Today’s question is about harvest alerts issued by the NSW Rural Fire Service see https://www.rfs.nsw.gov.au/plan-and-prepare/farm-fire-safety/grain-harvesting-guide.  My correspondent writes:

…

Harvest Safety Alerts when issued are pushed via the Hazards Near Me app, RFS paging systems, social media and local radio, TV and print media, this system has been working now for 3 seasons and anyone working in the grain harvesting sector for more than one season would have been exposed to this messaging at some point in NSW. 

Given that a Harvest Safety Alert issued by the NSW Rural Fire Service is a non-enforceable advisory and does not legally require landholders or contractors to cease harvesting operations, I am seeking clarification on the civil and insurance liability risks that may arise where harvesting continues during a Harvest Safety Alert and a fire subsequently ignites, causing damage to adjoining property, Crown land, or community assets.

In particular, I would appreciate your advice on the following:

  • How the “Stop, Check & Decide” principle, the Grain Harvesting and Fire Safety Guide, and prevailing weather conditions would be considered when assessing negligence or whether reasonable precautions were taken;
  • The extent to which insurers could rely on policy exclusions relating to reckless, negligent, or dangerous acts or omissions to deny cover or pursue recovery from an insured party;
  • Whether the continued operation of harvesting machinery during a declared Harvest Safety Alert could be relied upon as evidence of a failure to take reasonable precautions, notwithstanding the absence of a statutory requirement to cease operations; and
  • Under what circumstances, if any, existing infringement provisions under the Rural Fires Act 1997 (such as the use of motorised machinery without complying with safety requirements, or fire escape offences) could realistically be applied in this context.

As the RFS website says ‘Harvest Safety Alerts provide a signal to farmers that they should be taking extra precautions during harvesting operations to prevent the ignition and spread of fire due to the prevailing weather conditions’.   The Grain Harvesting Guide sets out a process to be followed.  It advises farmers to:

  1. Measure the current temperature, humidity and wind speed on your property. Average out the wind speed over 10 minutes and round down humidity readings.
  2. Using your temperature and humidity readings, find the maximum recommended wind speed in the table. For example, a temperature of 40° and 15% humidity equals 21 km per hour.
  3. If the wind speed you’ve recorded is equal to or greater than the wind speed in the table, it is recommended you do not harvest. Reassess weather conditions later.

A Harvest Safety Alert presumably is issued when the RFS thinks the conditions meet, or may meet, the criteria set out in the Guide. When an alert is issued farmers should ‘Stop harvesting operations’ and ‘Check the weather conditions’ against the Grain Harvesting Guide to determine if it is safe to keep harvesting. 

As noted, the system is not legally enforceable. It is an education tool designed to give assistance to farmers.  As the website says ‘It is [the farmer’s] responsibility to limit the ignition and prevent the spread of fires from your property. This includes fires that may start due to harvesting operations’.  The Grain Harvesting Guide and the issue of a Harvest Safety Alert are intended to assist farmers to meet those responsibilities.

Let me then turn to the questions:

  • How the “Stop, Check & Decide” principle, the Grain Harvesting and Fire Safety Guide, and prevailing weather conditions would be considered when assessing negligence or whether reasonable precautions were taken;

The Rural Fires Act 1997 (NSW) s 63(2) says:

It is the duty of the owner or occupier of land to take … any … practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land.

Further liability for the spread of fire is governed by the normal law of negligence (Burnie Port Authority v General Jones [1994] HCA 13;). Accepting that there is a duty to take steps to reduce the risk of ignition and the spread of fire, what a reasonable person would do in response to that risk is determined by (Wyong Shire Council v Shirt [1980] HCA 12, [14]). 

… a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

In modern times the relevant considerations are set out in the Civil Liability Act 2002 (NSW) s 5B(2) which says:

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)–

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

If we look at the Work Health and Safety Act 2011 (NSW) it imposes an obligation upon a PCBU to take reasonable steps to ensure the health and safety of the staff and anyone who may be affected by their work eg the staff of contracted harvesters, the neighbours etc. When deciding what is reasonably practicable a court must consider (s 18):

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about–

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Failure to meet the test in the Civil Liability Act can lead to a payment of damages. Failure to comply with the Work Health and Safety Act is a criminal offence. 

It is easy to see that likely seriousness of the harm is great.  As the RFS reports 

Crop and header fires have a significant impact on rural communities. In 2021/22, the RFS responded to 38 fires in NSW involving heavy equipment, of which 15 involved farming machinery such as tractors, harvesters and pickers. Those losses have substantial financial effects, plus additional impact of lost crops.

I suppose there is always a risk of fire but the probability of a fire growing to an uncontrolled fire increases in adverse fire conditions and the Grain Harvesting Guide gives advice on what they are. There is social utility in the activity of grain harvesting.  The recommended precaution to avoid the risk is to stop harvesting but that no doubt comes at a cost whether it’s an opportunity cost or actual cost if for example the famers are relying on contracted harvesters so may be paying for their time even if they are not harvesting and delays on one property will flow through to the next farmer whose harvesting may be delayed.  A publication such as the Grain Harvesting Guide is designed to bring to farmers’ attention the risk and how to mitigate that risk.

What follows is that in any claim for compensation, or prosecution, the plaintiff/prosecutor would want to bring in evidence of the weather conditions and the Grain Harvesting Guide to support a claim that a decision to continuing harvesting in the circumstances alleged was negligent as a reasonable person, given the advice from the experts – ie the RFS – would not have continued. Alternatively, and if the weather did not meet the threshold to cease harvesting, a farmer might rely on the Guide to show that it was a reasonable decision to keep harvesting even if a fire did actually start, escape and cause damage.  

