The discussion that followed my post, ‘Questions about the new Work Health and Safety laws’ lead to a discussion the subject of what is the duty of the fire brigades to actually respond to a fire. I said that the law is that the fire brigades are there for the benefit of the community at large, not individuals so there is no duty on a fire service to actually attend and fight a fire burning on private property. A commentator asked ‘Are there any precedents to similar actions in other states or countries?’ and I referred to the decisions from the UK (Capital and Counties v Hampshire Council  QB 2004) and the United States (Charles Albert v. City of Billings, 2912 Mont. LEXIS 208).
Another emergency law blogger, Kurt Varone from the United States, has raised another issue on his blog ‘Can a homeowner whose house is on fire refuse AMA?’ (For a discussion on a similar question, the right to refuse rescue see my post ‘Is there a right to refuse rescue?’) These may appear to be quite different issues; can a homeowner stop the fire brigade attending versus can a homeowner insist that they come, but the answer in fact turns on the same fundamental question: why are the fire brigades there? Varone argues that there is no power to refuse fire fighting or to deny fire fighters the right to enter a property to investigate when they have received a fire call. He says:
… the right of firefighters to enter peoples’ homes and properties does not flow from a duty to help a particular property owner who’s property is on fire. Rather, it flows from the risk that a fire in someone’s home poses to the public at large. No doubt firefighters have a moral duty to the particular homeowner who’s house in on fire, but the bigger picture is that there is a duty owed to the person’s neighbors, the neighbors’ neighbors, the neighbors’-neighbors’ neighbors, and so on.
The ‘no duty to attend’ also depends on the principle that the duty of firefighters is not ‘a duty to help a particular property owner who’s property is on fire’ but is ‘… a duty owed to the person’s neighbors, the neighbors’ neighbors, the neighbors’-neighbors’ neighbors, and so on’ which means that they have to be able to make decisions not to fight the fire where it is burning but to take action, and deploy resources, where they think they can achieve the most good for the most people.
Historically, and today, fire brigades have broad powers to do damage to contain the spread of fire so that they can not only damage the house on fire, but also neighbouring properties in order to create a fire break. To again quote Kurt’s blog:
… back before we had modern reliable fire apparatus and equipment, exposure protection often meant the destruction of exposures through the demolition of buildings in advance of a fire to create a fire break. Such drastic measures were accepted because society recognized the magnitude of the problem.
Those sort of powers, that still exist in all modern fire brigade legislation, are inconsistent with a duty to protect individual properties.
These issues are expected to, again, be the subject of discussion when we get a result in the 2003 Canberra fires litigation.