Today’s correspondent reports on a conversation within the New South Wales Rural Fire Service

A discussion arose today at lunch regarding RFS’ responsibility for fires on private property….

The fire being discussed was a hay shed fire which was in close proximity to silos.

It was suggested that the RFS could have left scene sooner than they did i.e. when the fire was ‘contained’ to the shed and at no risk of spreading further, it could have been handed back to the landholder to manage (manage the cooling of nearby silos and monitoring the fire until out).

The FCO stated that despite leaving scene, the RFS would remain responsible for the fire as it was technically still ‘going’ and was in Rural Fire District, and therefore RFS should maintain a presence until the fire was fully extinguished – which could be up to a week.

He was concerned that if the fire had managed somehow to spread, or a civilian who was left with the fire was injured, that he & the RFS would be liable?

My question is – when is the RFS ‘liable’ or ‘responsible’ and when does that end? Or is this not as black and white as it sounds?

That’s more a technical question than a legal question, but we’ll see what the law can add.  First it is a function of the RFS ‘to provide rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)(a)).   Section 9(4) says:

“rural fire services” includes the following:

(a) services for the prevention, mitigation and suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

(c) the provision of services referred to in paragraphs (a)-(b1) throughout the State in accordance with Part 3,

(d) any other service prescribed by the regulations.

Extinguishing the fire and taking steps to prevent it spreading would all be part of rural fire services.

The Act does not however say what level of service the RFS has to provide.  The RFS could suppress more fires with more assets, it could mitigate the risk of fires by mowing everyone’s lawn and installing sprinklers, but it doesn’t do that.  So what level of service is provided has to be determined by the resources available and the demands on them.

The ultimate question is whether any decision is ‘reasonable in all the circumstances’ and further whether it is made ‘in good faith for the purpose of executing any provision (other than section 33) of [the Rural Fires Act] or any other Act’ (Rural Fires Act 1997 (NSW) s 128).

In Gardner v NT [2004] NTCA 14 a Northern Territory Bush Fire Brigade inspected a property to observe a bush fire.  As he left the property, the fire Captain advised the owner to keep an eye on the fire and to call for fire brigade assistance if his property was threatened. The owner did not keep an eye on the property and his home was destroyed.  He sued the Northern Territory arguing that it was the Territory’s duty (through its fire fighters) to maintain a watch on the fire.  In article I wrote about that case (Michael Eburn, ‘A case study of tort liability for fire damage’ The Australian Journal of Emergency Management, Vol. 22 No. 1, February 2007, pp. 44-48) I said (at p. 47):

With respect to monitoring the fire the court held that it was reasonable for the Fire Brigade to rely on Mr Gardner to monitor the fire and to contact the Brigade if and when he became aware that the fire was in fact spreading onto his land.

… given the context of the fire, it was reasonable to rely on the home owner to take responsibility for the monitoring of the progress of the fire. It was not necessary for the Brigade to deploy scarce resources to monitor a fire that, at midday on the 10th September, was believed not to be a threat to the home.

The fact that that assessment was wrong did not mean that there was negligence. In deciding what the reasonable Fire Brigade would do in the circumstances the Chief Justice said that:

“… particular regard must be had to the remoteness of the locality, the community practice and expectations in such situations, the appellant’s experience, the duties required of the resources available to the Crown and the limited nature of those resources, namely, the volunteer Fire Brigade”.

The combination of circumstances meant it was reasonable to rely on Gardner to monitor the spread of the fire..

The same principles may be applied in the discussion at hand. If an assessment of all the circumstances there is a conclusion that the fire is not a risk and that it is within the resources of the property owner to manage it then why not leave it to them? One might consider different considerations where the fire is on a large property with full time staff and resources compared to a hobby farm on the edge of the urban interface with a part-time absentee landlord/farmer.

Whether there would be any liability of the fire escaped would depend on whether the decision was reasonable in all the circumstances (which would also take into account RFS policy and doctrine, not discussed here).  There is however no reason to think that it may well be a reasonable decision.

The FCO will not be liable.  If there is any liability it will fall to the RFS.

For related discussions see: