Deceased
Stanley Hayhurst
Demographics
84y, male
Coroner
Deputy State Coroner Iain West
Date of death
2013-01-18
Finding date
2019-01-11
Cause of death
effects of fire
AI-generated summary
Stanley Hayhurst, an 84-year-old man who was hearing and vision impaired, died from the effects of fire while attempting to escape the Aberfeldy bushfire that engulfed his property in Seaton, Victoria, on 18 January 2013. The fire originated from papers ignited on a fire mound at a neighbouring property at approximately 10:00 am on 17 January 2013. Despite the fire being extinguished and monitoring by the property owners, it broke out again and spread rapidly across the road due to steep terrain and vegetation causing erratic spotting and severe fire behaviour. The fire was not predicted by standard modelling and spread faster than anticipated. At 5:00 am on 18 January 2013, the fire reached Hayhurst's property; his body was found in a vehicle. This was not a preventable death in the clinical sense, as this case concerns bushfire fatality rather than a medical error or treatment failure.
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IN THE CORONERS COURT Court Reference: COR 2013 0294
OF VICTORIA AT MELBOURNE FINDING INTO DEATH AND FIRE WITH INQUEST Form 37 Rule 60(1) Form 39 Rule 61(1) Sections 67 and 68 of the Coroners Act 2008 Findings of: IAIN TRELOAR WEST, ACTING STATE
CORONER Deceased: STANLEY HAYHURST, born 24 August 1928 Fire: ABERFELDY BUSHFIRE, 17 January 2013 – 27 June 2013 Delivered on: 11 January 2019 Delivered at: Coroners Court of Victoria, 65 Kavanagh Street, Southbank Hearing date: 3 and 4 September 2018 Counsel assisting the Coroner: Leading Senior Constable Treverton Representation: Fiona Ellis and Jessica Clark, for the Code family
Justin Brereton, for Emergency Management Victoria and the Departments of Environment, Land, Water and Planning and Sustainability and Environment Catchwords: Bushfire, effects of fire, erratic spread and severe fire behaviour, spot fires, unchallenged expert opinion, balance of probabilities, weight of established facts.
TABLE OF CONTENTS Background 1 The purpose of a coronial investigation 2 Matters in relation to which a finding must, if possible, be made 4 Identity of the deceased, pursuant to section 67(1)(a) of the Act 4 Medical cause of death, pursuant to section 67(1)(b) of the Act 4 Circumstances in which the death occurred, pursuant to section 67(1)(c) of the 5 Act Cause and origin of the fire, pursuant to section 68(a) of the Act 5 Circumstances in which the fire occurred, pursuant to section 68(b) of the Act 6 Comments pursuant to Section 67(3) of the Act 7 Findings and conclusion
Mr Stanley Hayhurst (Mr Hayhurst) lived at 153 Johnson Lane, Seaton. He was 84 years old when he died from the effects of fire while attempting to flee the bushfire which engulfed his property in the early hours of Friday, 18 January 2013. Mr Hayhurst was hearing and vision impaired.
Mr Hayhurst was described by his family as a beloved and doting grandfather who had just spent Christmas with his family before returning to his bush retreat at Seaton.
Victoria experienced a significant fire season in the 2012/2013 fire danger period, in part due to above average temperatures, dry fuel loads and increased potential for fire activity. The assessment of the Victorian fire season changed in January 2013, from ‘above average’ to ‘high,’ with heatwave-type, very dry conditions.
The forecast fire danger from 16 January 2013 to 21 January 2013 for the West Gippsland region, where Aberfeldy and Seaton are located, was ‘very high.’ Total fire bans were declared in all of parts of Victoria on 16 days between 1 December 2012 and 31 March 2013. On 17 January 2013, there was a Total Fire Ban in place for all parts of Victoria, except for Gippsland.
