Do Australian Fire Brigades Owe a Common Law Duty of Care?

Michael Eburn

doi:10.15209/vulj.v3i1.26

Abstract

The law regarding the fire service’s liability for alleged negligence in the way they plan for or respond to a fire is reasonably untested. This paper reports on three cases that were decided in 2012 by the Supreme Courts of New South Wales, Tasmania and the Australian Capital Territory. It is argued that the weight of authority is that the fire brigades are established to provide fire services for the common good, not for individual benefit, and the financial burden of unfortunate operational decisions should be borne by insurers or by the uninsured. Even so, two Supreme Courts have arrived at different conclusions with respect to the question of whether or not the NSW Rural Fire Service owes a common law duty of care to those at risk from bushfire. It is therefore argued that the issue of duty of care would benefit from a determination by the High Court of Australia.

Highlights

This paper will report on three recent cases that considered whether Australian fire brigades owe a legal duty of care to those whose homes or properties are threatened by fires
This paper reports on three cases that were decided in 2012 by the Supreme Courts of New South Wales, Tasmania and the Australian Capital Territory
This issue has not been tested in the Australian appeal courts, but it did, by coincidence, arise in three Supreme Court trials, all of which were decided in 2012.1 In analysing these decisions, it will be shown that the ACT and NSW Supreme Courts have reached different conclusions on the existence of a common law duty of care owed by the NSW Rural Fire Service towards those at risk of fire

Summary

I: INTRODUCTION

This paper will report on three recent cases that considered whether Australian fire brigades owe a legal duty of care to those whose homes or properties are threatened by fires. This issue has not been tested in the Australian appeal courts, but it did, by coincidence, arise in three Supreme Court trials, all of which were decided in 2012.1 In analysing these decisions, it will be shown that the ACT and NSW Supreme Courts have reached different conclusions on the existence of a common law duty of care owed by the NSW Rural Fire Service towards those at risk of fire.

II: BACKGROUND

VI: THE RESULT

VII: CONCLUSION