I am a Senior Deputy Captain with the NSW RFS. In the RFS in order to go to callouts a member must successfully complete the bush firefighter (BF) course. As the name suggests this course teaches bush and grass fire fighting skills. There is a separate course which teaches village firefighting skills (VF) which is often done until about a year after BF and teaches skills relating to village firefighting incidents such as motor vehicle accidents, structure fires and car fires.

As I mentioned within the RFS members are able to start attending incidents once they have completed BF, regardless of what the incident is. This means that it is not unusual, particularly within village type brigades such as mine to have crew at village type incidents who have not completed the VF training course.  The relevant NSW RFS service standard  (6.1.2) does specify that the minimum qualification required to “Fight a village type fire (structure/vehicle)” is village firefighter but it is normal practice (and district staff are certainly aware that it happens) within all RFS areas I know of for members to attend village type incidents even if they are not village qualified. If only village qualified members were sent then there are cases where brigades may not be able to send a crew.

This then leads to a few questions:

  1. As an officer should I be stopping non VF qualified members from attending village type incidents?
  2. Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?
  3. Is there any liability if a member of the public or their property is injured / damaged as a result of the actions of a non VF qualified member at a village type incident?

The answers to these questions will, as if often the case, turn on the risk assessment.  In the normal way with legal analysis we can start with the ‘rules’ and then apply them to the facts.  The first relevant rules is Service Standard 6.1.2.  For mainstream fire fighting roles, the Service Standard says, in Appendix 1, that in order to:

  •          ‘Fight a village type fire (structure/vehicle)’ one needs to be qualified as a Village Firefighter (VF).
  •          Lead a crew ‘fighting a village type fire’ you need a qualification as ‘Crew Leader Village (CLV)’.
  •          Fight a village fire using an interior attack, one needs qualifications as a Breathing Apparatus Operator (BAO).

These ‘requirements do not apply in rural remote brigades’ that is ‘farm based brigades’.  I infer that my correspondent is not from a ‘rural remote brigade’.   Further:

Using a risk management approach, a District Manager may waive any of the requirements for volunteer qualifications in their area of jurisdiction, provided they are working to achieve compliance within a reasonable time and are satisfied that current operations can be conducted safely.  (Service Standard 6.12, [2.4]).

I will assume that no such waiver has been made.

Next we need to consider the Work Health and Safety Act 2011 (NSW) which says that person conducting a business or undertaking (the PCBU, in this case the Rural Fire Service) has to ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person …’ (s 19).  As is now well known, ‘workers’ includes volunteers (s 7).   What reasonably practicable means is:

… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (s 18).

Although not a binding precedent, a Scottish Sheriff (the equivalent of our Coroner) in a report on the Death of Alison Hume (see ‘Legal confusion leads to unnecessary death’ 8 December 2011) was critical of the Strathclyde Fire and Rescue service for rigidly adhering to a policy directive without stopping to think what was the actual risk and importantly how severe was the risk compared to the objective to be achieved.   There is always a risk to fire fighters but that doesn’t mean we don’t let fire fighters fight fires, the benefit of fighting fires warrants some risk but steps must be taken to minimise but not eliminate all risks.

Finally let’s remember the rule, referred to often in this blog, about the fire brigades’ duty of care.  In Capital and Counties v Hampshire Council [1997] QB 2004 the UK court ruled that fire brigades are not established for individual benefit but for community benefit and they do not owe a duty of care to individuals.  In that case the court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said

In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

If they do owe a duty it is a duty not to make the situation worse, not necessarily to make it better (see any number of posts on this blog at https://emergencylaw.wordpress.com/?s=capital+and+counties).

If they are the relevant rules let us try to apply them to the facts as given.   The situation is that there is a fire in the ‘village’ and the RFS have been called.  The members are only qualified to BF.  (I would expect that there may be some qualified to VF but that’s not in the facts as given so I will assume that in fact none are qualified to VF).   Presumably there is a neighbouring brigade that may be able to come, and depending on where the village is NSW Fire and Rescue may also be dispatched but I will assume that their response times will be sufficiently long that waiting for them is not a real option.

Remember that fire brigades are established for the community benefit and what the community requires is that the village is not razed; the loss of a single building will be bad for the building owner and may be quite devastating for the village if it is a key piece of infrastructure (the pub or the shop) but losing that will not be as bad as losing the entire village or shopping strip.   The RFS has received the call and it is the function of the Rural Fire Service to provide rural fire services which includes protecting people, property and infrastructure from damage by fire (Rural Fires Act 1997 (NSW) s 9).  As the local brigade you have two options: go or don’t go.

If you don’t go, the risk to the community is self evident.   There won’t necessarily be any ‘liablity’ if you don’t go, there is no duty of care to individuals, it is not clear but the balance of authority would say that the obligations set out in s 9 do not give a person a right to sue if you don’t go (Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).  If there is liability it would fall on the RFS, not individual members as it is the RFS (if anyone) that is required to respond, not individuals – volunteers can always not volunteer.   But as noted, the risk is self evident and no doubt volunteer fire fighters volunteer to support and protect their community.

The alternative is to go.  What’s the risk, so far nothing more than the risk of responding to any fire. The members get in the appliance and they go and arrive at the fire scene.  Now the options are more complex: what do you do when you get there?    Now is the time for risk assessment – if your there for the community benefit the objective has to be to contain the fire.  An urban brigade, or an RFS brigade, staffed with VF and BAO qualified fire fighters may see their measure of success as containing the fire to the room of origin (see Productivity Commission Report on Government Services 2014 (Commonwealth of Australia, 2014) Volume D, Chapter 9, page 9.33) but that is not a reasonable expectation here.  Here containing the fire to the building of origin is more realistic.

