Farm advice: The cost of rural fires
The recent fires throughout New Zealand are a timely reminder of the risks of fire to our communities
The most recent being a large rural fire in the Nelson region which, at one stage, was attributed to a spark caused when farm equipment hit a stone. This leads to the question of who is liable for the cost of fighting a rural fire?
Many rural people are unaware that the legislation that came into force in mid-2017 moved the fire goalposts when responsibility changed from what was known as ‘strict liability’ to ‘criminalising risky or reckless behaviour’. It sounds minor but the implications on this change are huge.
Some background first: A new organisation, Fire and Emergency New Zealand (FENZ), created by the Fire and Emergency New Zealand Act 2017 (FENZ Act), now has the responsibility to battle fires all over New Zealand, both rurally and in urban areas. FENZ came into existence on 1 July 2017.
The new FENZ arises from a merger of the New Zealand Fire Service, the National Rural Fire Authority and Rural Fire Authorities. This merger recognises the expanded roles that firefighters now perform in addition to attending fires. Firefighters also attend vehicle accidents, assist with search and rescue missions, and attend hazardous substance incidents. FENZ is funded through a new fire levy, which is collected through insurance premiums.
The principal objectives of FENZ are to reduce the incidence of unwanted fires, the associated risk to life and property, to protect and preserve life, and to limit the damage from fire to life, property and the environment.
Major changes re liability for person responsible
A major change with FENZ is the repealing of the provision contained in the Forest and Rural Fires Act 1977 (now repealed), which established liability for the start of a fire. Section 43 of that Act stated that firefighting costs could be recovered from the person responsible. This provision provided that once the act of lighting the fire was proven, ‘strict liability’ resulted and, as a result, compensation was payable to the Fire Service for associated fire-fighting costs.
The new FENZ Act changed everything; it introduced a totally new approach as to how responsibility for starting fires is handled. There is a move away from a focus on compensation to punishing reckless or risky behaviour that results in fire.
The FENZ Act establishes a framework of serious criminal offences, infringement offences and a range of further offences that fall between the two. Direct liability for compensation has been removed from the new legislation. Now, an aggrieved party who seeks compensation must proceed with a common law, or court-based claim, for compensation.
Significant penalties
The FENZ Act has introduced a maximum penalty for serious criminal offences of up to two years’ in prison, and/or fines of up to $300,000 for an individual and $600,000 in other cases. Serious criminal offences are those which result from an accused ‘knowingly or recklessly’ through their actions causing or allowing a fire to get out of control and spread, or leaving a burning or smouldering substance in open air in such a way that increases the likelihood of harm or damage arising from the start or spread of fire.
A defence against a serious criminal offence is available to a person who, as soon as is practical, notifies FENZ of the fire situation.
This major change with the new FENZ Act moves away from a strict liability cost recovery with the then National Rural Fire Service to what is now a regime that provides for recognising and punishing the acts outlined above as reckless or risky. The stated purpose of the FENZ Act is for penalties to act as a deterrent to such behaviour. This will deal with getting FENZ’s objectives met.
To get compensation for fire damage
In order to obtain compensation if your property is damaged by fire, you will need to successfully prove to the court that the accused was either guilty through their actions of negligence, nuisance, or that the rule of ‘Rylands v Fletcher’ applies (being the escape of a hazardous thing – in this case, fire). The burden of proof is similar to a criminal offence, being that the accused is guilty ‘beyond reasonable doubt’ for the resulting loss.
This change to the legislation now forces a rethink for people who have suffered loss from fire on how they can seek compensation; new avenues have opened for civil litigation. At the same time, the FENZ Act has laid a framework for criminal convictions and fines on those whose risky behaviour results in fires.
Drones can also be a hazard in a fire
A further hazard that is now evolving with the affordability of aerial drones is the desire of operators and onlookers to have the best seat in the house. In doing so, however, during a fire, there is the risk of placing firefighters, pilots, helicopters, or planes in danger.
Using a drone during a fire-fighting emergency brings its operator the risk of criminal prosecution for endangering the life of the pilot and any aircraft responding to that emergency. Situations where firefighting helicopters are grounded due to unauthorised drone operation are becoming more commonplace.
Prosecutions have already occurred under civil aviation law for drone operators found to be causing risk to aircraft and people’s lives through their actions. In addition, the prevention of firefighting efforts could also leave the drone operator liable for a claim of damages resulting from the halt of fire-fighting activities.
Ultimately people must be responsible
Regardless of the threat of criminal charges, punitive fines, or the award of compensation for damage or loss, nothing can provide compensation for the loss of life when thoughtful planning (tools have been provided, see the fire weather website), proactive planning, and care could reduce risk significantly. This liability remains on the people responsible. Although, through the introduction of criminal and infringement offences, the bar has been raised on personal accountability for their actions when handling fire.
The FENZ Act
The Fire and Emergency New Zealand Act 2017 has introduced penalties for causing fires:
- A maximum penalty for serious criminal offences of up to two years in prison, and/or
- Fines of up to $300,000 for an individual and $600,000 in other cases.
‘Serious criminal offences’ are those which result from:
- An accused ‘knowingly or recklessly’ through their actions causing or allowing a fire to get out of control and spread, or
- Leaving a burning or smouldering substance in open air in such a way that increases the likelihood of harm or damage arising from the start or spread of fire.
Information given in this column should not be a substitute for legal advice.
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