Today’s correspondent says:
I know that you have previously explored questions around the responsibility for damaged caused by NSW RFS (https://emergencylaw.wordpress.com/2019/12/01/recovering-the-cost-of-damage-by-rfs/) and by Fire + Rescue NSW’s Rescue Squads (https://emergencylaw.wordpress.com/2016/12/15/who-pays-for-damage-done-by-the-rescue-squad-in-nsw/), but what about NSW SES crews?
I know that the State Emergency Service Act 1989 (NSW) s 25A states that damage caused in good faith by a “senior emergency officer”, or “a person acting on or in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency for the purposes of any policy of insurance … that covers the property.”
Which brings me to the scenario I want to explore. If a crew attending a job cause accidental damage to property not already damaged, does this section cover that?
I note that section 22A (1) deals with shutting off utilities, or moving/removing/destroying property if needed, but it is not so clear on damage which is not deliberate.
I am sure you have explored the definition of “senior emergency officer” within the scope of NSW SES before, so I will try and find that, but it is also not clear on how detailed the direction given by the Commissioner or senior emergency officer would need to be to satisfy this rule. Is working within the Commissioner’s Intent sufficient, or would a direct order be required to invoke this rule?
The Rural Fires Act 1997 section 28 seems much clearer in comparison:
“Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.”
What are your thoughts?
Should accidental damage to a property, caused by an SES member, acting in good faith, be covered by insurance held by the homeowner?
It’s true that I have made some comment on ‘the definition of “senior emergency officer” within the scope of NSW SES before’ see
- NSW SES Emergency and Senior Emergency Officers, and the police (July 10, 2014);
- NSW SES Emergency and Senior Emergency Officers, and the police – Part 2 (July 15, 2014); and
- Confusing titles of “emergency officer”, “senior emergency officer” and “emergency services officer” in NSW (November 15, 2019).
Let me then turn to the sections relevant to this question. Section 22A(1) says:
(1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following:
(a) the shutting off or disconnecting of the supply of any water, gas, liquid, solid, grain, powder or other substance in or from any main, pipeline, container or storage facility in an emergency area or any part of an emergency area,
(b) the shutting off or disconnecting of the supply of gas or electricity to any premises in an emergency area or any part of an emergency area,
(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.
One can immediately see how this can cause damage. If the electricity is cut off frozen goods perish, cut off fuel and kitchens close. And of course taking possession of an destroying things costs the owner. It must be noted, as my correspondent does, that the section is quite limited. It’s about turning off gas and other utilities and ‘taking possession of and removing’ things that pose a danger.
Section 25A(1) says:
Any damage to property caused by the exercise in good faith of functions under section 22A (1) by:
(a) the Commissioner or a senior emergency officer authorised by the Commissioner during an emergency to which Part 5 applies, or
(b) a person acting on and in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency to which Part 5 applies, is taken to be damage by the happening that constitutes the emergency (being flood, storm, tsunami or other risk, contingency or event) for the purposes of any policy of insurance against the risk, contingency or event concerning an act or omission that covers the property.
Let me then turn to the questions:
It is … not clear on how detailed the direction given by the Commissioner or senior emergency officer would need to be to satisfy this rule. Is working within the Commissioner’s Intent sufficient, or would a direct order be required to invoke this rule?
It would be my view that a direct authority would be required. To go back to s 22A, it says “
The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following…
Clearly that has to be specific. The Commissioner has to direct a senior emergency officer to take the action listed in subparagraphs (a), (b) and (c). It’s not some ‘general’ direction or authority to do whatever he or she thinks fit. Given the senior emergency officer is ‘authorised’ to take the action under s 22A a direction to another member must be a specific direction to do the things listed in s 22A.
Presumably a senior emergency officer would not direct a member of the SES to cut off the gas or electricity, that direction would be given to an plumber or electrician. The direction to remove a hazard may be given to, say Fire and Rescue NSW (given their expertise in HAZMAT) but depending on the nature of the ‘thing’ and the hazard, it may be given to an SES crew – “remove that thing out of the emergency area…”
Section 22A requires a specific authority or direction. Further this is conduct that is known will cause harm or loss to others. A right to interfere with the private rights of others will always be strictly construed. It would be my view that a direction under s 22A would have to be a specific direction. Working within the Commissioner’s Intent would not be sufficient given the need for specific authority.
