Forest and Rural Fires

Lightening strikes a tree on your farm and causes a fire. What should be done?

While Farmer Freddy is in hospital, recovering from his golfing mishap, his son Jack is minding the farm. Freddy is a little concerned about this. "But really" he says to himself "how much can go wrong?"

The night before Freddy's due to be discharged lightening strikes a tree on the farm. When Jack gets up for milking he notices the tree is ablaze. "Crikey" he thinks, "it'll probably burn out, but I'd better sort that out once I've finished milking." Fortunately, the wind is blowing away from other trees nearby that are close to the neighbour's barn.

But during milking the wind changes and sparks set the next tree alight. When Jack emerges from the shed, all the trees, and the barn, are ablaze.

Jack runs inside to ring first, the rural fire brigade, and then his lawyer to check his and Freddy's liability.

Forest and Rural Fires Act 1977

If the fire occurred during a restricted or prohibited fire season, or while a fire warning was in place, or if the fire was within 1.5km of any forestry or state areas (conservation, reserve or Crown land) Jack would have a duty under the Forest and Rural Fires Act to try to extinguish the fire immediately. Failure to do so would be an offence under the Act.

However, no fire restrictions are in place, and the fire is nowhere near any of those state areas, so Jack is not liable for milking the cows before dealing with the fire.

Liability for damage

However, Farmer Freddy, as Jack's employer and landowner, may be liable for the damage to his neighbour's property.

He would likely be liable in the tort of nuisance, for failing to take reasonable and prompt action to abate the nuisance (which his employee Jack was aware of) that had arisen on his land, even though he didn't start it. Nuisance, in general, protects landowners from unreasonable interference in the use and enjoyment of their land.

The extent of Freddy's (and so Jack's) duty depends on what is reasonable for him, in his individual circumstances. In this case, Jack could clearly have done more than he did - for example, by alerting the rural fire authorities immediately.

If Jack had alerted the fire authorities immediately, and had taken reasonable steps to contain the fire, Freddy would not be liable for the rural fire brigade's costs in fighting the fire. However, because the fire has spread to other trees and to the barn, Freddy may also have to meet the fire brigade's costs in extinguishing the fire.

The fire is out, and Jack heads off to the hospital to tell Freddy. Freddy is not best pleased. "You'd better start hoping my insurance cover this, otherwise ... otherwise .... otherwise ...... I'll write you out of my will!"

For more information on this topic, refer to an earlier article on the , published 5 February 2009.


The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like further information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.
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