August 11, 2016 - No Comments
So you had a fire – five years ago which is thankfully a distant memory, or is it? The legal process takes time and suddenly you are served with a summons or you are notified that your claim will be receiving attention and that a court date has been set. Your legal team needs guidance and an Expert Witness is appointed to prepare a report – five years after the event!
by Dave Dobson (firstname.lastname@example.org)
The expert report
An expert report is an unbiased, objective report used by the legal team to serve as a guide in preparing their case. Meticulous care must be taken in the preparation of this report. The facts contained in it need to be within the knowledge of the Expert or if not, clearly documented as such.
Where issues under consideration are complex and not likely to be within the experience of the court, all scientific and technical information to the case needs to be carefully summarised and presented. It is important to understand that the Expert needs to tell the court about his observations. In this respect, he will need to verify all the evidence documented. To do this he will need to go infield and establish a personal knowledge of the subject material. In addition, a high level of precision and care is required when conducting the investigation. The Expert’s work is made much easier if the landowner and people at the scene of the fire have recorded and documented events pre- and post-fire.
It often isn’t possible to include all the evidence in a report and gaps will occur. A good legal team will identify these gaps and raise questions. If you are not confident of the evidence, you could be in for a long, arduous time in the witness stand!
Preparation for the fire season
Generally, people living in rural communities are an accommodating lot but sometimes high-risk neighbours are a concern. In such cases, it is advisable to render one’s concern to writing. Such neighbours should receive a letter informing them that they pose a fire risk and explaining the risk as well as the action expected of them. Examples that would constitute extreme fire risks are high fuel loads, the absence of firebreaks, road verges either not mowed or unburnt or power lines not being maintained. A note should also be made of whether steps were taken to address the perceived risk.
It is advisable to maintain photographic records of firebreaks, fire risk areas on neighbouring and own properties as well as the fire equipment available for firefighting. The photographic evidence should be of such a nature as to render it suitable for inclusion in an Expert Report should this be required.
Membership of the local Fire Protection Association is advisable. Apart from the question of negligence in the event of a fire starting on one’s property, training can be arranged for staff and guidelines are available on the equipment requirement suitable for the size of the property.
During a fire
While conditions are likely to be stressful and chaotic during a fire it is still important to record the events as they unfold. Take photographs and keep notes of events as they occur.
• When was the first call out?
• What was the reaction time in getting to the fire?
• Who was the first to arrive at the fire?
• In terms of deployment of equipment, what equipment was present and where was it deployed?
• When was the first call made for assistance?
• When was the request made for aerial assistance?
Log these events and record who was present at the fire. Keep notes or preferably take photographs of who was present at the fire, the intensity of the fire, the spread of the fire and the fuel load.
Some useful advice obtained from an experienced forester was to keep a permanent marker in the bakkie. This man used the marker to record times and incidents on the windows of his vehicle. Once life had returned to normal, he was able to prepare a detailed and accurate report of his experiences at the fire.
Recording reaction time to a fire proved useful for a farmer who had the misfortune of being burnt by a fire originating on a large company owned estate. The company had gone to great lengths to establish and train proto teams to attack fires quickly once they started. In this particular case, however, the proto team was stationed some distance from the particular estate and it took them 20 minutes to arrive at the fire. By then the fire was out of control and a good case was presented for damages to the plaintiff’s crops.
The post-fire evidence
In more recent times, forestry companies have begun to record the cause and origin of fires. This is not generally the case and many landowners will not have the knowledge to conduct such an investigation. In any event, the information might be regarded as privileged and a report will need to be compiled using what evidence is available long after the event.
Photographic evidence is often the most valuable and will invariably provide clues that the photographer was unaware of when taking the photograph. In addition, any documented records of the origin and progress of the fire needs to be assessed, and witnesses should be contacted and interviewed.
If a Fire Protection Association (FPA) was active in the area, spotter aircraft pictures will be available, particularly if bombers were used to control the fire. Post fire pictures will also have been taken. However, in order to access this information the landowner needs to have been a member of the FPA.
Witnesses at a fire might also have taken pictures. These should be obtained and carefully filed. It will be useful if the pictures are date and time stamped as is possible with modern cameras and cell phones. GPS positioning of the photographs should also be recorded. In a case concluded recently, photographs taken by a neighbour provided vital evidence on the direction of the fire. The pleadings intimated that the fire had progressed through a particular block of trees before burning the plaintiff’s plantation. However, once the photograph had been correctly positioned and carefully interpreted it became clear that the fire in those particular trees was the result of back burning. This was confirmed during an infield investigation of the particular trees even though this was only done some years after the event. This finding had major implications for the defendant’s case!
