BURNING LEGAL ISSUES

Tony Dickson 16-9-10

In the mid 1860s John Rylands had a reservoir constructed on land he was leasing. Subsequently, water from this construction flooded mine shafts belonging to Thomas Fletcher on adjacent land. Fletcher successfully sued for damages. What has this to do with forestry and fire? As forest owners and managers we must contend with a perception that our trees create a risk of increased fire intensity and ember induced, long distance spotting. Although qualified by many variables, this perception is not without validity. The potential for a wild-fire disaster to be exacerbated by our forests, places us in a morass of legal possibilities. The most obvious of these is that if we are negligent in the management of our forests, we may be found to have breached our duty of care to our neighbours and be liable, under the law of torts, for fire damage consequent to such failure to take reasonable precautions. Provided that our negligence is not so egregious that it crosses the line into the realms of criminal negligence (in which case our Insurers may well declare our policies void through illegality), we may take some comfort from our legal indemnity cover. However, typically these do not exceed 5 or 10 million dollars, which may or may not suffice. Even without culpable negligence, if we have failed to comply with the conditions upon which our planning approvals have been granted, our insurance contracts may still possibly be voided on the grounds of illegality. Of course, if we maintain our firebreaks and our access tracks, manage our fuel loads, provide access to water and ensure that our machinery does not start a fire, we can rest easy. Or can we? Rylands v Fletcher built on ancient common laws concerning trespass and nuisance, taking them into a new legal principle called Strict Liability. Under this doctrine, a landowner could be liable for any damage or interference with the rights of others to enjoy the benefits of their property and safety of their person. This liability was not based on fault born of human frailty, but upon the test of physical realities. These realities included: The doing of, or the keeping of, something that might foreseeably escape and cause harm; i.e. something a reasonable person would perceive to be inherently dangerous. That the dangerous thing or use must be an unnatural use of the land; what ever that means. The only broad defences to such liability have been Acts of God, implicit acquiescence in the land use by the plaintiff or over-riding regulatory constraint. Although the doctrine of Rylands v Fletcher has persisted for almost a century and a half, it has not prospered because it sits astride the torts of nuisance and negligence. In Australia, recent case law has all but submerged the RvF doctrine into the mainstream of negligence law. This has been achieved by applying a sliding scale of duties of care that takes account of the intensity of risk. Thus circumstances that might have given rise to a strict liability under RvF, may have a duty of care applied that would be tantamount to a comparable level of responsibility. It would seem that the idea of particular potential danger has superseded the requirement of a non-natural land use. One of the public policy reasons for the decline of Strict Liability is the effect of a sophisticated insurance industry, which tends to resolve issues of liability at an administrative level, rather than testing them in the courts.

In the above discussion it has not been my intention to create alarm, but merely to provide an overview of some of the legal possibilities confronting our industry. Presently, it is unlikely that in the absence of negligence, a forest would be considered to create onerous responsibility of itself. However, the assessment of the degree of risk and associated duty of care is a matter of case by case determination and as the risks from fire intensify with climate change and asset density, public and legal perceptions may also be expected to change.1 The likelihood of this may increase dramatically as the insurance industry is forced to restructure in the face of predicted consequences of climatic instability. It is no accident that the insurance industry has been very active in promoting policies to reduce greenhouse gas emissions for the best part of twenty years. I was unreliably informed last year by my insurance man that several companies, in the wake of the Victorian fires, had simply ceased to write policies in rural areas. This, said my man, was likely to become a trend.

The combined frequencies of days with very high and extreme FFDI ratings are likely to increase 4-25% by 2020 and 15-70% by 2050.
Climate change impacts on fire-weather in south-east Australia. CSIRO Marine and Atmospheric Research. * Bushfire re CRC and Australian Bureau of Meteorology