Spread of fire liability

October 31, 2010

When fire spreads from one property to another, who is liable for the damages that result? Safire Insurance Company Limited's Ruth Bezuidenhout and Hay & Scott attorneys provide answers to some frequently asked questions, which help to clarify the legal principles relating to spread of fire claims.

Burning SA forest

Q: Are you as a landowner automatically liable for damage caused by a fire that spreads from your property to a neighbouring property?
A: No, for one to be held accountable for such damage certain legal requirements need to be met. In this regard it is always best to seek legal advice before conceding liability.

Q: Should one admit liability for damage caused by a fire?
A: Whilst one may feel the social desire to apologise or accept liability for damage suffered as a result of a fire, there are good reasons for not doing so, here are a few:

The rationale underpinning this approach, is that people frequently make spontaneous concessions and admissions during or shortly after the incident. However, in the case of fires, it is often only well after the event that a clear understanding of what actually happened, and how it happened, emerges.

Such spontaneous concessions or admissions are often based upon erroneous or incomplete factual information.

Most insurance policies have a clause in their contracts which expressly prohibit the insured from making any concessions or admitting any liability in respect of a potential claim. It is further important that you never admit any liability, as to do so would usually constitute a breach of the terms of the insurance policy which may in turn affect the cover afforded under such policy.

The making of such concessions or admissions can result in prejudice to either yourself or your insurer in defending any action instituted against you, or in attempting to recover any loss from another party.

Q: When is one liable for a fire which spreads to a neighbouring property?
A: Liability is dependent upon numerous factors, but the most important aspect that needs to be present in order to render you liable under these circumstances is negligence.

Negligence is the legal concept which is used to assess the civil culpability of conduct or actions. Negligence is determined by measuring the actual conduct engaged in against the notional standard of what a 'reasonable man' in the same circumstance has or would have done. Should it transpire from such an enquiry that the actual conduct falls short of what would be expected from a 'reasonable person', such conduct is then deemed to be 'negligent'.
Common examples of such negligence would be the following:

  • commencing with a controlled burn when the weather conditions are dangerous;
  • failing to have adequate and properly maintained fire-fighting equipment at the site of a controlled burn;
  • failing to have sufficient properly trained personnel present at the time of conducting a controlled burn;
  • failing to have notified your neighbours of the fact that you are conducting a controlled burn;
  • failing to have properly prepared your boundary fire-breaks within the period specified in the Act.

Q: When does the presumption of negligence come into operation?
A: If you fall within an area where there is an established Fire Protection Association, the Act amends the common law position by reversing the onus regarding the issue of negligence. It achieves this by stating that if you are not a member of the local Fire Protection Association and a fire spreads from your property to an adjoining property, then you will, until the contrary is proven, be presumed to have been negligent.

Q: What should one do when a fire spreads to a neighbouring property?
A: The Act requires that a person who sees a fire should:

  • take all reasonable steps to inform the local Fire Protection Officer or any other responsible authority of its locality;
  • take all reasonable steps to inform any adjoining landowners of its locality;
  • do all things within his power to prevent the spread of the fire, including making use of all available resources;
  • comply with any order issued by a Fire Protection Officer.

Q: What is 'contributory negligence'?
A: Contributory negligence is the legal term given to the circumstance where the negligent party ('the wrongdoer') is entitled to reduce his liability to the other party ('the injured party') on the basis that the injured party, by his own negligence, also contributed towards his own loss. An example of this would be where a fire spreads from the wrongdoer's property to the injured party's property, but the injured party fails to take reasonable steps to control and extinguish the fire and prevent the loss. In such event, liability for any damages would be split or apportioned between the parties.

Conclusion
It is important to always seek advice, either from your attorney or (if you are insured) from your insurer, when faced with a potential claim.

Published in October 2010

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