Australian bushfire cases - Notes

A table of reported and unreported cases dealing with issues of liability for causing, or failing to control, bushfires.

(Return to the table)

BY MICHAEL EBURN

With the support of the Bushfire CRC, I reviewed the history of litigation seeking compensation for causing, or failing to extinguish a bushfire. The results of the study can be found in the paper:

Eburn M and Dovers S, Australian wildfire litigation, International Journal of Wildland Fire
http://www.publish.csiro.au/paper/WF11094.htm
Submitted: 7 July 2011. Accepted: 15 December 2011. Published online: 30 April 2012.

The methodology used is explained in the paper, and set out below:

The data for this review are reported and unreported judicial decisions as well as a review of the insurance claims made against the New South Wales Rural Fire Service. The cases were identified by using the search term ‘bushfire’ or ‘bush fire’ across three legal databases: Austlii,Lexis/Nexis and WestLaw, in each case limited to Australian case law The effectiveness of the search was determined by comparing the results:

· with the Australian Digest (a case law index)

· across the various databases to ensure that the same cases were brought up in each search

· with New South Wales Treasury Managed Fund claims files (to ensure that litigated cases identified in a review of claims against the Rural Fire Service were also identified in the search)

· by cross-references to cases cited in later decisions to ensure that appropriate precedent cases had been discovered.

The search identified cases concerned with legal liability for causing or allowing a fire to spread as well as claims alleging negligence in training firefighters, the right to criminal injuries compensation for fires started by arson, the jurisdiction and role of the coroner, the spread of urban fires, the interpretation of insurance policies relating to fire, liability for accidents involving fire appliances and the application of planning law to fire-prone areas. The cases were reviewed to select only those cases that were a claim for compensation for starting or failing to extinguish a bushfire.

This method of data collection has necessary and significant limitations. Prior to 1995, details of court cases were generally only available in published law reports. Cases were only selected for inclusion in the law reports if they involved an appeal on an important point of law. In some cases, pre-1995 data have been added to electronic databases and some commercial databases provide details of ‘unreported judgements’, but it is still the case that before 1995, primarily only reported decisions are available.

The decisions of trial courts were not published and there is no public record of cases that were settled out of court. Since the development of online resources, in particular the Australian Legal Information Institute in 1995 (AustLII 2010), many more judgments are available, including judgments delivered in the lower courts and interlocutory judgments (which address points of procedure). Locating these judgments shows that litigation took place, even if it was ultimately settled rather than heard in court.

The search located 87 judicial decisions, arising from 71 cases from 1868 to 2010 (see Appendix 1). Litigation arose from fires in only 48 out of the 143 years, even though, based on the assumption that bushfire frequency has remained constant over the last century, there may have been in excess of 5 million fires in that period.

This table now reports on those cases in some detail. By giving a summary of the cases it gives readers some insight into the issues being litigated and, more importantly, in the development of bushfire law. In particular it shows that there is not strict liability for the spread of fire. Individuals and governments that own property where fire starts are not liable for the spread of that fire, even if they start the fire, unless there is negligence; that is conduct that falls below the standard expected of the reasonable person in the circumstances.

The data is in several columns:

Year of fire	This is the year of the fire that led to the litigation. In cases where the year of the fire could not be determined, it is assumed that the fire occurred in the same year as the judgment. Given delays in getting to court, these fires are likely to have occurred one to several years earlier.
Case	This gives the case name, citation and the court where the matter was heard. Prior to 1995 the case citation is to formal, published law reports. You can find the full name of the law reports by looking up the citation in the Cardiff Index to Legal Abbreviations. Where year is given in square brackets (eg Havelberg v Brown [1905] SALR 1) the law reports are indexed by year, so this case appears in the South Australian Law Reports for 1905. Where the year is given in round brackets (eg Batchelor v Smith (1879) 5 VLR 176) then the law reports are indexed by volume number, so this case appears in volume 5 of the Victorian Law Reports. Since 1995 (and earlier for English cases) there is a system of medium neutral citation. These citations are relevant where cases are now online. For these cases the citation is the same regardless of where you read the case; for example Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 is the 13^th case decided by the High Court of Australia in 1994. Where the case is available on a free publicly available database, a hyperlink has been included to that source so readers can go to the actual judgement. There are also hyperlinks to legislation where that legislation is available on AustLII (http://www.austlii.edu.au). The link is to legislation ‘as made’ or to the current version of the Act if it is still in force. It should be noted that the legislation may not be the same as it was when the court had to rule on it. It may have been amended in the time between the legislation was first made and the court hearing, or it may have been changed since that time.
	The three cases highlighted in pink, Rylands v Fletcher (1868) LR 3 HL 330, Goldman v Hargrave (1966) 115 CLR 458 and Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 are the most significant legal precedents in the development of Australian bushfire law.
Facts	This is my summary of the relevant facts and issues in dispute.
Held	This is my summary of the Courts findings. In the summary I often refer to the judge by name. Legal tradition says that we write ‘Gwynne J’ but you read that as Mr Justice Gwynne. Other relevant abbreviations are P President JA Judge of Appeal CJ Chief Justice LC Lord Chancellor JJ Justices (plural) Naturally reducing a judgement, often of many pages, into a few paragraphs simplifies the reasoning and will necessarily miss many of the subtleties and issues. This material gives some idea of the issues that were resolved by the court but they cannot be relied upon to give a full understanding of the law. No-one should rely on this table, or the analysis of any particular case, to guide judgements. If it is necessary to understand the legal position governing any action or likely to apply after any event then it is necessary to seek, and obtain, competent legal advice.
Who won Plaintiff Defendant Unable to determine	As noted in the paper, it is not always possible to determine who ‘won’ the dispute: The cases reviewed included appeals on points of law where, once the legal issue was resolved, the matter was sent back to a lower court for trial. The matter may have proceeded to trial or been settled but there is no public record on whether liability for the fire was established or not. More recent cases, such as those arising from fires in 2001, 2003 and the Black Saturday fires of 2009 remain unresolved, so there is no answer as to whether or not the defendants are liable.

I hope this analysis of developing bushfire law is of interest.

If you have any questions, comments or suggestion, please send me an email.

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