Would people take more care if they could be billed for the cost of putting out a fire that they negligently started?  That power is available in California but its use is attracting some criticism – see “California pushes – some say too hard – to recover money for fighting wildfires” Kevin Yamamura, The Sacramento Bee 17 February 2013.

In New Zealand there is a power to recover the cost of responding to a rural fire where “responsibility for the outbreak is acknowledged by, or is established by action or otherwise as caused by, any person” (Forest and Rural Fires Act 1977 (NZ) s 43).  In Department of Conservation v Smythe (Unreported, District Court at Kaikohe, Callander J, 2 October 2007 and 17 October 2008) the defendant was fined $300 but received a bill for fire suppression costs in excess of NZ$115 000.

In some Australian jurisdictions, fire brigades may charge a prescribed fee when responding to a fire, hazardous materials incident or false alarm (Emergencies Act 2004 (ACT) s 201; Fire and Emergency Act 1996 (NT) s 43; Fire Brigades Act 1989 (NSW) s 40 (but only where the NSW Fire Brigades are responding to a fire outside a Fire District or to a hazardous materials incident); Fire and Rescue Service Act 1990 (Qld) s 144; Fire and Emergency Service Act 2005 (SA) s143; Fire Service Act 1979 (Tas) ss 109 and 109A (but only where the property affected by the fire is uninsured or the response is due to a false automatic fire alarm)).  Charging a prescribed fee is not the equivalent of charging the actual costs of fire suppression activities.

In Victoria, the costs of providing fire fighting services, both urban and rural, may be recovered from the owners of uninsured property (Metropolitan Fire Brigades Act 1958 (Vic) ss 66, 66A; Country Fire Authority Act 1958 (Vic) ss 87, 87A).  Similarly, the South Australian Country and Metropolitan Fire Services can recover the costs of fighting a fire on a “vessel” where a levy has not been paid under the relevant emergency services funding legislation (Fire and Emergency Service Act 2005 (SA) s142).  Recovering the costs incurred in protecting one property will not equate to collecting the costs of the entire response to a large fire, and in this scheme liability falls on the owner of the property that needs protection, not the person or organisation responsible for starting the fire.

In the Northern Territory and Western Australia, the costs of rural or bush fire fighting operations may be recovered if it can be shown that the actions that started the fire constituted an offence under the relevant Act (Bushfires Act 1980 (NT) s 57A; Bush Fires Act 1954 (WA) s 58).   An action to recover the costs of fire fighting operations may be expected to lead to litigation as a person served with an account may seek to show that their actions were not the cause of the fire or to challenge the amount claimed on the basis that the amount claimed was unreasonable or was not incurred as a result of the response to the particular fire or incident.  There appear, however, to be no cases where these sections have been tested suggesting that they are not widely used.

Michael Eburn

18 February 2013.