Author: Milton Latta
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.
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1 [2021] NSWCA 54.
2 Woodhouse v Fitzgerald [2020] NSWSC 450.
