New Zealand Fire Service Commission v Legg
| Jurisdiction | New Zealand |
| Judge | Nation J |
| Judgment Date | 01 July 2016 |
| Neutral Citation | [2016] NZHC 1492 |
| Docket Number | CIV-2014-409-000681 |
| Court | High Court |
| Date | 01 July 2016 |
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[2016] NZHC 1492
CIV-2014-409-000681
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
Claim under s43 Forest and Rural Fires Act 1977 for $217,118 being the costs of fighting a fire which originated from a burn heap on a lifestyle property belonging to the first defendants which spread to neighbouring properties, causing significant property damage — the fire had been started on 16th December to burn vegetation and other material from the lifestyle block as well as vegetation from the second defendant which was a landscaping business owned by the first defendants — the out of control fire on 10th January resulted from hot embers remaining — the first plaintiffs and second plaintiffs were insured by the first third party and second third party — the insurers maintained that the first defendants had lit a separate fire on the 10th January — the first third party claimed an exclusion clause applied because the defendants had burnt waste from their business — whether the insurers had an obligation to indemnify the first and second plaintiffs on the claims — whether the exclusion clause applied against the first defendants.
G K Rippingale & R M Dixon for the Plaintiffs
A Riches & J Taylor for the First & Second Defendants
I Thain & V Cress for the First Third Party
J Parker & J Herd for the Second Third Party
JUDGMENT OF Nation J
On 10 January 2013, there was a serious fire in the Selwyn District in Canterbury. The fire originated from a burn heap on a lifestyle property belonging to Mr and Mrs Legg (the Leggs). It spread to neighbouring properties where it causedsignificant property damage. The claim I deal with is to recover the costs of fighting the fire. My judgment will, however, have implications for other claims which are the subject of different proceedings.
The claim for the costs of fighting the fire is made by the New Zealand Fire Service Commission and the Selwyn District Council under the Forest and Rural Fires Act 1977. After all evidence had been taken, their claims were admitted by both the Leggs and Evolving Landscapes Limited (Evolving Landscapes), the landscaping business run by the first defendants.
The Leggs' property was insured with AMI Insurance Limited (AMI). Evolving Landscapes was insured with Lumley General Insurance (NZ) Limited (Lumley).
The fire heap on the Leggs' property had been used to burn vegetation and other material from their lifestyle block but also vegetation, including some tree stumps from the Evolving Landscapes business. The major issue before me is whether or not, in terms of their particular policies, AMI and Lumley have any obligation to indemnify the Leggs and Evolving Landscapes on the claims that have been made against them.
On a lifestyle block in the country, it is common to dispose of green waste or other rubbish using a fire. The Leggs had a burn heap on their property for that purpose. It was about 1.5 kilometres from their home at the north-western end of their property. On the burn heap was some paper and other rubbish from their household including paper from the office and their home. That office was also the office for Evolving Landscapes. There was also vegetation from their lifestyle block. This included the stumps of some olive trees that had been on the property. They also had a large planted area around their home which would have generated significant waste. The majority of the material was green waste or slash from the Evolving Landscapes business. 1 This was not all of the green waste generated by
that business. On occasions, Mr Legg took green waste from the business to EcoDrop refuse stations. The heap also included probably three pine stumps which had been brought to the burn heap from another property in the Selwyn area in connection with some work Evolving Landscapes was doing on that propertyBy 16 December 2012, the heap was of a size where Mr Legg decided it was necessary to set it alight. The land involved was also going to be taken over by a neighbouring property, a quarry. Mr Legg was conscious that, as summer continued, it was likely that there would soon be fire restrictions.
On 16 December 2012, Mr Legg was engaged with his landscaping work with Evolving Landscapes. The fire was set alight in the morning by Mrs Legg and their son, Matthew. Matthew was aged about 22 and living away from home at the time. Mr and Mrs Legg had then been living on their lifestyle block for some 20 years. Both Mr and Mrs Legg came from a farming background. Both had experience of lighting such fires and knew the dangers and risks involved.
