This question comes from Victoria:

I have tenants on a family owned farm. I have installed a fire fighting system and fire retardant distribution system which I hope will deal with even the most extreme events. It is, by definition almost, an untested system (of my own design).

I do not know what my liability will be to the operators of the system. Four men are required to run the system. The tenants have volunteered to help. The wife of one of the tenants objects to the use of fire retardants because they will introduce nitrates onto a patch of native grasses.

Do you know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? It occurs to me that I should simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon.

If I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be.

There are lots of issues raised here and in accordance with my stated policy (see https://emergencylaw.wordpress.com/about-2/) this is not legal advice on a particular case. I will raise some question that I would want answers to if I was giving legal advice and my correspondent will be advised to find a practising lawyer of his or her choice and seek specific advice.

To the questions; first Do I know if there have been earlier cases where land-owners were held responsible for the failure of a fire plan? Yes, and a case that comes to mind is Cook v R & M Reurich Holdings Pty Ltd [2004] NSWCA 268. This was an action alleging negligence by the defendant that operated a conference centre. During a quilters conference there was a fire and the operators asked those attending the conference to help remove valuables from the property and to fight the fire.   At [21] Stein AJA (with whom Beazley and Santow JA agreed) said:

Having devised an emergency plan, the respondent then failed to put it into operation. It was reasonably foreseeable that the appellant, or any of the ladies who were invited to help, could be injured while helping and in the vicinity of the fire. This is especially so when the women (including the appellant) were moving in and out of the house removing possessions and doing so at the request of Mrs Reurich, who was participating in selecting clothes and other objects to be saved from the fire, smoke and other likely damage.

And at [33]:

It was the owner’s failure to implement the emergency plan that lead directly to the appellant and other quilters attending the fire, trying to assist the respondent to fight it and to remove their possessions. If the plan had been put into operation the appellant and the quilters would not have involved themselves with the fire. The appellant’s injury occurred because of her involvement with the fire. It would not have occurred if she was away from the fire, assembled in a safe area. The appellant said that she would have obeyed any order to assemble at a safe place. There is no reason to doubt this.

That’s different to having a fire plan, implementing it but just getting a poor outcome but it is still informative for reasons I’ll discuss, below.

The nature of the tenancy.

Ownership of property is generally described as a ‘bundle’ of rights. The person who owns a block of land has many rights with respect to that land including a right to exclusive possession and a right to quiet enjoyment. You can tell other people to ‘get off’ and you should be free to enjoy your land without undue interference from others. When a property is leased the owner gives up some of the bundle of rights to the tenant. The tenant then has the right to exclusive possession so he or she can tell other people, including the landlord, to leave. They also have the right to quiet enjoyment so they can enjoy their occupation without undue interference from the landlord.

What’s not clear in this question is the true nature of the tenancy.   Do the tenants have exclusive possession of the farm or is there some joint or share farming going on? Do the tenants occupy the farm house but my correspondent is continuing to operate the farm? Is the fire fighting system intended to protect the farm house? other farm buildings? farm assets? crops and pastures? What are the terms of the lease? If the tenants are required to actively take steps to protect the property are they more there in the nature of caretakers rather than tenants? Answering these questions would be essential to reach a conclusion on the questions asked and my correspondent is advised to take all the documents to a solicitor of his or her choice and give specific instructions for specific advice.

For the sake of a general discussion I will assume that the landlord is still running a business on the farm but has leased the farm house.   I will assume the tenants have indicated that they will volunteer to help with fire fighting but are not required to do so by the terms of the lease.

Now to a second question: Should I ‘simply send the tenants to a CFA safe area as soon as the first smoke appears on the horizon?’ The tenants have the right to quiet enjoyment and exclusive possession of the property. A leasehold interest is a property interest (ie the leaseholder holds some of the bundle of rights that the owner has transferred to them). It follows that the landlord has no more authority to ‘send the tenants’ anywhere than the CFA does; and the CFA can’t require people who hold a pecuniary interest to evacuate (see Mandatory evacuations (December 26, 2015).

Finally: I employ someone to work on the fire control system will I be breaking the provisions of the various Work-Safe regulations? The answer is quite possibly.   A person conducting a business or undertaking (and note that I’m assuming ‘the landlord is still running a business on the farm but has leased the farm house’ has a duty to ensure a safe workplace. Under the model Work Health and Safety Act 2011 the concept of ‘worker’ includes a volunteer but Victoria has not adopted that legislation. In Victoria the relevant Act is the Occupational Health and Safety Act 2004 (Vic). This Act is still the old model imposing duties between employees and employers.   A volunteer is not an employee (s 5).   Even so (s 23):

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

That must include the tenants, so there is a duty to look out for them.   People who help with firefighting are being exposed to risk so the immediate questions one would ask are: are they trained? Have they been issued appropriate PPE? What is the evacuation plan should it all fail? Are there standards for the design of fire fighting equipment and have they been followed? What knowledge and experience did the designer have in making the system.

Assume a worst case scenario- a fire comes, the tenants stay and activate the fire fighting system and it fails to adequately protect them.   A key issue then will be ‘did it fail to protect because it was a poor design or was the day just an overwhelming day but the design was in fact ‘reasonable’?   Either way the questions asked above will be relevant.

As for It seems to me that I will inevitably be in breach of the requirement to provide a safe workplace, unless I can prove beforehand that my system is foolproof, which it may not be if you think you will be in breach, do something to stop that – get an engineer or someone else to inspect it and give an opinion.   But the system doesn’t have to be ‘foolproof’ only ‘reasonable in all the circumstances’.

Farmers are the sort of people who constantly design their own systems, whether they are reasonable fit for purpose is a question of fact – that is a farmer may well design a great system that works a treat. The fact they are not an engineer and didn’t read a book on the subject won’t matter. On the other hand they may design a system that is obviously flawed and that any outside observer would say ‘that’s not going to work’ or anything in between. The question of whether it complies with the requirements of the Act will depend on what happened and what could and should have been done differently (see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1).