Cause and origin of the fire
As a fire progresses it leaves visible marks on combustible and non-combustible material in its path. These marks are called fire direction indicators and examined within the general context of the fire’s behaviour will provide a useful indication of the progress of the fire. Ideally, an investigation should be done as soon as possible after a fire to record these indicators. As this is not always possible the fire investigation will often need to be conducted using whatever information is available. This will mean photographs, witness statements and a follow up infield investigation. Fire indicators, even after many years, can remain useful indicators of the fire’s origin and direction, but it is important that they are considered in a holistic manner.
In a case concluded a few years ago, a landowner had taken photographs where a fire had originated in order to record the firebreaks and the damage to his plantation. What he was unaware of was the important evidence the pictures contained relating to the origin of the fire. In this case, the origin of the fire was purported to be spontaneous combustion in sawdust. Unbeknown to the landowner, the photograph showed clearly the absence of vents or areas exhibiting outward burning from the interior of the sawdust. A strong indication that the fire had not originated from this source.
In the same case, a photograph taken by a neighbour at the time the fire started showed dense smoke coming from the general direction of the fire’s origin. This photograph was time and date stamped but the smoke did not appear to conform to what was expected in accordance with the predicted weather conditions around that time. It was only when it became clear that what was being considered as being smoke was actually steam from the mopping up operation, that the photograph made sense.
In another case, leaf freeze indicators were used to show the direction of a fire. However, this was in contrast to other indicators such as protection indicators also visible in the photographs. Freezing occurs when leaves and small stems are heated. They tend to become soft and pliable, resulting in them being easily bent in the direction of the prevailing wind or drafts created by the fire. They often remain pointed in this direction (freeze) after the fire and can serve as an indicator of the direction the fire has taken. What needs to be appreciated, however, is that while this indicator is a true reflection of the wind direction at this point, it may not always coincide with the direction of the fire.
The pleadings will also need to be dealt with and will often follow a set pattern in a fire case. This will cover negligence, fire readiness, causation, actions at the time of the fire and the damage inflicted. This is where membership of a Fire Protection Association is so important. Basic firefighting equipment requirements are provided and arrangements made to provide staff with the necessary training to combat fires. Regular Fire Danger Index (FDI) readings are relayed to members during the fire season and recommended actions under prevailing weather conditions apply.
If one is not a member of a Fire Protection Association then negligence is presumed in the event of a fire, and proving that one has not been negligent is difficult. For this reason in particular it is advisable to be a member of the local Fire Protection Association and to abide by the rules and recommendations of the Association.
Insurance is a grudge purchase and many landowners either don’t insure, or having done so, fail to appreciate what the cover provides.
In a recent instance on the KwaZulu-Natal South Coast a cane farmer thought he had enough spread of fire cover to deal with the event of him burning out a neighbouring timber concern. Timber plantations have a high capital value in the growing stock with the result that if burnt the claims end up being extremely high. For a nominal amount though, it was possible to provide enough cover for such an eventuality.
In another case, a landowner was claiming for damages to a plantation caused by an “unknown” fire (honey hunters are often blamed) that had smouldered up through a gulley, eventually getting into the plantation and causing extensive damage. A photograph was taken of the origin to support the claim. While the origin was clearly visible, what the photo also showed, unbeknown to the landowner, was that he had burned a block of grazing during the no-burn period without clearing this with the local Fire Protection Association. There had been rain the previous month and veld grass in part of the picture that was burnt prior to the cut off period (end July) had started to regenerate while the block from whence the fire originated was black and showed no new growth! While insurance might be a grudge purchase, insurance fraud is not a clever option!
The extent of the damage caused by a fire will need to be calculated. If careful records are not kept this can prove to be an arduous process as historic information is not always readily available, and when it is, the results can be inconclusive. For example, what is the cost of damage to livestock fencing that has been exposed to a wildfire? The literature is a little vague and estimates of the temperatures generated during the fire somewhat arbitrary. Fortunately, in such instances evidence of rusted fence wire years after the event could prove useful!
In addition, there will also be an element of salvage that will need to be taken into account. In an instance some years ago when a compartment of Pinus elliottii had been exposed to a hot fire it appeared to recover and the owner was pleased that he had been able to retain the trees. It was only some five years after the event when trees started blowing over that it became clear that the cambium on the leeward side of the tree that had been exposed to the hottest part of the fire had been killed off. Over the years, the damaged part of the stem had deteriorated to the point that the trees had become unstable and now blew over when exposed to wind. While these trees looked magnificent, the butt log in this case was worthless and it was too late to consider a claim! In another case where large gum trees had been exposed to a hot fire, damage was recorded to the cambium but there was a reasonable amount of salvage as the butt log was largely salvageable as saw timber.
Such are the challenges to preparing an expert testimony!
*First published in SA Forestry magazine, June 2016