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Rural Fires - Who is liable?

Published: 14th July 2015

Author: Melanie Timms, Wain & Naysmith

Published in: Fine Print | Issue #67

Every year our fire service is kept busy battling blazes in rural areas which cause substantial damage to the landscape and cost hundreds of thousands of dollars to put out. So who is responsible for the costs associated with fighting the fire and any damage caused by the fire?

Liability for rural fires is covered under the Forest and Rural Fires Act 1977. Prior to this, you could be liable if you were negligent or if a fire had been deliberately lit and it escaped from your land. The Act simplified the position by imposing liability on the person who caused the fire, regardless of negligence.

If you’re responsible for a fire starting you will almost certainly be liable for the damage caused to other properties and the costs incurred in fighting the fire. In some circumstances you could also be held liable for the actions of your employees or third party contractors.

Avoiding liability is rare

You can only avoid liability in very limited circumstances – where the fire was accidental and the circumstances leading to the fire were extraordinary. In 2003, the High Court made an exception to the standard rule in the case of a truck and trailer driver who had a tyre blow out causing a roadside fire . The driver had kept his vehicle properly maintained and inspected, and was unaware that the tyres had blown or that the wheel rims were scraping on the road generating sparks, leading to a fire. The court found that the particular combination of events leading to the fire was extraordinary and a fire could not have been anticipated by the driver. The driver was therefore not liable for the damage caused by the fire.

Steps to take

The question then is, if you live in a rural area, what can you do to limit your exposure to liability?

  • Think about your property and the particular challenges that it would face in a fire. Every property has different characteristics which impact on fire risk. Examples are isolation, lack of adequate water sources for firefighting crews, condition of your farm tracks and the presence of power lines on your property. What precautions can you take to reduce those risks?
  • For employers: Keep your employees up to speed about fire risk and good fire safety practices.
  • Check your insurance policies carefully. Make sure your policy covers the loss of your own property, loss to third parties and cover for fire suppression costs.
  • Ensure that you understand your obligations and any exclusions or limits that may apply to your policy. Check your policy limits, including the level of cover for fire suppression costs under the legislation. The costs of putting out a rural fire can be considerable. A large fire in Marlborough earlier this year cost an estimated $1.4 million in firefighting costs.
  • Think about the type of activity being undertaken on adjoining land as well. If there’s adjoining forestry land you may want to extend your limits.
  • Check that your insurance covers all activities being carried out on your property. A Nelson couple had built three small tourist cabins on their lifestyle block . Ashes disposed of from one of the cabins by the couple started a fire causing damage of more than $1 million. As the couple had chosen not to insure the tourist business because of the cost, they could not rely on their general lifestyle policy to cover the majority of their costs. And as they hadn’t separated the ownership of the property from the operation of the tourism business, the property was exposed to any legal challenges.
  • Be aware that your insurance policy will have a reasonable care condition requiring you to take reasonable steps to minimise the risk of fire. A breach of this condition may result in you not being covered. When it’s a restricted or prohibited fire season there will be a greater degree of care required from you in carrying out activities in high risk areas.

It’s impossible to avoid the risk of a fire altogether. However, if you take steps now you can reduce the risk and ensure that if there is a fire you are covered for all losses.

The Forest and Rural Fires Act 1977 is currently under legislative review with the expectation that new legislation will be passed in the next couple of years. It’s not expected however that the provisions relating to liability for fires will change to any great degree.

Tucker v New Zealand Fire Service Commissioner [2003] NZAR 270

Nelson Forests Limited v Three Tuis Limited [2013] NZHC 856 and Garnett v Tower Insurance Limited [2011] NZCA 576

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