The Grain Harvesting Guide, perhaps assisted by fire experts, could be evidence as to what a reasonable person would have known, should have considered and how they should have acted.  It would be taken into account along with other evidence that goes to the other matters listed in both the Civil Liability Act or the Work Health and Safety Act to help the court determine whether the farmer’s action were, or were not, in all the circumstances ‘reasonable’. 

  • The extent to which insurers could rely on policy exclusions relating to reckless, negligent, or dangerous acts or omissions to deny cover or pursue recovery from an insured party;

I cannot answer that question as it would depend on the particular terms of any particular insurance policy.  I note however that public liability policies only apply when an insured is found liable and they will only be liable if they have been negligent. Insurers cannot avoid liability for negligence if that is the very risk they are insuring against.  

  • Whether the continued operation of harvesting machinery during a declared Harvest Safety Alert could be relied upon as evidence of a failure to take reasonable precautions, notwithstanding the absence of a statutory requirement to cease operations; 

As noted above, the answer to this question is ‘yes’.  But it would just be evidence, it would not be conclusive.  For example a farmer may be able to point out that the conditions were only marginally over the threshold. If we assume a temperature of 25o Celsius with a relative humidity of 15% then the Guide says to stop harvesting where the average 10-minute wind speed is or exceeds 31 kph. A farmer might argue the wind speed was occasionally meeting that threshold so if one strictly applied the Guide, one would stop and start harvesting as the wind moved above and below that threshold. That there would be considerable cost in stopping harvesting for the day when there was little left to harvest and that the farmer reasonably believed that they had adequate firefighting resources to hand should a fire start. Now of course the case will only end up in a legal action if all that proves to be wrong and a damaging fire escapes, but cases have to be judged without the benefit of hindsight but asking whether the decision, when it was made, was reasonable.  So the Guide would be evidence to form part of the whole picture of whether a particular decision on a particular day in the particular circumstances, was reasonable. 

  • Under what circumstances, if any, existing infringement provisions under the Rural Fires Act 1997(such as the use of motorised machinery without complying with safety requirements, or fire escape offences) could realistically be applied in this context.

I’m not sure what is meant by ‘infringement provisions’ ie whether I’m being asked about all criminal offences under the Act, or only those that can be dealt with by a penalty notice, or what used to be an infringement notice.   Where a person is alleged to have committed an offence contrary to the following sections they may be dealt with by way of ‘penalty notice’ or, in common terms an ‘on the spot’ fine (Fines Act 1996 (NSW) Part 3 and s 3 definition of ‘penalty notice offence’, Rural Fires Act 1997 (NSW) s 131 and Rural Fires Regulation 2022 (NSW) sch 2).  The relevant sections and headings are:

Rural Fires Act 1997 (NSW)

  • 42 Repealed
  • 62G(2) Neighbourhood safer places may be signposted
  • 64 Occupiers to extinguish fires or notify fire fighting authorities
  • 66(8) [Fail to comply with] Bush fire hazard reduction notices
  • 86(1) or (1A) Notice and certain authorities required before certain fires lit
  • 87(1) Lighting fires for land clearance or fire breaks in bush fire danger period
  • 88(1) Lighting fires that are dangerous to buildings in fire districts and rural fire districts
  • 92(2) [Contravening] Conditions of Permit
  • 99(11) [Fail to comply with] Total fire ban orders
  • 99A(1) Offences–discarding lighted cigarettes etc
  • 100(1) or (2) set fire or allow fire to escape
  • 132(3) Fail to comply with direction given by police officer

Rural Fires Regulation 2022 (NSW)

  • 20 Burning to demolish buildings
  • 21(1) or (2) Burning to destroy sawmill waste material
  • 22(1) Use of steam-powered machines
  • 23(1) or (2) Use of motorised machines and implements likely to generate spark
  • 26 Lighting fires for cooking etc
  • 27(1) or (2) Burning garbage and refuse
  • 28(1) or (2) Lighting fires to produce charcoal or distill oils
  • 29 Offence to light, use or carry tobacco product

In the context of harvesting in weather contrary to the Grain Harvesting Guide, failure to comply with the Guide would not be relevant to any of those offences.  For example regulation 23(1) says:

A person must not, in connection with an agricultural, pastoral or similar land use, drive or use a motorised machine in grass, crop or stubble land unless–

(a) the machine is constructed so that heated areas will not come into contact with combustible matter, and

(b) the machine is maintained in a good and serviceable condition to prevent the outbreak of fire, and

(c) the person carries on the machine, or has nearby, prescribed fire safety equipment.

That applies all the time, it has nothing to do with the state of the weather or compliance with the Guide.

There are other offences in the Act or regulations that are not penalty notice offences. I won’t try to go through them all but, speaking generally and using the same arguments as above, continuing harvesting when the thresholds set out in the Guide, particular when they are clearly breached eg continuing to harvest on a day with a 10-minute wind speed of 60kph on a day of 40 degree temperature and a relative humidity of 10%), could be evidence of a failure to take ‘practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land’ (Rural Fires Act 1997 (NSW) s 63(2)). That section does not however create a criminal offence; it merely imposes a duty. The Act does not say what are the consequences of a breach of duty, but a breach of a statutory duty may support a claim for compensation in the same way a breach of a common law duty can lead to a claim for compensation.

Conclusion

The Grain Harvesting Guide is just that, a guide to assist farmers to meet their common law and statutory duties to minimise the risk of fire. The Guide is not a statutory instrument, and compliance is not mandated by law.  Failure to comply could be evidence to support a claim that a reasonable person would not have continued to harvest in circumstances where a defendant is alleged to have negligently caused a fire or a risk to health and safety.  It would be relevant to help a court decide whether a particular decision to harvest on a particular day in the particular circumstances, was or was not reasonable. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.