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With this summer’s heat feeling particularly scorching, the heightened threat of bushfire is ever-present.

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, the issue about bushfires was absorbed into the rule of Rylands v Fletcher 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 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 civil cases for compensation against land owners for the last 20 years.  There have been a number of legal case 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.

Similar questions (in the legal context) are being debated in other parts of the world.  Italy was hit by 4 earthquakes in 4 hours last Wednesday, 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 is that bushfires have an emotional shock, particularly when the losses are extreme.  However, structural fires, which can occur in Gold Coast suburbs due to kitchen or electrical faults, and with damaging consequences.

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.

This Article has been prepared by MBA Partner, Mitchell Clark.