› Bushfire — escape of fire from rural property — smouldering vegetation heap
Appeal and new trial
› Appeal — general principles
› Interference with findings of fact — glaringly improbable — incontrovertible facts
Evidence
› Expert evidence
› Fire investigation — fire spread rate models — weight and reliability
Quick Take
1A trial judge does not reverse the onus of proof by addressing and rejecting a defendant's alternative causal theory before setting out reasons for accepting the plaintiff's theory, provided the reasons as a whole demonstrate an iterative assessment of all the evidence and an actual sense of persuasion that the plaintiff's case is established on the balance of probabilities rather than merely being the more likely of two hypotheses.
2A scientific fire spread rate model (here, the [name withheld], [name withheld] & [name withheld] backing fire spread rate) is not an 'incontrovertible fact' capable of overturning a trial judge's factual findings where its application depends on contested inputs and assumptions, and where the trial judge gave detailed reasons for concluding it did not preclude the finding made on all the evidence.
3Where a trial judge's causation findings rest on a combination of primary findings affected by impressions of witness credibility and reliability formed during a lengthy trial, appellate restraint applies and the findings will not be disturbed unless shown to be glaringly improbable or contrary to compelling inferences ([name withheld] v Australian National Railways Commission applied).