At 11.38am on 17 January 2013, Grahame Code (Mr Code) telephoned Mr John Wood, Fire Management Officer at the Department of Sustainability and Environment (DSE), to report the Aberfeldy bushfire in the Baw Baw fire district, Gippsland (the Aberfeldy bushfire). The Aberfeldy bushfire spread rapidly from the bushland area directly across the road from the property owned by Mr Code and his wife, Lynda Code (Mrs Code), at 270 Donnelly’s Road (the Code property), approximately four kilometres south-east of Aberfeldy township, and quickly began to spot.
In the first 16 hours, the Aberfeldy bushfire escalated and spread rapidly in a south-easterly direction. The Aberfeldy bushfire impacted on the communities of Seaton, Dawson, Glenmaggie and Coongulla. It destroyed 22 houses and, in the early hours of the morning of 18 January 2013, took the life of Mr Hayhurst.
The Aberfeldy bushfire eventually burnt 87,000 hectares over several weeks. It was contained on 28 February 2013, declared ‘under control’ on 14 March 2013 and ‘safe’ on 27 June 2013.
Mr Hayhurst’s death constituted a ‘reportable death’ under the Coroners Act 2008 (Vic) (the Act), as the death occurred in Victoria and was unexpected and not from natural causes.1
On 31 July 2014, Detective Sergeant Paul Tierney of the Arson and Explosives Squad made an application for an inquest to be held into the Aberfeldy bushfire, pursuant to section 53(2) of the Act. Although the Court did not receive an application pursuant to either sections 30 or 31 of the Act, to investigate the Aberfeldy bushfire:
(a) I accept that the basis for the application for an inquest into the Aberfeldy bushfire is the same as the basis for which an application to investigate the cause and origin of a fire and circumstances in which the fire occurred would be made in this case; and
(b) I therefore dispense with the requirements of Rule 39, that a request to investigate a fire must be in Form 16 and consider the application for inquest pursuant to section 53(2) to also be an application by a person to investigate the Aberfeldy bushfire.
(a) reportable deaths to ascertain, if possible, the identity of the deceased person, the cause of death and the circumstances in which death occurred;3 and
(b) certain fires to ascertain, if possible, the cause and origin of the fire and the circumstances in which the fire occurred.4
It is not the role of the coroner to lay or apportion blame, but to establish the facts.5 It is not the coroner’s role to determine criminal or civil liability arising from the death under investigation,6 or to determine disciplinary matters.
The expression “cause of death” refers to the medical cause of death, incorporating where possible, the mode or mechanism of death.
1 Section 4 Coroners Act 2008 2 Section 89(4) Coroners Act 2008 3 See Preamble and s 67, Coroners Act 2008 4 See Division 2 and s 68, Coroners Act 2008 5 Keown v Khan (1999) 1 VR 69 6 Section 69 (1)
For coronial purposes, the phrase “circumstances in which death occurred,”7 refers to the context or background and surrounding circumstances of the death. Rather than being a consideration of all circumstances which might form part of a narrative culminating in the death, it is confined to those circumstances which are sufficiently proximate and causally relevant to the death.
The broader purpose of coronial investigations is to contribute to a reduction in the number of preventable deaths and fires, both through the observations made in the investigation findings and by the making of recommendations by coroners. This is generally referred to as the Court’s “prevention” role.
(a) to report to the Attorney-General on a death or fire;8
(b) to comment on any matter connected with the death or fire they have investigated, including matters of public health or safety and the administration of justice;9 and
(c) to make recommendations to any Minister or public statutory authority on any matter connected with the death or fire, including public health or safety or the administration of justice.10 These powers are the vehicles by which the prevention role may be advanced.
All coronial findings must be made based on proof of relevant facts on the balance of probabilities.11 In determining these matters, I am guided by the principles enunciated in Briginshaw v Briginshaw.12 The effect of this and similar authorities is that coroners should not make adverse findings against, or comments about individuals, unless the evidence provides a comfortable level of satisfaction that they caused or contributed to the death or fire.
