This is the first post after my break – and thank you for the well-wishes.  Today I’m asked a question from a volunteer fire fighter with the ACT RFS who:

…  had a bit of a thought about something I did while on deployment to the Blue Mountains fires in October last year and thought it might be interesting to get your opinion …

We had been burning off a trail when a wind change caused the fire to jump the trail and head back towards town, we were quickly redeployed to protect property. This coincided with an emergency alert being issued and a text message going out to the affected area recommending evacuation, the police were door knocking as we arrived to recommend evacuation.

I briefly spoke with one of the property owners and he left the house open for us as he left, so that we would be able to better defend the area.

In the end the fire did not arrive before we were relieved from the fire ground and so I wondered, do I leave the door open for the next crew? (There was no hand over so I was unable to tell the next crew about the situation) or do I lock up? (What I did in the end).

Essentially the question boils down to, did I have an obligation to secure the property? The options I saw facing me being 1 – lock up and if there was a need to get into the property later the next crew would be able to use force to access, though this could potentially increase the damage. 2 – Don’t lock up and potentially leave the house exposed to burglary etc.

This could apply in other settings such as – if I cut a fence to access a paddock do I have some obligation in relation to securing it to prevent possible stock loss? Or does my legal permission to use force (Emergencies Act 2004 (ACT) s 34 (1)(a) – delegated to all RFS members) to enter onto property and/or general exemption from liability mean that I do not have an obligation in that regard?

In reality I believe I, and other fire fighters, would take a pragmatic approach, securing property where practical given other competing priorities but I would be interested in your thoughts.

Interestingly the answer here involves both the Emergencies Act 2004 (ACT) and the Rural Fires Act 1997 (NSW) as well as the common law.   Identifying how the two Acts work together is not easy (see my earlier post, ‘Interstate deployment’ (29 January 2014).

As noted the ‘chief officer of an [ACT] emergency service may, for the protection or preservation of life, property or the environment— (a) with any necessary assistance and force, enter land’ (s 34(1)(a)).  (‘Land’ includes ‘all things growing on or affixed to the soil, including buildings…’ (Encyclopaedic Australian Legal Dictionary, definition of ‘land’).  The power to enter land includes a power to enter a building that is permanently connected to the land, but not, say, a caravan.   The exercise of this power must be done in accordance with the Commissioner’s Guidelines, if any (s 34(2)).

The Chief Officer of the ACT Rural Fire Service, a member of the Rural Fire Service who has been delegated the Chief officers’ authority (s 39) or a member of the RFS who is acting to protect life or property or to control or extinguish the fire, and who acts in accordance with the commissioner’s guidelines or where it is not practicable to obtain a direction or authority from the Chief Officer (s 68(7)) may pull down a fence but if they do so they must, ‘as soon as practicable— (a) temporarily repair the fence; and (b) tell the owner of the land about the temporary repair’ (s 68(6)).

When operating in NSW, the ACT Rural Fire Service remains governed by the ACT Act, but its operations will also be governed by the NSW Act. The Rural Fires Act 1997 (NSW) says that a member of an interstate fire brigade is to obey the orders of the ‘officer in charge at the fire’ and to place their equipment at that officer’s disposal.  If there is no ‘officer in charge at the fire’ then the officer in charge of the interstate brigade is ‘the officer in charge’ and may exercise any of the powers given to a NSW officer (Rural Fires Act 1997 (NSW) s 43).

The NSW Act provides that ‘An officer of a rural fire brigade … may enter any premises for the purpose of exercising any function … under this Act’ (s 23) but only if they have given authority by the Commissioner either generally or in a particular case (s 32).  A member of an interstate brigade (ie the ACT RFS) can therefore enter premises in NSW if acting under the direction of an ‘officer in charge’ who has been authorised to exercise the power.  That officer in charge may be NSW officer or, by virtue of s 43, the officer in charge of the ACT brigade where there is no NSW officer in charge at the fire but the officer must be authorised to make that decision; hopefully that authority has been given as part of the agreement for the interstate deployment.  A ‘person authorised to enter premises must do as little damage as possible’ (s 30). Further an officer may ‘pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land’ (s 25(1)(a)).

