Blazing Summer: The Hot Topic of the Legal Duty of When to Warn of Natural Disaster

Tracey Peers
February 15, 2017

This summer in Australia has been one of the hottest on record (by comparison with the cold winter season experienced in Japan) with the heightened threat of bushfire ever-present.

Australia is among the most flammable countries in the world. According to NASA satellite data, there were 4,595 bushfires each week in Australia in 2013! There was a large variance in the type of fire, from small grass fires to the larger bushfires. Some fires are started naturally, through causes such as lightning strike. Sadly, some bushfires were deliberately lit. The Australian Institute of Criminology (AIC) has developed a comprehensive bushfire arson prevention handbook. For more details, go to Bushfires, like other naturally-occurring hazard events including flood and earthquake, can leave us shocked by the extent of the damage to property, and in extreme events the loss of life. Much personal trauma can be associated with such events. Even where bushfire does not result in loss of life, the destruction of homes (which people can have spent a life time acquiring) carries its own traumas.

Is there legal responsibility on landowners or land management agencies in relation to the prevention or control of bushfires? If so, what does the law say about trying to prevent such events like a bushfire which can by its nature be difficult to predict or monitor?

Historically in Australia, the legal issue about responsibility for bushfires was absorbed into the rule of Rylands v Fletcher [a famous decision by the House of Lords in England in 1868, that created precedent in the law of negligence in Australia, which was still at that time an English territory] in which a person who brings onto his land, and “collects and keeps there anything…..” that would be dangerous is strictly liable if it escapes subject to an exception where the use of the “dangerous thing” is part of the “natural use” of the land. There was then adjudications made by the Court deciding whether or not the use of fire was a “natural use” of the land and whether or not a person who failed to extinguish a fire, even a fire that had been naturally created (such as by a lightning strike), had collected, or kept or otherwise “used” the fire so as to be captured by the rule.

In 1992, the High Court of Australia declared that the rule in Rylands v Fletcher was no longer good law. Liability for the spread of fire has then been determined by the normal rules of negligence. In this way, a person who suffered financial harm due to fire needs to show that a defendant who caused the fire, or allowed it to spread, owed a legal duty to prevent or control the fire, that they failed to take reasonable steps to perform that duty and that as a result the plaintiff suffered the damage. The core question is whether the steps were reasonable. This question is considered by the circumstances and takes into account the “expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.” In a scenario where the fire was not lit by the land owner, it’s likely a Court would find that the land owner is not liable because it was reasonable to expect the land owner not to have the resources necessary to fight a fire. For example, the Court is likely to find it “reasonable” that a farmer invest, say, in a tractor rather than a fire fighting truck.

In this context, there have been no identified legal cases in Australia for compensation against land owners for the last 20 years. There have been a number of legal cases against electrical supply authorities and also against fire and land management agencies. In these cases it is claimed that the authorities had a legal duty to prevent and suppress fire. In comparison to the farmer, the agencies are specifically created and funded to prevent and fight fires. In this way, it can be argued that the electrical supply authorities and fire and land management agencies have a legal obligation to take measures to prevent and suppress fire.

The reality of course can be much more challenging. It has been repeatedly noted in findings of Enquiries in the aftermath of bushfires that fire ground communication is overwhelming, confused and invariably compromised by the impact of the fire, weather and terrain. Whilst the community has a legitimate desire to prevent tragedies (particularly involving loss of life and destruction of homes) this needs to be balanced with the practical difficulties (and in some circumstances extremely challenging) reality that the forces of nature are typically unpredictable and very difficult to control.

Bushfire management is a central feature in various government laws. A primary example is Australia’s key national environment law, the Environment Protection and Biodiversity Conservation Act. This legislation (federal government) regulates activities that are likely to have a significant impact on nationally protected matters. The intention of the law-makers is to protect unique features of Australia, such as flora or fauna, and particularly animals that are recognised as endangered species. Tension can occur between land-owners wanting to take remedial or other steps that involve the cutting down or clearing of vegetation in areas that are the habitat of endangered species. The legislation seeks to make a fair balance, and including with the consideration of bushfires and bushfire management.

Bushfire management involves 2 categories:
• Fire fighting: emergency actions taken to prevent bushfires damaging life or property.
• Fire prevention: preventative actions to obviate or reduce the risk of severity of bushfires.

National environment law generally does not restrict responses required to fight bushfires. In the case of emergency bushfire suppression and containment activities, protecting life and property is always the overriding concern.

For example, back burning, clearing of fire breaks, or emergency vehicle access in locations where threatened species are known to occur, where those activities are part of a genuine emergency response, will be permitted. This means that such activities which would otherwise be subject to compliance actions or other penalty under the national environment law will be exempt.

If there is uncertainty about whether proposed fire fighting or fire prevention activities require compliance, more information is available here

Similar questions (in the legal context, about the extent of responsibility by landowners/government/authorities) are being debated in other parts of the world. Italy was hit by 4 earthquakes in 4 hours back in January, killing 1 person and bringing terror to snow bound mountain areas still recovering from last year’s series of deadly tremors. In the aftermath of the destructive 2009 earthquake in Italy, legal case has been made based on the public seeking an expectation that geologists warn them of an impending earthquake, even though science cannot predict when a catastrophic earthquake is going to happen. In this way the Italian scientists have been put on trial over the 2009 earthquake.

Another thought in the Australian experience is that bushfires have an emotional shock, particularly when the losses are extreme. However, structural fires, which can occur in the suburbs of Australian cities due to kitchen or electrical faults, are also of concern with damaging consequences. This is to say that bushfires have the public’s attention (particularly awareness through the publication of media news stories), yet suburban house fires are just as important in terms of the community awareness and steps to minimise the occurrence of fire.

What are the requirements if I am building a house in a bushfire prone area?

In 2009, Queensland adopted the Australian Standard for the Construction of Buildings in Bushfire-prone Areas AS3959 (2009).

This standard sets out the requirements for all new buildings constructed in bushfire-prone areas.

The Australian Standard for residential buildings applies to:
• New homes or outbuildings of any type
• Rebuilding of homes or outbuildings
• Repairs to part of a building or outbuilding such as garage, shed or fireplace
• Additions to home and outbuildings within 6m of a dwelling.

In bushfire-prone areas, the standard for new homes includes:
• A concrete slab
• Exterior walls, roof, veranda or deck constructed from non-combustible materials
• Sealed wall and roof joints to guard against ember attacks
• Shutters made form aluminium (or other non-combustible material)
• Toughened glass windows
• Fire-resistant-timber door frames, with a weather strip at the base
• Metal (rather than plastic) external trimmings such as vents, guttering and downpipes.

There is no way to completely protect your home from bushfires, but you can reduce the risk by:
• Building in the safest place
• Creating barriers and buffer zones around your home
• Using an appropriate design, construction method and materials.

Read more about building in bushfire-prone areas here

In addressing future measures, helpful focus can be given to reducing risk with good planning, education, co-ordination, communication and resourcing. Yet, even with the best endeavours (and particularly with excellent support of emergency services) we’ll continue to be effected by bushfires, which have been a part of our Australian lifestyle since European settlement.

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