1. Dr Michael Eburn Barrister and Senior Fellow, ANU College of Law and Fenner School of Environment and Society Australian National University Understanding fire law - Potential liabilities

2. 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) 11 June 2013Regional Rural Fire Chairpersons Conference2

3. 1867 1995 1997 2009 1884 1979 1977 2009 Land owners Railway companies Electricity suppliers Fire and land management agencies Post bushfire litigation 1867-2009 11 June 2013Regional Rural Fire Chairpersons Conference3

4. 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. 11 June 2013Regional Rural Fire Chairpersons Conference4

5. 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 55- 57. 11 June 2013Regional Rural Fire Chairpersons Conference5

6. 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’? 11 June 2013Regional Rural Fire Chairpersons Conference6

7. 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 11 June 2013Regional Rural Fire Chairpersons Conference7

8. 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. 11 June 2013Regional Rural Fire Chairpersons Conference8

9. 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). 11 June 2013Regional Rural Fire Chairpersons Conference9

10. Questions? Comments? Michael Eburn P: +61 2 6125 6424 M: +61 409 727 054 E: michael.eburn@anu.edu.au 11 June 2013Regional Rural Fire Chairpersons Conference10