “Shirt Calculus” Calculus”,, propounded by Mason J in Wyong Shire Council v Shirt Shirt, and which has long been held to be one of the bed-rocks of the law of negligence in Australia.

Who Does This Impact? Liability insurers, landowners and their insurers

What Action Should Be Taken? Insurers must be careful not to assume that because a duty of care exists and a loss causing event has occured that a party’s liability will necessarily follow without more. Landowners are still only required to take precautions that are reasonable in the circumstances at the time and not with the benefit of hindsight.

Facts A fire was started by a “slasher” machine on the defendant’s property and spread to the plaintiff’s neighbouring mango farm. It appears the seat of the fire was the slasher’s power take off shaft, although expert evidence was not called on this point. The prevailing conditions on the relevant date were hot, dry and windy, with a temperature of 30 degrees Celsius. Grass and vegetation were described as dry and the defendant did not have any fire extinguishers on or near the tractor or slasher. In their statement of claim, the plaintiffs sought to set out the duty owed by particularising a range of specific responses and reactions which in hindsight the plaintiffs contended would or could have countered the ignition or spread of the fire. These included various directions to be given to employees /agents about how and when to slash, as well as requiring the defendant to undertake a risk assessment and maintain a fire management plan. It was obvious from the pleadings that the defendant had the Shirt calculus in mind when the pleadings were drafted, with obvious parallels in the language employed and obligations asserted.

Duty of Care At hearing, issue was taken as to whether this formulation of the duty of care in specific terms was an erroneous application of the “Shirt Calculus” Calculus”: “the tribunal of fact must ask itself whether a reasonable man in the defendant’s position would have foreseen that this conduct involved a risk of injury to the plaintiff or a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal fact to determine what a reasonable man would do by way of response to the risk and the degree of probability of its occurrence, along with the expense of, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

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Slash and Burn - A Duty of How Much Care? by Danielle Wallis

…the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and the degree of probability remain to be considered with other relevant factors.” Mason J (1979-1980) 146 CLR 40 at 47-48. The Court noted that the “Shirt calculus” is not an identification of the duty of care owed by one party to another, but rather, considered it “provides guidance to the tribunal of fact to assist in determining whether a defendant’s conduct attained and observed the standard of care necessary to fulfil observance of the duty of care”. This is consistent with a number of current decisions from the High Court, which has long identified a danger in formulating a duty of care in specific terms. In particular the High Court has warned against the application of the “Shirt calculus”, “wearing the glasses of hindsight”, noting that the true assessment of the applicable duty of care owed must look forward to what would reasonably have been done, not back to consider whether what was done was reasonable.

Outcome Ultimately the Court considered that the duty of care that was owed by the defendant to the plaintiffs was a duty to take reasonable care to prevent damage to the plaintiff’s property as a result of fire. This formulation covered the prevention of fires as well as controlling the escape for fires from the defendant’s property. Accordingly, the questions for determination before the Court were: 1. Did the ignition of the fire on the slasher result from the defendant’s negligence? and 2. Did the spread of the fire (however caused) into the plaintiff’s property result form the defendant’s negligence? Based on the evidence called, the Court was persuaded that a reasonable member of the farming community in the position of the defendant would not have foreseen the risk of the slasher igniting. Further, in light of evidence that given the prevailing conditions, the fire was anticipated to have been out of control by the time the fire brigade attended, irrespective of whether the slasher was moved by the defendant, or left in the field, the Court did not consider the plaintiff had established that the spread of fire into the plaintiff’s property resulted from the defendant’s negligence.

Comment This case is a salient reminder that hindsight is not relevant to whether a duty of care exists or has been breached. Examining the cause of an accident that has happened cannot be equated with that examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into whether there has been any breach, although made after the incident, must attempt to identify what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk.

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Slash and Burn - A Duty of How Much Care? by Danielle Wallis

The formulation of the duty owed therefore can not be reduced to a simple checklist. The “Shirt calculus” calculus”, while not definitive on the content of any duty owed, can be referred to as a guide in assessing whether there has been a breach of any such duty. It is likely that most landowners would have a duty of care to prevent bringing about a situation where a fire would spread to and damage a neighbour’s property. However the existence of a duty and the happening of a loss causing event does not necessarily mean that the duty has been breached.

For more information, please contact: Danielle Wallis Lawyer T: 02 8257 5729 danielle.wallis@turkslegal.com.au

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Slash and Burn - A Duty of How Much Care?