A question from a member of the NSW RFS:

I have a question about duty of care provoked by media reports of litigation about the Hazelwood Mine fire. Without asking you to comment on prospective or actual litigation, what duty of care does a land holder owe to the wider community? How might that duty of care change or be considered by a court if the fire had been deliberately lit by a third party or spread onto the property (eg Mine) from a neighbouring property or public land?

It’s true I can’t speak of that specific case, partly because it may be before the courts and the pending inquiry, mostly because I don’t have the necessary facts; but I can speak in general terms.

The historical rule for the obligation upon land owners with respect to ‘unnatural’ hazards was known as the rule in Rylands v Fletcher (unsurprisingly named after the decision in Rylands v Fletcher [1868] LR 3 HL 330, which was a case about water rather than fire, but the principle was applied to fire and many other hazards). That case said that a person who brings onto their, and “collects and keeps there anything…” that would be dangerous if it escapes is liable if it does escape; without regard to the care taken; subject to an exception where it is part of the ‘natural use’ of the land.

Where the rule did apply the landowner was liable to make good damage caused by the escape of the dangerous thing without any question of what steps they took to take care. There are two clear issues here; one is that the landowner had to ‘collect and keep’ the thing and the second was that the rule did not apply where it was a natural use of the land.

In the Australian context where a fire is started by some one other than the landowner, so a fire caused by lightning, the land owner did not ‘collect and keep’ the fire; it was not their fire, so the rule did not apply. Secondly, in the context of colonial Australia, fire was used to clear land and also for the necessity of camping in remote areas. Of the use of the fire was considered a ‘natural’ use so that again, the rule did not apply (see Batchelor v Smith (1879) 5 VLR 176; Goldman v Hargrave (1966) 115 CLR 458).

The rule in Rylands v Fletcher, despite its apparent simplicity became subject to so many exceptions that in 1994 the High Court declared it was no longer part of the law and that the relevant tests were the normal tests of negligence (Burnie Port Authority v General Jones (1994) 179 CLR 520). The question then is does the landowner owe a duty to their neighbours and if so what does that duty require. The issue of ‘duty’ will be determined by factors such as the cause of the fire; the ability to control it etc. Where a person ‘brings’ on a fire they will have a duty to ensure that appropriate care is taken that it does not spread. If you light a fire (or bring another hazard onto your property) then your obligation to stop it spreading may be almost absolute, but if you don’t bring it there then the obligation will vary in the circumstances. In Hargrave v Goldman (1963) 110 CLR 40, Windeyer J (on the High Court of Australia) said:

In my opinion a man has a duty to exercise reasonable care when there is a fire upon his land (although not started or continued by him or for him), of which he knows or ought to know, if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished.

But if one has a duty, what does one have to do to meet the standard of care required? This is a question to be decided in all the circumstances. In Goldman v Hargrave (1966) 115 CLR 458 Lord Wilberforce, speaking on behalf of the UK House of Lords (in the days when one could appeal from the High Court to the House of Lords, something that you cannot now do) said:

… the standard ought to be required of the occupiers what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstances should, have done more.

In Burnie Port Authority v General Jones (1994) 179 CLR 520), Mason CJ, Deane, Dawson, Toohey And Gaudron JJ said (at [41]; 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’. The ultimate conclusion however is that the oft quoted phrase ‘if you own the fuel, you own the fire’ (see Phil Cheney ‘“The Green Inferno” (The Politics of Bushfires and Conservation)’ (The Stretton Group, Melbourne, 25th November, 2004); Tim Flannery, ‘Own the fuel, own the fire’, Mail & Guardian, 18 February 2009; Tim Marshall, ‘Working together to manage the risks’, South Australian Country Hour (ABC Rural), 18 October 2010; Roger Underwood, ‘Only Canberra can cool these fires’ Quadrant Online, 22 October 2013) is not reflected in the law.

Further references

First, I have given a lecture on this subject to the course, taught at the ANU’s Fenner School of Environment and Society on “Fire and the Environment”, and you can access my powerpoints from that lecture, here.

Second, I have put together a table of all the relevant cases on fire law and how the common law concept of a landowner’s duty have evolved from 1867-2009 and that table can be accessed via the Bushfire CRC web page; here.