Negligence to cost council $875,000

A judge has found that Gisborne District Council acted negligently by failing to address a fire hazard on a block of its land, and that it should pay a business more than $875,000 for damage caused by the massive fire seven years ago.

The ruling concerns Double J Smallwoods Ltd, a sawmilling and manufacturing business on Awapuni Rd, Gisborne, owned by Jon and Margaret Gardner.

The property was bordered by overgrown land owned by the council. On January 7, 2010, a fire began on the council land and sparked a massive blaze. Windblown embers blew onto the Gardner’s property and caused widespread damage, including the loss of a large storage shed, plant and stock and partial loss of a mill building.

The Gardners took the council to court, suing it for negligence, nuisance and strict liability. They said the council had allowed pampas grass, scrub and weed to grow on its land and this posed a fire hazard.

The council claimed the vegetation was a reasonable and natural use of council land, that the fire was started accidentally or deliberately by someone else, and that it had started on land owned by KiwiRail.

The matter was heard in High Court at Gisborne in April. Last week Justice Susan Thomas ruled that the council had acted negligently, but that the Gardners and their business were also partly to blame.

Justice Thomas found that the fire started in pampas grass on council land where it bordered with the neighbouring rail corridor land owned by KiwiRail.

The fire was deliberately lit, with evidence suggesting it may have been started by ‘‘children smoking dope under the cover of [the pampas grass]’’.

Justice Thomas found that the pampas grass and other vegetation on the council land contributed to the fire’s spread, and had the council cleared or maintained the growth, the fire would not have spread as fast.

She said the council was clearly aware of the fire risk posed by the dried vegetation as it had in 2001 written to KiwiRail about similar vegetation on its land and told KiwiRail ‘‘this type of overgrowth is dangerous, particularly when next to a timber yard’’.

The council’s negligence was a cause of the Gardners’ loss and the damage was ‘‘clearly a foreseeable consequence of the council’s negligence’’.

The Gardners and their business were under-insured and their cover did not cover the losses.

While the council was liable for the loss, Justice Thomas found that the Gardners and their business should have done more to protect their timber yard from the risk of spreading fire.

The Gardners and their business had sought damage for losses of $1.6 million. Justice Thomas awarded them half that amount, due to their own negligence, then added half the cost of a new fence they had erected to prevent future fires, bringing the awarded sum to $875,254.68.

Parties have been asked to agree to costs or file memorandum with the court with 28 days.

The Gardners would not comment.

The council has been contacted for a reaction.