Who is liable for the damage?
The recent fires in the Port Hills above Christchurch are a timely reminder of the risks of fire to our communities. Every year the New Zealand Fire Service and National Rural Fire Authority battle fires all over New Zealand, which begs the question – Who pays for this?
You pay if you start the fire. Liability for rural fires is found in the Forest and Rural Fires Act 1977. Section 43 states that the National Rural Fire Authority or the New Zealand Fire Service Commission can recover costs from the person responsible. If you are the landowner and did not start the fire, you also may be able to recover damages from the person who did.
What this means is that if you started the fire, and don’t control that fire and it escapes your control causing damage to property or people, then you are liable. Because you started the fire it’s not necessary to prove you were negligent or didn’t exercise care while dealing with the fire. At this point you will be hoping your insurance policy is fully up-to-date.
‘Property’ within the Act has a broad meaning. The High Court held in the Hollamby case that the exposure of land to erosion as a result of the vegetation being burnt off can create damage to property, which can lead to the award of damages.
Where a person deliberately lights a fire that person has a duty to ensure that the fire remains under their control and does not ‘escape’ their control and cause damage.
Even if the fire is accidentally started liability remains. However, it may be possible to avoid liability in some circumstances, for example, in the case where a tyre blew out with the rim causing sparks which started a fire, the High Court held that the driver wasn’t liable. The judge held that the New Zealand Fire Service Commission had to show that the driver had been able to anticipate the fire and in this driver’s case he could not, because in all the circumstances of the situation he could not have anticipated that a roadside fire could eventuate from a blown-out tyre of which the driver was unaware. The circumstances referred to in this judgment make it quite a unique situation.
The amount that may be recovered under the Act is not limited. If the liable person can prove that a Rural Fire Officer’s actions in fighting the fire were excessive then the amount recovered may be limited. Alternately the National Rural Fire Authority may, in circumstances under other parts of the Forest and Rural Fires Act 1977, elect to levy land owners; this may also limit the amount recovered against the person who started the fire.
Fire being a valid farming tool
Fire is often used to control noxious weeds such as gorse. It’s a legitimate farming tool but, regardless of that, the issue of strict liability remains.
Insurance is an important factor in being prepared if you want to use fire either in controlled burn-offs or disposing of farm waste. The National Rural Fire Authority (www.nrfa.org.nz) has information regarding insurance. In essence, however, using fire as a farming tool you need to:
- Ensure you have planned adequately for fire use
- Minimise the risk of a fire accidently starting when extreme fire periods are in place
- Include fire protection for your land and home in your business plan, and
- Discuss your insurance needs with your insurance agent.
Health and safety
Finally, fire as a farming tool is a health and safety issue under the Health and Safety at Work Act 2015. A fire which gets rapidly out of control can hurt your employees or they could die.
You are obliged to take all practicable steps to ensure your employees are safe at work. In the Northburn case , a controlled burn off went badly and their employee was ‘engulfed by a fire front’ and was killed. The court awarded the deceased’s family $100,000 for emotional harm and a further $7,000 for consequential financial losses.
Regardless of the penalties awarded, nothing can compensate for the loss of someone’s life when thoughtful planning and proactive management of workplace health and safety can reduce risks significantly.
Treating fire with respect
As a farm management tool fire has a long-established use in New Zealand but it needs to be kept under your control; if it’s not, you are likely to be found liable for the damage it causes. Worse still someone may lose their life. To prevent such a disaster, fire needs to be treated with respect and careful planning given to its use.
* Worksafe New Zealand v Northburn Limited  NZDC 11310 (also CRI-2015-002-000070)