I’m asked by a consultant who has:
… been in Wye River this week investigating design and construction options for re-building.
Community members have been asking me whether Victorian law deals with the following:
- Can the responsible authority be held liable for property loss (and other financial impacts such as lost income from tourism), where it was reasonable that the fire should have been contained? Is this a case of negligence? This relates to the Christmas Day Wye River fire.
- Can the responsible authority be held liable for property loss when a prescribed burn is not controlled? (Example – Lancefield fire 2015)
- Private landowners can be fined up to $14,000 for not reducing bushfire risk (fuel) on their land with fire prevention notices. Apart from being issued with fines, does the law deal with liability for the management of bushfire risk? Are there any differences in how the law is applied if you are a private landowner or a public landowner/manager?
I’m going to take the easy way out and mostly answer these questions by reference to earlier posts but people come to this site anew and finding old posts can be hard. So here goes:
1. I make no comment on the Christmas Day Wye River fire as I have no knowledge on how that fire started or is alleged to have started or about the response to the fire. Speaking generally the answer is ‘probably not’ (never say never). Apart from the difficult in proving that at the time (not with the benefit of hindsight) it was obvious that some other tactic would work, the fire authorities do not owe a duty of care to protect individual property holders. See:
- Arizona State Forestry Division not liable to homeowners for property lost in the Yarnell Fire, 2013 (May 8, 2015);
- ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014);
- Queensland Fire and Rescue not liable after factory fire (October 3, 2014);
- Myer Stores Ltd v State Fire Commission  TASSC 54 (August 24, 2012);
- Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701 (July 19, 2012).
- See also Michael Eburn, ‘A case study of tort liability for fire damage’ (2007) 22(1) Australian Journal of Emergency Management 44-48.
2. The answer is here is ‘yes, if it can be proven that there was negligence that is the person who lit the fire failed to take reasonable care’. The mere fact that the fire escapes does not however prove negligence. Where there is a hazard reduction burn the defendant is introducing fire into the landscape and has to consider the weather, availability of firefighting appliances and always has the choice to light the fire or not. The inherent danger of introducing fire can mean that the duty the defendant owes to those likely to be affected by the fire equates to a duty to guarantee safety. As Chief Justice Mason along with Justices Deane, Dawson, Toohey and Gaudron said in Burnie Port Authority v General Jones (1994) 179 CLR 520 (at ), a case which involved liability for the accidental spread of fire in a warehouse:
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. … Even where a dangerous substance [such as fire] or a dangerous activity … 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”.
But the danger from the possible escape of fire has to be balanced against the benefits to be obtained by the risk reduction so that may justify ‘taking the risk’. See:
- Liability for escape of clearing fire (WA) (December 11, 2015);
- Damned if you do, damned if you don’t – what to do about personal hazard reduction (October 22, 2013);
- No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012).
3. There is generally no duty at common law to take steps to reduce hazards, that is in part why obligations are imposed by legislation with fines and other penalties for failing to comply. The law certainly does distinguish public land managers as they have to manage the land in accordance with their statutory duties so managing a land as, for example a national park, means there are limitations on the use of fire or other hazard reduction. Clear felling or even clearing understory bush in a national park may well reduce the risk but would defeat the objective of having the national park and that has to be taken into account in asking what a ‘reasonable’ landowner would do. For specific discussion see:
- Liability for failing to reduce a fire hazard in Victoria (January 7, 2015);
- Landholders duty of care for fire and other hazards (March 22, 2014).