This is an extract from a longer email chain. I won’t reproduce it all but I infer that it refers to a fire that started in October but left a National Park and threatened private property on 12 November 2019, during a declared State of Emergency in NSW due to bushfires. My correspondent says:
The 105000 ha fire started as a lightning strike, burnt 16 houses locally. The fire that hit me travelled about 10km in a few hours, no warnings issued, just vigilant neighbours.
To have a tanker show up, look and run is not impressive. If they were ordered out, is it not criminal negligence? There were 12 houses in the path of the fire left in the same predicament, left to fend for themselves.
The answer to the question ‘If they were ordered out, is it not criminal negligence?’ is ‘no’.
For criminal negligence (R v Wells  NSWDC 169 ):
… the Crown [must] prove negligence of such a high standard that criminal punishment is appropriate. Negligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment.
The diagram below shows the difference between civil negligence and criminal negligence
First there has to be a duty of care. As has been said often on this blog the fire brigades do not owe a duty of care to individuals: see
- Protecting the local community or following the IC’s command? (September 24, 2018);
- No liability for Yarnell (Arizona, USA) fire (April 3, 2017);
- Arizona State Forestry Division not liable to homeowners for property lost in the Yarnell Fire, 2013(May 8, 2015);
- ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires(November 3, 2014);
- Queensland Fire and Rescue not liable after factory fire(October 3, 2014);
- NSW RFS village firefighting (April 9, 2014)
- Myer Stores Ltd v State Fire Commission TASSC 54 (August 24, 2012);
- Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701(July 19, 2012); and
- Michael Eburn, ‘A case study of tort liability for fire damage’(2007) 22(1) Australian Journal of Emergency Management 44-48.
If the brigade owed a duty of care to my correspondent. they would owe a duty of care to everyone and they cannot respond to everyone. Fire brigades have to make decisions about where to try to stop fires, where to allocate resources and what assets to prioritise. Those decisions may necessarily mean that some people are left to fend for themselves or some properties are lost to fire. Further the fire brigades can even make decisions to destroy properties by constructing fire breaks or setting back burns. That right can be traced back to Malverer v Spinke (1538) 73 ER 79 and is inconsistent with the notion that the brigades have a duty to protect property they are authorised to destroy.
During the recent NSW fire emergency it was said (Rachel Rasker, ‘Catastrophic’ fire danger: what you need to know’ Sydney Morning Herald (Online) November 11, 2019):
Some fires may start and spread so quickly there is little time for a warning, police say.
There are not enough fire trucks for every house. If you call for help, you may not get it.
Do not expect a firetruck, the police warn. Do not expect a knock on the door. Do not expect a phone call.
With warnings like that a person would be hard pressed to claim that he or she had a reasonable reliance that the fire service would come and protect the property such that this reliance gave rise to a duty of care.
If there is no duty of care, there cannot be criminal negligence.
Even if there is a duty of care the duty is to act reasonably which has to take into account other competing obligations (in this case the obligation to provide fire protection across the state) and the level of resources available. A single tanker may be ordered away from a location because it is required elsewhere or because it is too dangerous there for the crew. Either way that would not be evidence of negligence and certainly not evidence of criminal negligence.
My correspondent says he had ‘50000l in tanks, three fire pumps set up’ and extensive fire experience. If that was known to the RFS that may have been further reason to think it was reasonable to leave him to protect his property and divert scarce resources elsewhere.
Even if it was and houses were lost it would be necessary to show that the presence of the tanker and crew would have made a difference – almost impossible if the weather was catastrophic and there were 12 houses to protect.
The question I am answering is ‘To have a tanker show up, look and run is not impressive. If they were ordered out, is it not criminal negligence?’ The answer is ‘no, it is not criminal negligence’. It would not be negligence at all.