Today’s question relates to two hazard control burns that escaped the planned burned area – one in Sutherland Shire and the other on Sydney’s North Head: see

The questions my correspondent asks are:

1. With the HRs that went ahead and were lost, would anyone be liable for any damages caused to property? (assuming there was damage to property)

2. If the organisation that ran the HR conducted the HR with poor weather conditions, could this be counted as negligence?

My personal view is that sometimes ‘shit’ happens. I don’t think organisations such as NPWS, NSW RFS or NSW Fire & Rescue want to lose control of their HRs and should not be legally penalised. But I am not a lawyer hence why I am asking the question.

It’s not about penalty, or intention

Whether agencies should be ‘legally penalised’ depends on where you stand. If you are part of the organisation or not personally involved it’s easier to say that. But if you have lost your home it’s a very different perspective. In another news story relating to a claim for compensation for a fire allegedly started by Telstra (see Michael Atkin ‘Telstra and contractor face legal action over bushfire caused by ‘probable human activity‘ ABC 7:30 (Online) 21 October 2020) one of those affected is quoted as saying ‘We are asking them to repair the land, work with us to make things right again, this is a multi-million-dollar clean-up’.  That is not a penalty, that is doing what we try to teach our kids, if you make a mistake, if you break something, say you’re sorry and do what you can to make it good.

Of course, both views are too simplistic.  In the Telstra case, Telstra is denying liability, they may take the view ‘if we break it; we fix it’ but they don’t think they caused the fire.  People who think that if you just write to a putative defendant and tell them that whatever losses you have suffered was their fault that they will pay up misunderstand that factual issues are complex and open to interpretation. Just ask anyone who has written a letter of demand over a car accident that they are sure was not their fault. 

To resolve those issues, who was ‘at fault’, what was the extent of the damage, did the alleged negligence causes the losses etc we have dispute resolution processes. You file your claim on court, everyone shares documents to understand each other’s position, attempts are made to come to a compromise and if none of that works, a judge will hear the evidence and make a ruling. Threating agencies like Telstra or the NSW Government with court action does not make them run in fear, rather they appreciate that is the appropriate forum for claims to be tested.  Legal action could be avoided if an agency like Telstra just came along, saw the scene and agreed with the plaintiff’s understanding of the facts, and cases like that settle all the time. But where the facts are disputed, courts are the right place to go.

With respect to the hazard reduction burns therefore, it is important to realise that a civil claim is not imposing a penalty. Criminal law punishes people; civil law makes orders to ‘make good’ damage caused by a lack of due care. Because of that one can insure against civil liability. The NSW government operates a large fund of money – the Self Insurance Fund – to ensure that it can meet liabilities that arise from all of its very complex operations (see NSW Self Insurance Corporation Act 2004 (NSW)).  If there is liability for these fires and if that liability belongs to a state government agency, the compensation does not come from the agencies operating budget or individual officers but from the Self Insurance Fund.  It is not a penalty.

Next, the fact that ‘organisations such as NPWS, NSW RFS or NSW Fire & Rescue [don’t] want to lose control of their HRs’ is irrelevant. People who are in car accidents don’t want to lose control of their car, but if they do, and if they collide with another person or another person’s property, they have to make up the damage. If they are smart, they are insured and their insurance company defends any claim (if there is a defence) and pays out the damages if there is not.  If you negligently hit a pedestrian your compulsory third party insurer will meet the pedestrian’s claim for medical costs etc; in serious cases that would be an amount that no-one could possibly afford.  If your conduct was so gross as to warrant criminal punishment – or if it was deliberate – then you will be punished by the criminal law.

Therefore, to answer the question we have to understand that a civil claim is not about a penalty and what the defendant intended or wanted is irrelevant. The question is whether or not the defendant exercised reasonable care in all of the circumstances.

1. … would anyone be liable for any damages caused to property?

That question we cannot answer without all the facts – the consideration that went into the burn, the resources that were available, the weather forecast, the perceived or intended benefit v the assessed risk and whether the risk assessment took into account all of the relevant factors etc.  It is impossible to say from this distance whether anyone would ‘be liable for any damages caused to property’.

What we can say however is that the claim will be easier to make where fire is deliberately as opposed to accidentally introduced to the environment. There have been many cases where electricity companies have been sued over fire allegedly caused by faulty equipment – I am aware of only one where there has been a judgment to the effect that the company was negligent (though many have settled) (see Liability for fire – a review of earlier posts (January 8, 2016) and Liability for 2014 Parkerville (WA) bushfire (April 4, 2019)). There are no cases where fire agencies have been successfully sued for failure to extinguish a fire that they did not cause.

In a paper I wrote with my ANU colleague, Associate Professor Geoff Cary entitled ‘You own the fuel, but who owns the fire?’ ((2017) 26(12) International Journal of Wildland Fire 999-1008 we argued that under current Australian law liability for fire must usually attaches to the defendant that introduces the fire, not those charged with managing the land that ultimately burns or those that are charged with responding to the fire. When setting a hazard reduction burn the agency always has the option of saying ‘no, not today’.  They can assess the weather and they can ensure that they have the resources to contain the fire. The fact that the fire ‘got away’ is prima facie evidence of a failure to take reasonable care (prima facie – on the face of it, but not conclusive proof).

In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 (discussed in the post No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)) the Court of Appeal in Western Australia found that there was no liability for damage caused to grapes by smoke from a planned hazard reduction burn. The Court (McLure P with whom Buss JA agreed; Pullin JA dissenting) held that with all the best planning the agency could not control where the smoke went, and they had done all they could to minimise the risk. McLure P said (at [85]) ‘First, this is a claim about the escape of smoke not fire. Fire is inherently and unequivocally dangerous whereas smoke is not.’  And, at [94]:

The respondents conceded (correctly in my view) that under the general law, the Department would be liable for damage caused by the escape of fire from a prescribed burn on property under its control which is attributable to the negligent exercise of its statutory powers and duties. However, we are only here concerned with smoke damage from a fire that for all intents and purposes remained within the intended boundaries of a prescribed burn.

Had the landowners grape crop been damaged by fire, rather than smoke, the outcome would have been different.

2. The weather

Certainly, one of the factors that a agency conducting a burn is the predicted weather. A person who lights a fire has a duty of care to those that may be affected by the fire (Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13). In that case the High Court of Australia (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) said (at [41] references omitted):

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity … is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”.

Fire is such a dangerous substance, and lighting a fire in bushland such a dangerous activity, it may be expected that a person who chooses to light a fire must exercise such diligence as to be practically able to guarantee the safety of others.  That does have to be balanced against other competing demands so the degree of care when lighting a back burn – that is lighting a fire in order to try and remove fuel from the path of an already burning wildfire – will be different to lighting a hazard reduction burn (see Lobsey v Care (1983) 1 MVR 1 discussed in Authority to enter private property for a hazard reduction burn (July 9, 2016) and in Michael Eburn, Emergency Law (4th ed, The Federation Press, 2013) pp. 30-31; see also Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)).

Conclusion

What follows is that we cannot say if there will be any liability for these fires. It would depend on all the circumstances, the planning and resourcing of the burn and what happened that allowed the fire to escape. Were there some circumstances that were beyond the agencies control and that could not be foreseen? These issues will have to be tested if someone sues and if the defendant thinks they did everything they reasonably could to avoid the damage. The difficulty for the defendant is that there is always something they can do to avoid the risk if the circumstances are not perfect; they can choose not to light the fire.