In conducting this investigation, I have made a thorough forensic examination of the evidence including reading and considering the witness statements and other documents in the coronial brief.
7 Section 67(1)(c) 8 Section 72(1) 9 Section 67(3) 10 Section 72(2) 11 Re State Coroner; ex parte Minister for Health (2009) 261 ALR 152
MATTERS IN RELATION TO WHICH A FINDING MUST, IF POSSIBLE, BE MADE Identity of the Deceased pursuant to section 67(1)(a) of the Act
On 23 January 2013, Andrew Schlenker, a Molecular Biology Scientist at the Victorian Institute of Forensic Medicine produced a report which concluded that the DNA of the deceased person was that of a parent of Mr Hayhurst’s daughter, Jennifer Favaro, to a 99.99 per cent degree of probability.
On 23 January 2013, based on both Mr Schlenker’s report giving a high probability of identity and the circumstantial evidence, I determined that the identity of the deceased was Stanley Hayhurst, born 24 August 1928.
Identity is not in dispute in this matter and requires no further investigation.
Medical cause of death pursuant to section 67(1)(b) of the Act
Assoc. Prof. Ranson provided a written report, dated 5 February 2013, which concluded that Mr Hayhurst died from the effects of fire.
(a) he was unable to unequivocally conclude that no ante mortem injuries occurred or that no natural disease was present;
(b) the majority of changes noted in the body can be explained by heat effects;
(c) it was not possible to determine whether Mr Hayhurst died prior to, or during the course of, the fire;
(d) a section of the internal region around the lung hilum showed soot-laden mucus covering the bronchial mucosa. Similar soot-laden mucus was present in deeper lung airways (bronchi). These features indicate that Mr Hayhurst was breathing in at least the early stages of the local fire; and
(e) it was not possible to identify a single unequivocal mechanism of death in this case.
Circumstances in which the death occurred pursuant to section 67(1)(c) of the Act
At approximately 2.45am, Mr Hayhurst’s neighbours noticed that the Aberfeldy bushfire was approaching Seaton. Shortly thereafter, spot fires were observed in and around Seaton.
At approximately 5.00am, Mr Hayhurst’s house and property were observed to be on fire.
At 5.30pm on Friday, 18 January 2013, police officers attended the Hayhurst property. The Hayhurst property had been destroyed in the Aberfeldy bushfire, which razed the house and sheds on the property.
Following a search of the property, Mr Hayhurst’s body was discovered in one of his two vehicles on the property. Mr Hayhurst’s vehicle was burnt out and Mr Hayhurst’s remains were found in the driver’s seat of the vehicle.
Cause and origin of the fire, pursuant to section 68(a) of the Act
Between 22 and 24 January 2013, Mr Les Vearing (Mr Vearing), a Level 3 incident controller for DSE, accompanied by other fire investigators from various agencies, attended in and around the Code property, as part of their investigation into the cause and origin of the Aberfeldy bushfire.
On 8 and 9 February 2013, Mr Vearing and other fire investigators visited the Hayhurst property at Seaton, to determine whether the fire that commenced on the Code property was the same as the Aberfeldy bushfire, which burnt through the region and spread to the Hayhurst property.
Using Line Scan maps and a range of indicators on the ground, including fire intensity, burn and char patterns on trees, ash deposits on shrubs and trees, leaf freeze and protected fuel, Mr Vearing determined that the fire that burnt through to the Hayhurst property by approximately 4.00am on 18 January 2013, was the same fire which Mr Code and his son had ignited on the fire mound at the Code property on 17 January 2013. Mr Vearing determined that the burn and char patterns he examined at and around the Code property showed that:
(a) the fire broke out from the fire mound by spreading through grass adjacent to a track on the Code property, which was referred to in evidence as ‘the caravan track;’13
(b) after the initial break-out from the fire mound, the fire burnt through grass for a short distance along the caravan track where it reached a stand of trees;
(c) close to this stand of trees, leaf litter and debris on the caravan track acted like a fuse or a wick and carried the fire across the caravan track;
(d) once it was carried across the caravan track, the fire burnt onto the steep slope that is located on the opposite side of the track to the fire mound;
(e) once it reached the steep slope:
(i) the gradient caused the fire to move quickly (at about 60 kilometres per hour) up the slope toward Donnelly’s Creek Road; and (ii) the vegetation on the slope caused the fire to spot over Donnelly’s Creek Road and into the adjacent forest in at least three separate locations between the Code’s ‘battery shed’ and the fire mound; and
(f) once it had reached the forest, the fire that had spread from the fire mound continued to be affected by a combination of the steep terrain, vegetation and weather conditions such that it produced erratic spotting and severe fire behaviour. This combination caused the fire to advance in multiple directions at the same time.
