The Wanganui Chronicle in New Zealand is reporting that ‘The National Rural Fire Authority will seek more than $100,000 in costs from the person they believe is responsible for last summer’s Santoft forest fire’ (Zaryd Wilson, ‘Fire Authority seeks Blaze costs’ Wanganui Chronicle (online) 1 October 2015).

The Forest and Rural Fires Act 1977 (NZ) s 43 provides that a person who is responsible for the ‘outbreak’ of a fire is also responsible for the costs of fighting that fire and protecting neighbouring properties.  One can envisage that in many cases, particularly where the fire fighting is effective, the costs of fighting the fire may be much higher than the damages caused by the fire.   The Act also provides that the person responsible is liable to pay for the loss or damage to any property caused by the fire.

The legislation imposes strict liability, that is the liability is established without the need to prove negligence or lack of care (Garnett v Tower Insurance Limited [2011] NZCA 576. [38]). Further, ‘The harm need not be foreseeable. However, the defendant is not liable where the harm, although produced by his or her actions, was an extraordinary consequence, not a normal fact of life’ (Nelson Forests Limited v Three Tuis Limited [2013] NZHC 856, [24]).

In West v NZ Fire Service Commission  [2007] NZHC 1274 the defendant had lit and was monitoring a fire on his property.  When he realised it was approaching the property boundary he made an emergency call and requested assistance, in particular, ‘the use of a helicopter and monsoon bucket’ to extinguish the fire.  Rather than simply provide the services requested, the New Zealand Fire Service and the relevant council made their own assessment of the resources required to suppress the fire.  In an action to recover the costs of the fire fighting Mr West argued he should only be liable for the costs of the services he requested.  Not surprisingly he lost that argument.

Both West Australia (Bushfires Act 1954 (WA) s 58) and the Northern Territory (Bushfires Act (NT) s 57A) have provisions that allow for the recovery of fire fighting costs but in both of those jurisdictions, liability only arises if the person responsible has committed an offence or failed to comply with the provisions of the Act. In New Zealand the liability does not require any allegation or proof that the fire was illegally lit; liability ‘is not contingent on the one responsible having committed any offence, or any offence of a particular character. It stands quite apart from the array of offences that the 1977 [Forest and Rural Fires] Act creates’ (Department Of Conservation v Smythe [2008] NZHC 1316, [62]).