I’m not a fire fighter but I can imagine there are a number of strategies that could be deployed which involve fighting the fire from the street.  There is no need to actually enter the building.  It could be that fire fighting resources are in fact deployed to simply wet down neighbouring buildings and deal with spot fires and allow the burning building to burn.

Again risk assessment is the key and to again quote Mason CJ from Wyong Shire v Shirt (1980) 146 CLR 40 (at 48), an assessment of what is reasonable

… calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

So the officer in charge has to consider the risk to firefighters, the risk to the community, what can be done to mitigate those risks and the like.

Let me return to the questions:

  1.  As an officer should I be stopping non VF qualified members from attending village type incidents?

If members are allowed to attend with BF then I don’t see why.  That answer may be different if there is a specific instruction from the RFS to that effect, but you tell me that members are allowed to attend with BF and the service standard says they’re not allowed  to ‘fight’ a village type fire, but that doesn’t mean that they are not allowed to go.   And then we have a question of what does ‘fight’ a village type fire mean?  We can reasonably infer that they should not be going into the burning building – regardless of definition of ‘fight’ that’s just too risky – even if there are people in the building!

Within the RFS you must know what is taught in the VF course and what the extra skills are and the OIC/IC can determine what skills are required. If turning the water onto nearby homes is the best option that, I would think, is quite consistent with a BF skill.

  1.  Is there any liability on myself, a non VF qualified member or the brigade either from a WHS perspective or more generally if a non VF qualified member gets injured/killed at a village type fire?

There is unlikely to be personal liability.  The RFS would be liable to pay compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but that’s a no fault scheme.  Under common law the RFS would also be liable for the negligence of its volunteers  and one would argue they were negligent in not sufficiently training you on what to do – particularly given ‘district staff are certainly aware that it happens’.

By virtue of the Work Health and Safety Act 2011 (NSW) s 34, a volunteer’s duties are limited to those set out in s 28 and 29.  Section 28 says:

While at work, a worker must:

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

(Section 29 is similar and relates to the duty to protect others at the workplace and will not be discussed here).

There may be a breach of s 28(b) if you, as the IC, directed a non-qualified fire fighter to enter the building to rescue the cat.   It may be argued that as the captain you did not ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the[PCBU]’ but as we’ve noted there does not appear to be a specific instruction that BF firefighters can’t go, only that they can’t ‘fight’ a village type fire.   And an instruction not to go at all may not be a ‘reasonable instruction’ given the risk to the village and that the Brigade may be able to do something to contain the fire even if they cannot save the building that is on fire.

So short of blatant stupidity, or malicious intent, there will not be personal liability.  The RFS may be liable but as in all cases it would depend on the circumstances.   What killed or injured the fire fighter?  What was the risk assessment?  Were the factors listed in section 18 (above) considered?  When considering the risk was concern also given to the purpose to be achieved ie the need to contain the fire?

(I do know that there are specific duties on ‘officers’ under the WHS Act s 27; but a Senior Deputy Captain may be an RFS Officer but he or she is not an officer as that term is defined in the WHS Act s 247 and see also s 34 which exempts volunteers from the ‘officer’ provisions).

  1.       Is there any liability if a member of the public or their property is injured damaged as a result of the actions of a non VF qualified member at a village type incident?


Let me explain in more detail.   The duty of the RFS is only not to make the situation worse.  The property is on fire, what’s the fire fighter going to do to make the situation worse?    I guess they could do what one of the defendants did in Capital and Counties v Hampshire Council [1997] QB 2004 which was turn off the sprinklers before the seat of the fire had been located with the consequence that the building was lost and would have been better protected if the fire fighters had not shown up at all.

But we know that an Act done in good faith does not attract liability (Rural Fires Act 1997 (NSW) s 128) so provided the fire fighter is doing his her honest best there will be no liability (see also my post on Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)).

What of the claim that they didn’t do enough?  Well as noted the common law would say that the brigade’s duty is to the community not to the owner of the property; if the property was going to burn without them brigade in attendance then it doesn’t matter if it burns when they are there if they are doing things like protecting the neighbouring properties.    Finding a duty to protect the property would be inconsistent with the RFS legislation in particular s 25 which says:

(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire … (b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,

If the only way to contain the fire was to drive a bulldozer over it, that could be done to protect the village and provided it was done in good faith would not expose the RFS to liability.  ‘A man may justify pulling down a house on fire for the safety of the neighbouring houses’ (Malverer v Spinke (1538) 73 ER 79, 81 (and yes, the reference to 1538 is correct)).  If you have the power to destroy the building you can hardly be liable for failing to save it (Board of Fire Commissioners v Rowland [1960] SR(NSW) 322).

The property owner cannot sue the RFS for not having VF qualified fire fighters.  The RFS has the resources it has, both in money terms and in terms of volunteers and cannot be sued for not responding with that which it does not have (Civil Liability Act 2002 (NSW) s 42).

‘The moral of the story is … : make sure you have insurance cover for losses occasioned by fire on your premises’ (Stannard v Gore (2012) EWCA Civ 1248, [50] (Ward LJ)).


The conclusion has to be, subject to any specific direction to the contrary, that you turn out and do the best you can but in doing the best you can you have to take ‘reasonable care’ for, and ensure so far as is ‘reasonably practicable’, the health and safety of everyone, the firefighters, bystanders, people in the property etc but what that means depends on all the circumstances.  You have to consider the risks, what is the most effective thing that can be done without exposing people to clearly unacceptable risks (do not let the BF firefighter actually enter the building), and do the best you can.

I don’t think the law would expect any more, or less.