This could appear as a comment to my previous post on parking in front of a fire hydrant, but I couldn’t then add the photo, below.  A friend and retained firefighter with Fire and Rescue NSW asked:

“What rights do fire fighters have do damage property that isn’t directly involved in a fire or other emergency? I do understand we can damage property if it is involved or at threat but like this picture below what about a vehicle halfway down the block.”fire hydrant parking

That’s an amusing photo, but one has to think that was malicious rather than necessary. The hose could have been routed across the bonnet or even between the two parked cars. Putting the hose on the bonnet may have damaged the car but that would be justified and lawful, I’m not so sure about putting it through the window. I’ll explain in more detail.

The Fire Brigades Act 1989 (NSW) s 13 says that the officer in charge, at the scene of a fire, “may take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire.” Further, the “officer in charge may, to control, extinguish or prevent the spread of the fire, cause … a vehicle to be removed or destroyed …” (s 16). Finally the “officer in charge … may cause to be removed any … vehicle … the presence of … which … in the officer’s opinion, [might] interfere with the work of any fire brigade or the exercise of any of the officer’s functions” (s 19). The critical issues here are that the action is necessary to take action to control the fire or the hazardous materials incident. There is no reference to the geographic limit, ie how close the car or other property has to be near the fire.

The law says that when a parliament grants a power under statute it’s expected to be used and there can be no liability for doing what the Parliament authorised if the damage done was necessary. So where there’s a power to knock down a wall, the owner cannot complain, nor can the owner of property that the wall falls onto unless they can show there was a way to bring the wall down that was reasonably open and would not have damaged their property (Vaughan v Webb (1902) 2 SR(NSW) 293).

To put that in the context of the photo, if that happened in NSW and there was no other way to route the hose then so be it. Alternatively the brigade could have broken into the car and moved it out of the way. But as I’ve noted, it seems to me (and I acknowledge I’m not a fire fighter) that it could have been routed over the bonnet. That would have been justified and any damage say to the paint work would be deemed to be damage done by fire (Fire Brigades Act 1989 (NSW) s 38 and therefore covered by any insurance policy the car owner holds, or else it is their own risk. And if putting the hose through the windows was done in good faith, it too would be deemed to be damage done by fire).

Fire and Rescue NSW may also seek to stand on section 78 which says:

A matter or thing done, or omitted to be done, by the Minister, the Commissioner, any member of staff of the Department, any member of a fire brigade, any member of a community fire unit or any person acting under the authority of the Commissioner does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand.

The question would be was this done in good faith? If it really was the officer in charge’s honest opinion that this was the only practicable way to route the hose to the fire then that section may apply. If however it was routed that way as extra judicial punishment for the parking offence then that would not be an act done in good faith and the section would not help. The parliament has decided that the penalty for parking in front of a fire hydrant is a maximum fine of 20 penalty units (Road Rules 2008 (NSW) r 194); a penalty unit is $110 (Crimes (Sentencing Procedure) Act 1999 (NSW) s 17) so the maximum penalty is a fine of $2200 but that only applies if the prosecution takes place in court. Where the law is enforced by the issue of a parking ticket, the fine is only $99 (Road Transport (General) Regulation 2005 (NSW) s 169 and Schedule 3). So, if the parliament has decided the penalty is a $99 ticket, it’s not up to the fire brigade to determine that the penalty should be more.

So where does that leave us? The answer is yes, fire fighters can do damage to property that isn’t directly involved in a fire or other emergency where that is genuinely believed to be necessary to effectively fight the fire or control the hazardous materials incident. There is no geographic location, ie within 500m of the fire or the like, the issue will always be was it necessary, or believed to be necessary, to fight the fire. Where damage to the property of others is a necessary consequence of that action, then the fire brigades would not be liable for the damage; the owner of the property would have to look to his or her insurers. Where the act is done just to make a point (as I suspect is the case, above) then ultimately the brigade would probably have to make good the damage.

Michael Eburn

2 April 2013