Cameron advises clients on a variety of civil litigation and insurance related disputes. Cameron has had 25 years professional experience and has acted on some of the highest profile and high value insurance litigation in Western Australia. He works closely with LGIS to advise and represent members.
Congratulations to the Shire of Yilgarn who were award their Tier 3 Silver diligence in Safety Award. James Sheridan, CEO LGIS and Christ Gilmour, Risk Specialist – Regional visited the
Shire on Tuesday 26 February to meet the Yilgarn team and present the award.
In February this year the Australian Tax Office (ATO) made a private ruling on the following question: ‘Is the income compensation component of the redemption settlement payable under Workers Compensation and Injury Management Act 2023 (WA) included in your assessable income under section 6-5 of the Income Tax Assessment Act 1997 (Cth)?’ The ATO’s very short answer was ‘Yes’.
It’s a question very few people want to ask but given the current cyber risk landscape shows no signs of slowing, it’s likely an inevitable question for organisations, including local governments.
What are local government’s obligations under section 33 of the Bush Fires Act 1954 (WA)?
A local government’s responsibilities concerning the mitigation of bush fire risks is a complicated question.
Fortunately for members it’s a matter that has been carefully considered by a couple of inquires; their findings are in the following reports:
These inquiries discuss a local government’s remedial and responsive obligations. Ultimately, they recognised that members are in a unique position, as their responsibilities arise out of their position as:
One of the sources of a local government’s powers with respect to mitigation works for bushfire risks is found in section 33 (s33) of the Bushfires Act 1954 (WA) (the Act). It empowers a local government to (amongst other matters) issue compulsive notices to landowners or occupiers – to carry out works to create fire breaks. If the landowner or occupier fails to comply with such a notice:
Fire breaks, and other mechanisms designed to reduce the risk of the spread of fires between properties was the subject of particular attention in the 2009 Victorian Bushfires Royal Commission’s final report. These finding’s recognised that local government’s fuel load management, and efforts to restrict the ability of a fire to jump between properties, are very important community obligations in response to the risk of bushfires.
Fundamentally, local governments have clear roles and responsibilities in terms of the discharge of these responsibilities.
In the unfortunate event of a bushfire, after the initial efforts to bring the fire under control have come to an end, the two initial questions are always:
In the Victorian Royal Commission, there was an examination into road reserves and the existence and effectiveness of fire breaks, and the ability of the fire to spread between areas. How the local government manages its land, and how it exercises its section 33 powers (among other statutory powers and duties), is a key issue to be examined when there is an investigation.
If a local government doesn’t exercise a power under section 33 of the Act, they may be liable. The reasonableness test is used. For example, after examining the facts, a judge may find that a reasonable council in the same circumstances would enforce s33 for the purposes of reducing a danger (fuel load management for example) and thus where a local government did not act would be liable in damages.
Importantly, the non-exercise of a power under s33 would not in my view be protected by section 37, Fire and Emergency Services Act 1998 (WA).
What does 'reasonable' mean in law?
The law of negligence defines the standard as the level of care that a ‘reasonable person’ would exercise in
a similar situation.
For LGIS members the question is ‘What would a reasonable local government, with similar information and resources do in this situation? With consideration of the risks or potential consequences of not acting.
Where members document and show a process which demonstrates reasonable care has been taken liability defences are strengthened. Importantly doing ‘nothing’ is
still a decision and the rationale and process behind the action should be documented and guided by a process.
It is therefore critical that a local government has policies and procedures with respect to the exercise of its various obligations and duties. In the absence of those procedures (whether documented or established), it can be very difficult to either understand or defend a local government in the face of civil suits or statutory inquires.
Section 37 of the Fire and Emergency Services Act applies to the performance or purported of a function under an emergency services Act. If the conduct is in purported performance of a function, then the protection under section 37 remains.
Define: Purported performance
From a legal perspective ‘purported performance’ means in pursuance (or intended pursuance) of the responsibilities or powers of the local authority. It also assumes that any actions are performed in good faith with regard to fulfilling the authorities’ responsibilities or powers.
However, for conduct that cannot be considered to be in purported performance of a power under section 33, then the brigade (and the local government) will not be entitled to any protection and the conduct outside of section 33 will likely be unlawful, and the brigade will likely be responsible for any losses arising from such works as well as potentially damages arising from trespass or unlawful conduct under the colour of authority.
A local government can engage a contractor to carry out the works lawfully prescribed by a s33 notice.
The process is that the local government directs its bush fire control officer, or any other relevant officer, to carry out the requisitions in the notice that have not been complied with. That officer can then authorise the entry upon the land (by employees or contractors) in question and carry out the works.
The usual considerations apply with respect to the engagement of contractors, but the local government:
Local governments should ensure that the:
Let’s explore the practical applications of s33 and other sections in some common scenarios. The following are based on questions that LGIS regularly receives from members.
A local government issues a s33 notice to a resident to reduce their fuel loads and subsequently engages their Bush Fire Brigade (BFB) to assist with a fuel reduction burn. Unfortunately, one of the brigade trucks backs into the resident’s house.
What are the implications for the property owner if they suffer injuries or property loss because of the BFB activities?
This is a situation that crops up from time-to-time, where private property is damaged during BFB activities and there are some things to consider.