Circumstances in which the fire occurred, pursuant to section 68(b) of the Act
The Code property is bordered by Crown land, including a State forest over the boundary fence 13 Oral evidence of Mr Vearing, Transcript of inquest into the death of Stanley Hayhurst, pp113-114.
near the fire mound. The State forest is managed by the DSE. The property and the fire mound are in a ‘fire protected area’ as defined by the Forests Act 1958 (Vic).
Mr Code and his son allowed the papers to burn until the fire had “virtually gone down”14 and “there were no visible flames.”15 After hosing the area surrounding the fire mound, Mr Code and his son went back inside the house, thereafter checking the fire mound at approximately 30-minute intervals to ensure that it had not ‘re-ignited.’
At approximately 11.15am, when Mr Code’s son was checking the fire mound, he saw smoke and fire approximately 15-20 metres from the fire mound, over the Code property’s boundary, on the hill toward Donnelly’s Creek Road. He went inside and told his parents. Mr and Mrs Code and their son immediately went outside and began attempting to fight the fire.
At 11.38am, Mr Code telephoned Mr John Wood, Fire Management Officer at DSE, reporting that a fire had escaped from his property.
At approximately 11.40-11.42am, Lynda Code (Mrs Code) reportedly saw a large column of smoke approximately one kilometre away, on the hill to the south/south-east of their property, between the Code property and the New Dawn Mine, in an area which the Codes call “Cheops” (Cheops).
The Department of Environment, Water, Land and Planning (DEWLP) and Emergency Management Victoria (EMV) described the Aberfeldy bushfire as “out of the ordinary.” The spread of the fire was different from that predicted by the usual fire prediction modelling software. The fire moved significantly faster overnight on 17-18 January 2013 than was predicted by modelling. The Aberfeldy bushfire has been subject to independent academic study, both in Australia and abroad. Despite this, DELWP conceded that it is not aware of any consensus amongst experts as to why the Aberfeldy bushfire spread at the rate it did.
15 ROI with Mr Code on 19 January 2013, answer to Question 51.
fire protected area without authority16 and, on 21 March 2014, was found guilty and fined $2500.
On 3 and 4 September 2018, I held an inquest into Mr Hayhurst’s death. Prior to the inquest, I determined that the scope of the inquest would be how the fire in which Mr Hayhurst died, the Aberfeldy bushfire, started.
At the inquest, I considered the following evidence:
(a) observations of the fire ground – burn and char patterns;
(b) prevailing weather conditions;
(c) vegetation;
(d) scans from the Line Scanner;
(e) observations by ground and air fire-fighters;
(f) observations of non-fire-fighting witnesses; and
(g) Mr Vearing’s expert testimony.
Mr Vearing is the Victorian State Fire Investigation Co-ordinator at the DSE. He has over 25 years’ bushfire investigation experience, including over 200 bushfires in Victoria.
Counsel for the Code family submitted that there was evidence that supported a separate and discrete fire on Cheops, which occurred at the same time as, or prior to, the fire breaking out from the fire mound on the Code property and then combined with, or caused, the fire to the west of Donnelly’s Creek Road. They refer to the evidence contained in certain witness statements in the coronial brief, regarding observations of two smoke columns and/or the spread and location of fire fronts and spot fires,17 as tending to prove that there were two separate fires at approximately 12.00-12.30pm.