Mrs Legg and Matthew minded the fire initially and kept an eye on it during the day. Matthew Legg left the area around 5.00 pm. By that time, the heap had substantially burnt down to a pile of ash. Photographs taken on the day of the fire, 10 January 2013, showed the remains of a stump sitting on top of the heap of ash. Matthew Legg could not recall that stump being there when he left but, on all the evidence, I consider it probably was in that position. On the other side were the remains of some light branches and some thicker branches, perhaps up to 20 centimetres thick. Amongst the branches and under them was what appeared to be household rubbish.
Late in the afternoon of 16 December 2012, Mr Legg came to the property. He borrowed a neighbour's tractor to push material from the periphery onto the heap. He says he did this to burn as much material as he could and also to help clear the area around the fire to ensure there was an area of bare ground between the heap and any surrounding vegetation.
The neighbour from whom he borrowed the tractor was someone who had farmed in the area. There was no evidence that this farmer had been concerned at a fire being lit at that time.
Mr Legg used the tractor in this way on the evening the fire was lit and over the days immediately after 16 December. His evidence as to when he last did this was not entirely clear. I am satisfied that he ceased doing this at the latest five days after 16 December, i.e. by 22 December. Mr Legg said that when he used the tractor on this occasion, the tractor was fitted with a blade with tines which meant it could not be scraped over the ground in a way that left the ground completely clear. Some rubbish and branches may have fallen between the tines and remained on the ground.
One of the allegations made by both AMI and Lumley was that the Leggs had failed to take adequate care in putting new vegetation on the heap between the time of the initial fire on 16 December 2012 and the major fire of 10 January 2013.
In their evidence as briefed, both Mr and Mrs Legg said that neither of them had put any fresh vegetation on the heap over that period. Under cross-examination, Mr Legg initially said he would not have done so because, with the impending transfer of this land to the quarry, he had intended to start a new heap nearer the house. When it was suggested to him that he had not started this new heap until sometime in January 2013, he made certain statements which could have suggested he might have put vegetation generated through Evolving Landscapes' business on the heap after 16 December.
I am satisfied that no new green waste was put on this heap after 16 December 2012. Some branch material had remained on the heap after the fire. The fire investigator, Mr King, said that it did not appear to have been burnt in the major fire of 10 January 2013. The strong nor-western winds which caused the heap to re-ignite were blowing strongly away from where the remaining branches were situated. The strength of the wind was such that, as is apparent from the photographs, some plastic and paper on the upwind side of the heap had not been burnt. It was Mrs Legg's evidence that the new heap had not been started probably until mid-January. She did not think it had been started at the time of the major fireon 10 January 2013. She considered it unlikely that any vegetation would have been generated from the business and brought to the heap over the intervening period. She said that, with the Christmas break, their landscaping work was suspended and they took a break from similar work around their own property.
The branches, plastic and other minor bits of paper rubbish that remained on the heap after the fire of 10 January 2013 were probably near the heap when it was set alight on 16 December 2012. Either on the evening after the fire was lit or the days immediately afterwards, it is likely that these branches and the accompanying rubbish were pushed up or thrown onto the heap by someone who was tidying up the area after the fire.
I am satisfied that such material that was pushed onto the heap was either burnt or, as the fire cooled, simply remained on the heap unburnt. If this did not happen on 16 December 2012 or on the days immediately afterwards when Mr Legg was visiting the heap, then I am satisfied that the material was put on the heap when, to all appearances, the fire was out and there was no longer any heat in the heap that would have caused these branches to burn. I am satisfied of this because those branches were still there on 10 January 2013.
There were no fire restrictions in place on 16 December 2012. Mr Legg said he had considered the weather forecasts. He said it was appropriate to set the fire alight at that time because the forecast was for rain. There was no suggestion that there would be strong winds. Prior to lighting the fire, as a precaution against it...
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...This is confirmed by the expert evidence of Mr Joseph and the Marleys Hill fire investigation report. 138 The decision in New Zealand Fire Service Commission v Legg supports this conclusion. 41 In that case this Court upheld a claim under s 43 of the FRF Act in circumstances where the actio......