Understanding fire law Potential liabilities
Dr Michael Eburn
Barrister and
Senior Fellow, ANU College of Law and
Fenner School of Environment and Society
Australian National University
A review of the Australian study
• Fire authorities do not generally owe a
duty of care to individuals.
– Gardner v Northern Territory (2004)
– Warragamba Winery v NSW (2012)
• They are protected for acts done in good
faith.
– Myer v State Fire Commission (Tas) (2012)
– West v NSW (2012)
Regional Rural Fire Chairpersons Conference
11 June 2013
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Land
owners
1867
Railway
companies
1884
Post bushfire litigation
1867-2009
Electricity
suppliers
1977
Fire and land
management
agencies
1995
1979
1997
2009
2009
Regional Rural Fire Chairpersons Conference
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Making people pay…
• The Australian authorities do not have a
track record of seeking to recover the
costs of fire fighting –
• The power exists under the Bushfires Act
1980 (NT) s 57A and the Bush Fires Act
1954 (WA) s 58. Similar to Forest and
Rural Fires Act 1997 (NZ) s 61(5) but
appears never to have been used.
Regional Rural Fire Chairpersons Conference
11 June 2013
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New Zealand – liability of fire
authorities
• One case where a fire authority has been
sued (Maceachern v Pukekohe Borough
[1965] NZLR 330).
• Statutory protection:
– Fire Service Act 1975 (NZ) s 43;
– Forest and Rural Fires Act 1977 (NZ) ss 5557.
Regional Rural Fire Chairpersons Conference
11 June 2013
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Liability of government authorities
• Crown Proceedings Act 1950 (NZ);
• North Shore City Council v AG [2012]
NZSC 49:
– Foreseeability;
– Proximity;
– Is it ‘fair just and reasonable’?
Regional Rural Fire Chairpersons Conference
11 June 2013
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Making people pay
• Forest and Rural Fires Act 1977 (NZ) s 43:
Recovery from person responsible for fire.
– Responsible means the cause in fact, not
legal responsibility.
– An extraordinary event, even if the cause of a
fire, does not create responsibility.
Tucker v NZFSC [2003] NZAR 270
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West v NZFSC [2007] NZHC 1274
• The express provisions in the Act (in
particular s 43) overrides earlier common
law rights with respect to entry to private
property.
• The defendant was liable for the
reasonable costs of the fire prevention.
Regional Rural Fire Chairpersons Conference
11 June 2013
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The rule in Rylands v Fletcher (1868)
• Remains part of NZ law.
(Easton Agriculture Ltd v Manawatu-Wanganui Regional
Council [2011] NZHC 1005; Owens Transport Ltd v
Watercare Services Ltd [2010] NZHC 473)
• Liability extends to the costs of fighting a
fire, not just the diminution in value of the
land.
(New Zealand Forest Products v O'Sullivan [1974] 2
NZLR 80).
Regional Rural Fire Chairpersons Conference
11 June 2013
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Questions? Comments?
Michael Eburn
P: +61 2 6125 6424
M: +61 409 727 054
E: michael.eburn@anu.edu.au
Regional Rural Fire Chairpersons Conference
11 June 2013
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