I have been asked:
What ‘duty to warn’ does a government agency have to private property owners?
What moral obligations does a fire controller have to advise about a hazard reduction burn that was undertaken and then the body becomes aware of an impending change of weather. The change in weather, which was predicted before the fire was lit, caused damage to property.
The fire controllers took preemptive measures in the event the hazard reduction burn might escape but forgot to advise the local property owners…where does ‘duty to warn’ sit when they have knowledge. Locals did not know that the fire was not extinguished and the fire controllers had at least 48 hours knowledge of the impending weather change.
We feel they have not acted in ‘good faith’ as they have failed under the part of ‘good conscience’ and having shown a disregard for their moral obligation to warn?
Any comments? This is not a matter under litigation and we won’t be pursuing it in a court…we are attempting to negotiate an ex gratia payment for uninsured losses. Our claim for damages was rejected and after 12 months they opened another investigation based on information they requested from us – again they are hiding under S128, but we feel they have not acted in good faith.
Any comments would be appreciated? Any precedent we could use for ‘duty to warn?”
I suppose it will come as no surprise if I say that as a lawyer, writing a blog on law, I’m not going to enter into the issue of ‘moral obligations’ except to the extent that they are relevant to legal obligations.
There have been no relevant cases that specifically deal with ‘duty to warn’ – but see articles I’ve written on ‘failure to warn’:
- ‘The emerging legal issue of failure to warn’ (2012) 27(1) Australian Journal of Emergency Management 52-55.
- ‘Litigation for failure to warn of natural hazards and community resilience‘ (2008) 23(2) Australian Journal of Emergency Management 9-13.
I note that my correspondent refers to ‘the body’. Reference to s 128 tells me that my correspondent is referring to the Rural Fires Act 1987 (NSW). The agency responsible for the fire may have been the RFS, National Parks, State Forests or even a private land owner. For the sake of this discussion I’m going to infer that the control agency was the RFS and I’m going to talk in general principles. This is not legal advice on any particular fire and I have no details other than those given above. These are therefore general observations based on the following facts, which I infer from the question:
- The control agency has planned and lit a hazard reduction burn;
- The control agency took action to contain the burn but failed to notify neighbours so that they could take action to protect their own property.
- A predicted weather change came through and caused the fire, that had not been extinguished to damage the neighbouring property.
- Had the neighbours been warned both of the burn and of the weather they could have defended their property.
Let me reiterate I don’t know if any of those facts are true; there is no doubt the agency (which I shall assume was the RFS) will have a different view; and the outcome of any actual claim depends very much on the facts.
The Rural Fires Act 1997 (NSW).
The starting point is the Rural Fires Act 1997 (NSW). Where there is intention to light a fire ‘to burn off or burn firebreak’ (s 86) notice must be given to:
(a) the occupiers (or, if there are no occupiers, the owners) of all land contiguous to, or that is separated merely by a lane, road or waterway (whether fenced or unfenced) from, the land on which the fire is to be lit, and
(b) if the land on which the fire is to be lit is in a rural fire district, the fire control officer for the district… (Rural Fires Regulation 2013 (NSW) reg 33).
Paragraph (a) is a long way of saying that notice has to be given to the neighbours, not any property owner in the community. It is unclear from my correspondents question whether their property was next to the property where the fire was lit, or further away.
There is no specific duty to warn people that a fire has not been extinguished and that, of course, begs the question of whether they knew the fire had not been extinguished.
The common law
Historically there was strict liability for the spread of a fire. If a person brought something dangerous onto a property and that thing escaped, then the person was liable regardless of any question of whether or not they took reasonable care. This is a summary of the rule in Rylands v Fletcher  LR 3 HL 330 (see ‘Landholders duty of care for fire and other hazards’ (March 22, 2014)). The rule in Rylands v Fletcher is no longer part of Australian law, today the issue is determined as an issue of negligence. A plaintiff has to show that the defendant owed a duty of care and that they failed to take reasonable care that led to their damage. As I said in that earlier post:
In Burnie Port Authority v General Jones (1994) 179 CLR 520), Mason CJ, Deane, Dawson, Toohey And Gaudron JJ said (at ; references omitted and emphasis added):
Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety“.
So the duty that a landowner has to prevent the spread of a fire or other hazard is a duty to take reasonable care. What that means will vary in all the circumstances including whether, in the context of fire, it was deliberately lit by the landowner or an arsonist or whether it was started by ‘natural causes’.
It follows that the duty of a landowner to take steps to control a fire that is started by lightning, will be quite different to the duty owed by a person (whether the RFS or a landowner) who is going to light a fire. When it comes to lighting a fire, the ‘owner’ of the fire can chose not to light the fire if the weather is wrong or if there are insufficient resources to control the fire. One would expect that anyone who lights a fire, and who fails to extinguish it will be liable for any damage done, but one has to take into account both the social utility of hazard reduction and the fact that government agencies must execute government policy.
