The discussion that followed my post, ‘Questions about the new Work Health and Safety laws’ lead to a discussion the subject of what is the duty of the fire brigades to actually respond to a fire. I said that the law is that the fire brigades are there for the benefit of the community at large, not individuals so there is no duty on a fire service to actually attend and fight a fire burning on private property. A commentator asked ‘Are there any precedents to similar actions in other states or countries?’ and I referred to the decisions from the UK (Capital and Counties v Hampshire Council [1997] QB 2004) and the United States (Charles Albert v. City of Billings, 2912 Mont. LEXIS 208).
Another emergency law blogger, Kurt Varone from the United States, has raised another issue on his blog ‘Can a homeowner whose house is on fire refuse AMA?’ (For a discussion on a similar question, the right to refuse rescue see my post ‘Is there a right to refuse rescue?’) These may appear to be quite different issues; can a homeowner stop the fire brigade attending versus can a homeowner insist that they come, but the answer in fact turns on the same fundamental question: why are the fire brigades there? Varone argues that there is no power to refuse fire fighting or to deny fire fighters the right to enter a property to investigate when they have received a fire call. He says:
… the right of firefighters to enter peoples’ homes and properties does not flow from a duty to help a particular property owner who’s property is on fire. Rather, it flows from the risk that a fire in someone’s home poses to the public at large. No doubt firefighters have a moral duty to the particular homeowner who’s house in on fire, but the bigger picture is that there is a duty owed to the person’s neighbors, the neighbors’ neighbors, the neighbors’-neighbors’ neighbors, and so on.
The ‘no duty to attend’ also depends on the principle that the duty of firefighters is not ‘a duty to help a particular property owner who’s property is on fire’ but is ‘… a duty owed to the person’s neighbors, the neighbors’ neighbors, the neighbors’-neighbors’ neighbors, and so on’ which means that they have to be able to make decisions not to fight the fire where it is burning but to take action, and deploy resources, where they think they can achieve the most good for the most people.
Historically, and today, fire brigades have broad powers to do damage to contain the spread of fire so that they can not only damage the house on fire, but also neighbouring properties in order to create a fire break. To again quote Kurt’s blog:
… back before we had modern reliable fire apparatus and equipment, exposure protection often meant the destruction of exposures through the demolition of buildings in advance of a fire to create a fire break. Such drastic measures were accepted because society recognized the magnitude of the problem.
Those sort of powers, that still exist in all modern fire brigade legislation, are inconsistent with a duty to protect individual properties.
These issues are expected to, again, be the subject of discussion when we get a result in the 2003 Canberra fires litigation.
Michael Eburn.
Australian Emergency Law 
Michael, is this view not contrary to the Fire Brigades Act (NSW) which states;
11 Brigades to proceed with speed to suspected fires or hazardous material incidents
(1) When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.
Jason
There is no inconsistency here. The Fire Brigades Act 1989 (NSW) is directing the Brigades to respond but it doesn’t deny that the reason they respond is to protect the community, not the individual.
Further, the sort of action where someone wants to sue a government agency for not doing what a statute says is called an action for ‘breach of statutory duty’. In order to succeed it is necessary to satisfy the court that the Parliament intended that the ‘remedy’ was intended to be a right of an individual to sue for damages, rather than to seek an order to compel the government to do what the Act says (an administrative law remedy). If there is a criminal penalty attached then the inference is that the duty is to be enforced by the criminal law, not tort law. Where there is no clear remedy, the Court has to still decide whether, taking the whole Act into account, the Parliament intended to give individuals the right to sue for non-performance of the statutory duty.
In Bennett & Wood v Orange City Council; Board of Fire Commissioners (3rd Party) (1967) 67 SR(NSW) 426 the Supreme Court had to consider the effect of the Fire Brigades Act 1909 (NSW) s 28, which was, in effect, the same as the current Act (Fire Brigades Act 1989 (NSW) s 11). In that case the Court held that the provision was not intended to give a person a right to sue over an alleged failure to meet that obligation. The effect of the judgement is summarised in the headnote (which is a brief summary, not part of the judgement that appears at the start of the ‘report’) which says ‘Sections 19(1) and 28 of the Act are merely descriptive of the obligations of the Board and do not confer any right of action.’ Part of their reasoning was that the Fire Brigades legislation gave the brigades extensive powers to do damage to property as part of their fire fighting and the presence of a broad immunity (that is a section that said the brigades would not be liable for actions in good faith; Fire Brigades Act 1909 (NSW) s 46; Fire Brigades Act 1989 (NSW) s 78) meant it was inconsistent, on the one hand, to give broad immunity from legal liability and on the other, to infer an intention to allow people to sue for not responding with ‘all speed’. In short the Act tells the Brigades what their job is, what they are to do, it is a direction from the legislature to the Commissioner, but it is not an obligation that can be enforced by an action for damages.
Michael Eburn.
How do you see the relationship then, with the insurance companies who pay the majority of funding toward fire services in states like NSW? Is there not a responsibility to put a fire out for the insurer, as much as the owner? It is, after all, the insurance companies who benefit predominantly from fire services financially, not the insured or the owner.
This is a repost of an answer I made on 25 July:
“The RFS will not owe a duty of care to the insurance companies that pay the levy. It is not a fee for service; they (and the councils) pay the levy because they are required to do so by law (see Rural Fires Act 1997 (NSW) Part 5), not because they are entering into a contract for a service. It’s like tax, we all pay tax because we are legally obliged to do so, but we don’t get a direct say in how it is spent and you can’t claim your share of education, or defence or other government service on the basis that you pay tax. The purpose of the levy is to fund the emergency services but whether or not insurance companies should be paying it, and passing the costs to their policy holders, is a matter of debate, see http://haveyoursay.nsw.gov.au/esl.”
That answer related to the RFS but it applies equally to NSW Fire and Rescue and the provision of the Fire Brigades Act 1989 (NSW) Part 5.
Michael.