If a crew attending a job cause accidental damage to property not already damaged, does this section [s 25A] cover that?
The answer to that is clearly ‘no’. Section 25A is very specific. It only applies to conduct under s 22A(1); that is a decision to disconnect gas or other utilities (s 22A(1)(a) and (b)) and taking and removing or destroying anything that causes a hazard (s 22A(1)(c)). There is no logical way to extend s 25A to other damage.
The difference between the RFS and the SES is that a fire brigade is authorised to do much more damage in the course of their duties – they can cut fences, create fire breaks, set back burns, destroy buildings etc. The insurance provision is still only applies when the firefighters are exercising a function under the Act.
Should accidental damage to a property, caused by an SES member, acting in good faith, be covered by insurance held by the homeowner?
That’s not for me to say.
Australian Emergency Law 
There was significant hazard reduction burns way out of season last year by the RFS, in the area west of Grafton in NSW. The area was tinder dry and the burns continued despite the majority of landowners voicing their concerns. Most, including myself, had already done our hazard reduction in the proper season when it was cooler. There were crews coming here from all over NSW, dozens of units everyday for months. Most didn’t even know the area, asking me and others for directions to some remote fire trail, where they were instructed to commence burning on one side of the trail. I have a video of the RFS crews lighting a fire along a 4km front, that faces onto many private properties, just because they didn’t know where they were. After a mates cabin was turned to ash, I confronted the chief while pulled up for lunch at a river here and blew the wind up him. I said how dare he burn into private property without land owners permission. He said he had no houses or cabins on his maps, so he didn’t know. I said that it’s his responsibility to liaise with the community and find this information out. All he had to do was pull in here and ask me, or one of the other farmers, if anyone lives in the proposed burn area, and we would of given accurate information.
The three local fires lit by the RFS, that the chief had told me himself that he intends to burn all the way to the river, exploded when they met on the 8th of November. The RFS were again pulled up at the river that day, and I told them that I had just seen a fire start to the south west of us, 6km from one of the fronts, with the wind blowing our way. I said that it would be here in a few hours, and instead of even attempting to control it, the whole crew jumped into their trucks and pissed off back to Grafton early, leaving us very few locals to deal with it alone. A firestorm with winds over 90km/h came rolling over the hills like napalm a few hours later, with tornadoes and flames high above the tree line coming straight towards our remote homestead.
I had already cleared about 5 acres of riverbank lantana privot and cockspur around the house the year before, and done hazard reduction burns months before, but with those winds it was racing across bare ground closely cropped out by starving cattle, and was incredibly difficult to control with our limited equipment. The house had sprinklers going on the roof half of that day in preparation, and hoses soaking the upwind side of the house. My kids and I fought it alone, it jumped 2 rivers before our eyes, the second one 100m from our house. In a sudden short wind change at about 9pm, I managed to burn back into it to stop it coming back into a neighbors cabin and then our house, and put out the grass fires.
Instead of evacuating as some others had, I chose to stay and defend our home. We could of all been killed that night, but we handled it well, saving not only our own home but 5 other houses and sheds as well, who had evacuated. I didn’t sleep at all that night. To the west of us, Wytaliba copped it first, basically the whole village burnt to the ground and several people died, and after us to the east, Nymboida suffered practically the same fate. Hundreds of homes lost in those two communities alone, and yet where we were in the middle, was right where those three front met and exploded, in worse conditions than either Wytaliba or Nymboida. The next few weeks I was on edge 24 hours ready to scramble at the sight of smoke, with several locals connected via uhf, each having our own makeshift unit ready to go without notice.
I’m expecting it to happen again. But I know for a fact I can’t rely on RFS to assist me, in fact they were the bastards that lit it to begin with. We now have our own water tanker and pumps, ready to assist the local community next season.