You don’t need authority to enter land where you have the occupier’s permission to enter the land as must be the case here where, we are told, ‘the property owners … left the house open for us as he left, so that we would be able to better defend the area.

The question then is what is the obligation to secure the property?

I would suggest that the answer to this question requires consideration of the problematic common law issue of’ what is ‘reasonable’ in the circumstances?’  If you are leaving and going home and no-one is coming to relieve you as the fire has moved on how could it be reasonable not to make the effort to lock the doors and windows?  On the other hand if another crew is expected at any minute, and there is some clear operational benefit in leaving the premises open that may be reasonable.   If you are called away for an urgent response leaving the premises un-secured may also be reasonable.

As for the general protection from liability, the ACT Act says:

“An official is not personally liable for anything done or omitted to be done honestly and without recklessness — (a) in the exercise of a function under this Act; or (b) in the reasonable belief that the conduct was in the exercise of a function under this Act.”

Official includes a member of the emergency services. (Emergencies Act 2004 (ACT) s 198).

If one honestly and without recklessness believed it was necessary to leave the premises unsecured in order to facilitate ongoing fire fighting operations then that may apply.  If one just leaves and for no good reason fails to take any step to secure the property, I can’t see how that would be acting ‘honestly … in the exercise of a function under this Act…’.

The NSW Act says ‘A matter or thing done or omitted to be done … in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand’.   Again it would turn on the facts, but simply leaving the premises unsecured as it’s time to move on is hardly acting ‘in good faith for the purpose of executing any provision’ of the Rural Fires Act.

Exactly which Act applies is difficult to say and would depend on the facts and on the allegations raised but I don’t think the outcome would be different in either case.  (I would suggest however that the relevant Act is the Act for the state in which you are operating given the legislative limits of the Parliament. When on deployment interstate you are acting on behalf of the interstate agency and by virtue of the interstate Act (in this case the Rural Fires Act 1997 (NSW) s 43, so I think on balance the NSW Act is the relevant one.)

So was there an obligation to secure the premises?  Not under the Act but under common law there may be an argument that if it was not reasonable to secure the premises and as a result the premises were damaged, that should lead to the payment of compensation but that would depend on what damage there was.  If the premises burned down because embers entered the unsecured door that may be evidence of negligence by the firefighters.  If however, a thief entered the unsecured premises and stole items that may not. The thief is a criminal and there is generally speaking no duty to protect people from the criminal conduct of third parties (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61).

All of that is very complex so let’s apply a common sense test; the occupier has left the premises unsecured to facilitate fire fighting operations.  The issue of statutory authority is not important, as there is the owner’s consent.  The owner is trusting the fire fighters to act appropriately, they are being left effectively ‘in charge’ of the property.  The fire ‘did not arrive before we were relieved from the fire ground’ and there is no handover.  The question of whether to secure the premises is just a question of what is ‘reasonable’.  As noted there were two options – “1 – lock up and if there was a need to get into the property later the next crew would be able to use force to access, though this could potentially increase the damage. 2 – Don’t lock up and potentially leave the house exposed to burglary etc.”  What was actually likely?  To answer that one would need to take into account where’s the fire? Is there going to be another crew? Will they actually need to access the house and why?  I can’t answer those questions in any definitive way but what I can say is if you don’t, or didn’t, think about them the decision to leave the premises, either secured or unsecured, would not be a good faith exercise of one’s functions.   If you did think about those things and decided, on balance the best option was either (1) or (2) then you could rely on the immunity provisions if, later, the property suffers damage either by fire, theft or wildlife seeking refuge.

As for cutting fences, certainly as an ACT firefighter and if working in the ACT there is a clear obligation to effect a temporary repair and notify the landowner of the repair.  There is no similar provision in NSW.