Mr Vearing considered Mrs Code’s reported sighting of smoke on Cheops at approximately 11.40am, before discounting the possibility that this was a separate fire from that which commenced at the fire mound on the Code property. He stated that the spread of the fire in 16 Pursuant to s63(2)(a) of the Forests Act 1958 17 Witnesses Julian Seri, Ronald Paynter, John Smithard, Trevor Nicklen, Craig Perry, Nicholas Shaw, Cameron Furnell, Stephen Monks and Stuart Kingston
multiple directions and at high speed was consistent with the spotting caused by the combination of steep topography and vegetation.
Aerial photographs taken by the Country Fire Authority (CFA) in the period shortly after the fire broke out showed no evidence of smoke or fire on Cheops or anywhere near the New Dawn Mine at a time that the Aberfeldy bushfire was already well-developed. These photographs are consistent with Mr Vearing’s evidence.
One of the Air Observers in the CFA fixed-wing aircraft, who photographed the Aberfeldy bushfire in its early stages, noted that “the fire development (included) multiple spot fires developing to the south-east of the main fire.”18
(a) the Forward-Looking Infrared (FLIR) scans done at approximately 3.00pm on 17 January 2013, which is entirely consistent with Mr Vearing’s evidence; and
(b) the line scans done at 3.46pm and 8.38pm on 17 January 2013 and 4.03am on 18 January 2013.
No expert evidence was called to contradict Mr Vearing’s evidence and the basis for his analysis was not challenged. Counsel for DELWP and EMV submitted, and I accept, that I should adopt the approach taken in RJE v Secretary of the Department of Justice,19 that where the facts are uncontested, and the expert opinion is cogent and unchallenged, a judicial officer should ordinarily be slow to depart from the expert’s assessment.
There was no clear and persuasive evidence which supports a finding that there was a second, discrete fire on Cheops at the time that Mr Code reported the Aberfeldy bushfire to the DSE.
It is, therefore, open to me to accept Mr Vearing’s expert evidence as to the erratic spread and behaviour of the fire that escaped from the fire mound on the Code’s property, including that it created numerous spot fires in multiple directions to the south/south-east of the fire mound and the Code property, including toward Cheops and the New Dawn Mine. I am not persuaded by Counsel for the Code family’s submission that there were two separate and discrete fires, which started and/or developed separately from the fire that Mr Code and his son lit on the fire mound on the Code property at approximately 10.00am on 17 January 2013.
18 Coronial brief, statement of Air Observer Julian Seri, pp 91-92 19 (2008) 21 VR 526 at [18]
(a) that there was a serious loss of scene integrity of the fire ground immediate to the property, due to fire-fighting action. Counsel submitted that the loss of scene integrity rendered the available fire origin and direction indicators so seriously compromised as to be unsafe; and
(b) that I should be slow to find that the intensity of the fire is not a matter relevant to the death of Mr Hayhurst, referring to Mr Vearing’s evidence that he had not seen a fire like this in his 38-year fire-fighting history.
However, I am satisfied that Mr Vearing and other fire investigators’ analysis of fire indicators was inherently sound and that their conclusions are reliable.
I do accept that the Aberfeldy bushfire was unique and unprecedented in its unpredictability and rate of spread. However, I note that matters relating to fire management and response are outside the scope of this inquest.
I note Counsel’s written submissions on behalf of DELWP and EMV in relation to the standard of proof in the coronial jurisdiction, being ‘on the balance of probabilities.’ Mr Brereton submitted that I should consider:
(a) the Court of Appeal’s decision in Transport Industries Insurance v Longmuir20 (Longmuir), that the appropriate analysis is to stand back and consider the combined weight of the established facts, to determine which of any competing alternative theories is more likely; and
(b) the Court of Appeal’s quote of the unreported High Court decision in Bradshaw v McEwans Pty Ltd,21 where it was noted that the Court was “concerned with probabilities, not with possibilities” and that, unlike the criminal standard of proof in which “the facts must be such as to exclude reasonable hypotheses consistent with innocence,” it needed “only circumstances raising a more probable inference in favour of what is alleged.”