One factor to be taken into account when deciding what a reasonable defendant would do is ‘the expense, difficulty and inconvenience of taking alleviating action’ (Wyong Shire v Shirt (2005) 223 CLR 422  (Mason J)). In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management  WASCA 79 Pullin JA (dissenting) took the view that, when considering a hazard reduction burn, there is no ‘expense, difficulty or inconvenience’ in not conducting a burn so that was not a factor to be taken into account.
In that case the Western Australia Supreme Court of Appeal held there was no liability when smoke from a hazard reduction burn adversely affected a grape crop (see No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)). Pullin JA took the view that not only was there no cost in not doing a burn, there was no scientific evidence in support of hazard reduction burns and he took that view despite the evidence before, and recommendations of, the 2009 Victorian Bushfires Royal Commission.
The majority in that case (McLure P and Buss JA) took a different view accepting that the Department of Environment and Conservation had to implement the government’s policy of conducting hazard reduction burns and that the social benefit of the burns warranted running the risk that did occur.
Deciding where the appropriate balance between the risk is, no doubt, controversial (see ‘Damned if you do, damned if you don’t – what to do about personal hazard reduction’ (October 22, 2013)).
Section 128 of the Rural Fires Act says
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
Relying on s 128 is not ‘hiding’ it is giving effect to the law as intended by Parliament. That section is supported by s 72 which says:
Any damage to property caused by a person in the exercise in good faith of a power conferred by or under this Division [that is Part 4, Division 2, Bush Fire Hazard reduction] is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the damaged property.
It seems unnecessary to say that damage caused by a fire is deemed to be damage by fire but hazard reduction work can be done by means other than fire. The combination of sections excusing agencies from liability for acts done in good faith, and also setting up an alternative scheme of compensation (in this case requiring insurance companies to cover the damage as if it was caused by fire) suggest that there is no common law duty of care, as Blow J said in Myer Stores Ltd v State Fire Commission  TASSC 54
At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public.
As noted the facts set out by my correspondent are different to other recent cases as they have dealt with the response to unplanned wildfire, not deliberately lit hazard burns, but whether that will make a significant difference remains to be seen.
A defence under s 128 applies when the RFS officers are acting ‘in good faith’ that does not mean without negligence. The section must apply when there is negligence otherwise it has no work to do (see ‘ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires’ (November 3, 2014).
In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales  ACTCA 45 Katzmann J said:
In my opinion, for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.
A person who acted without “‘good conscience’ and having shown a disregard for their moral obligation to warn” may not be acting in good faith but that would require proof that the person themselves believed that good conscience and their moral duty required some other action. The fact that a person acts in a way that another thinks is contrary to some moral obligation does not prove that the actor shared that view or that was their moral obligation. It will be hard to ever establish that a fire fighter acting to implement the agencies policy was acting in a way that was contrary to their own ‘good conscience’. It would be impossible to show that they thought they should warn someone but chose not to for some ulterior purpose.
Ex gratia payments
An ex gratia payment is one made without legal obligation. Regardless of legal obligations, a defendant may chose to make a payment because settling a case may well be quicker and cheaper than not and may also cost good will. There is no doubt that even with legal protection, governments, and the Rural Fire Service settle cases without admitting liability. See:
- Michael Eburn and Stephen Dovers ‘Australian wildfire litigation’ (2012) 21(5) International Journal of Wildland Fire488-497.
- Canberra bushfire litigation settles against the ACT (September 20, 2012);
- Final word on South Australian bushfire litigation from 2005 (January 7, 2014)
- ‘Black Saturday bushfire survivors secure $500 million in Australia’s largest class action payout’ (July 15, 2014)
My correspondent asked for ‘Any precedent we could use for ‘duty to warn?” As noted there are no specific cases dealing with duty to warn, but it appears to me that two relevant precedents in this matter will be:
- Burnie Port Authority v General Jones(1994) 179 CLR 520; and
- Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management WASCA 79.
My view of those cases, and other legal principles, can be summarised as:
- The agency conducting a hazard reduction burn has a duty to take reasonable care to protect those that may be impacted by the burn. Given they are starting the fire that duty may approach strict liability;
- Even so the legal obligation is to act ‘reasonably’ and that has to take into account the social utility and policy of hazard reduction.
- There is a legal obligation to warn neighbours that is people whose property adjoins the property on which the fire is lit, not the entire community. Whether there is a common law duty to warn others is not established.
- Although in any legal action the defendant, relying on a clause like s 128 has the burden of proving ‘good faith’ that does not require specific evidence. It is unimaginable that a plaintiff could bring evidence of lack of good faith and mere proof of negligence will not prove a lack of good faith.