20 [1997] 1 VR 125 21 (27 April 1951)
circumstantial alternatives) was more probable than the conclusion that the Aberfeldy bushfire originated from the fire in the fire mound at the Code property, because:
(a) there was no direct or expert evidence in respect of the circumstantial alternatives;
(b) there was no cause suggested for the circumstantial alternatives and no objective evidentiary support for the circumstantial alternatives, being no evidence of anyone being in the vicinity of the Code property who ignited the 10 alternative fires on 17 January 2013;
(c) the observations of separate fires are explicable to the extent that they were consistent with Mr Vearing’s opinion of the vegetation and topography and the multiple and erratic spot fires and extreme fires they caused. This opinion was objectively supported by the various photographs, FLIR images and line scans in evidence;
(d) no witnesses were called to give evidence in relation to the circumstantial alternatives; and
(e) the effect of proposing at least 10 alternatives was to effectively undermine each of the alternatives and make each of them less likely.
(a) Mr Vearing was unmoved from his opinion and the photograph which was said to support it was simply evidence of the spread of the fire in a manner consistent with his opinion; and
(b) his evidence was objectively supported by the CFA photographs that were tendered as part of Exhibit 2, which clearly demonstrated that there was no fire on the Cheops hill at the time when the fire that had spread from the mound was already well-developed.
Although these matters are relevant to the coronial jurisdiction, they were determined to be outside the scope of the inquest as they have been thoroughly addressed by:
(a) the 2009 Victorian Bushfires Royal Commission; and
(b) the further reforms in emergency management in Victoria following ongoing State-led inquiries into bushfire and emergency management in the nearly six years since the Aberfeldy bushfire and Mr Hayhurst’s death in January 2013.
(a) the legal framework to managing the bushfires, which was in place in January 2013 at the time of the Aberfeldy bushfire, in the context of the state-wide fire situation in January 2013, including weather conditions and fire danger, operational activity, readiness and resourcing arrangements; and
(b) an overview of the operational response from the Incident Management Team situated in the Incident Control Centre in Erica, Victoria, between 11.30am on 17 January 2013 and 8.00am on 18 January 2013, namely predictive services used to manage the Aberfeldy fire and the incident control response to the Aberfeldy bushfire.
(a) a timeline and chronology of the fire; and
(b) an overview of warnings and advice, including emergency alerts and management of vulnerable people following recommendations of the 2009 Victorian Bushfires Royal Commission.
(a) pursuant to section 67(1) of the Act:
(i) that the identity of the deceased was Stanley Hayhurst, born 24 August 1928;
(ii) that Mr Hayhurst died on 18 January 2013, at 153 Johnson Lane, Seaton, from the effects of fire; and (iii) that the death occurred in the circumstances set out above; and
(b) pursuant to section 68 of the Act:
(i) that the Aberfeldy bushfire occurred on 17 January 2013 and was declared ‘under control’ on 14 March 2013 and ‘safe’ on 27 June 2013; and (ii) that the cause and origin of the Aberfeldy bushfire was the fire lit by Mr Code and his son prior to 10.00am on 17 January 2013, and which broke out from the fire mound on the Code’s property, at 270 Donnelly’s Creek Road, Aberfeldy.
(a) Jennifer Hayhurst, senior next of kin;
(b) Detective Sergeant Paul Tierney, Coroner’s Investigator, Victoria Police;
(c) Department of Environment, Land, Water and Planning;
(d) Emergency Management Victoria; and,
(e) Grahame Code.
Signature: ___________________________________
IAIN WEST ACTING STATE CORONER Date: 11 January 2019
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