Firstly, when a landowner receives a s33 notice they may ask the local government for help to comply with their obligations. The local government can agree to carry out these works at the request of the landowner, and that ability is reflected in section 33 (6) of the Bush Fires Act.
If the local government agrees to provide this assistance, then it will owe a duty to the landowner (and surrounding landowners). But that duty is not strictly the same as the duty faced by a commercial contractor.
The agreed task must be performed with reasonable skill and care. This is also the case with a commercial contractor. If a commercial contractor fails to discharge that duty, then it will be liable to the landowner for any loss that is directly and foreseeably caused by that failure.
However, the local government, would probably be protected under section 37 of the Fire and Emergency Services Act 1998 (WA). This section provides a limited immunity to local governments with respect to claims arising out of the performance of a function under the emergency services Acts (which includes the Bush Fires Act). Accordingly, if the local government was conducting works on private property pursuant to section 33 (6) of the Bush Fires Act, and if those works caused property damage or other loss, then the local government would be protected as long as the loss arose out of conduct in good faith.
If, however, the conduct by the local government which caused loss was not in good faith (gross negligence, recklessness, deliberate misconduct for example), then s37 would not apply and the local government would be liable in damages.
Section 37 of the Fire and Emergency Services Act would not, however, provide any protection for a claim for a personal injury arising out of the driving of a registered motor vehicle (where there is third party insurance that covers the use of that vehicle). It should be noted that there is no need to prove negligence in third-party injury from a vehicle accident.
A property owner inspects and requests assistance from their local government for a reduction burn without obtaining a s33 notice. The local government helps with the Bush Fire Brigade (BFB) doing the burn, does this still qualify as a normal brigade activity under the Act?
This scenario would be a normal bridge activity.
Assisting a property owner with fuel reduction burns on the owner’s property, clearing or establishing a fire break, would all be considered normal brigade activity.
However, there is still a duty of care as noted previously. The BFB and local government, would owe a duty to the property owner to exercise reasonable care in the conduct of those works. Further it is likely, though not always, that such works would be covered by the partial immunity in section 37 of the Fire and Emergency Services Act.
A private resident directly asks a brigade to conduct a burn without consulting any local government officer or the Chief Bush Fire Control Officer. The brigade agrees to do the burn for a fee without notifying the local government. Does this meet the requirements of the Bush Fires Act 1954? Particularly regarding appropriate methods of fundraising?
In these circumstances, it’s quite unlikely that s33 (6) of the Bush Fires Act would apply.
The focus of s33 is that the local government is entitled to recover the costs incurred in conducting the works sanctioned under s33 or s33 (6) of that Act. The agreement of a fee is not consistent with the cost recovery philosophy of section 33.
The scenario’s arrangement resembles a commercial transaction (a fee for service). If it is a fee for service, it is unlikely to constitute works in accordance with the Fire and Emergency Services Act, the partial immunity in s37 is unlikely to be engaged.
It could even be a breach.
A bushfire brigade has statutory powers (under section 44 of the Bushfires Act and elsewhere). In many circumstances, those powers are engaged after the start of a fire. If a local brigade decides to carry out a fire reduction burn or other mitigatory activity for a private landowner, without direction of the relevant Fire Control Officer it may well be a breach of the proper control protocols with respect to the engagement of that fire brigade.
However, fire mitigation works performed by the brigade could still fall within normal brigade activities, even if there was a formal defect with respect to the authorisation process that led the brigade to conduct those works in the first place. However, while that work may be classified as a normal brigade activity, the brigade would likely not have the protection of the partial immunity.
By doing work for payment the brigade is acting like a private contractor, by their actions the brigade would be understood as a commercial contractor as opposed to a bush fire brigade, and the works that it did would not be a normal brigade activity under the Act (in the same way that a police officer moonlighting as a private security guard is a private security guard and not a police officer during that private commercial activity).
Further to the above, even if the owner/occupier agreed (by way of an indemnity) to release the BFB or LGA from liability, that release would not be effective against other landowners who suffer any damage from an escape of fire. An indemnity would not be a defence, just risk transfer.
A BFB, as part of normal brigade activities, is doing fire reduction work on private property. Unfortunately, a burn escapes the boundary causing injury and/or damage to neighbouring properties. Under the Act containment is the responsibility of the property owner. What factors might the court consider when determining liability?
A bush fire brigade fighting a fire on private property has the protection provided by section 37 of the Fire and Emergency Services Act. Any damage caused by the brigade acting in good faith in the execution of their responsibilities in fighting the fire is taken to be caused by the fire itself, and not by the brigade.
If, however, the brigade causes damage due to their conduct in responding to the fire, and that damage did not arise out of a good faith act of the brigade, then the brigade (or the local government) may be responsible for that loss
What is good faith?
This is a legal term that is often used. It means acting in an honest and reasonable way, and with regard for the interests of others. It refers to honesty, reasonableness,
fair dealing, loyalty, cooperation and having regard and care to the interests of all parties.
Actions that would be considered ‘not in good faith’ would be gross negligence, recklessness, or deliberate misconduct.
The question then is, to what extent is the brigade liable?
If the damage concerns a personal injury, then the brigade is responsible for that loss (though it may have rights of contribution against concurrent wrongdoers).
If the damage is economic, then the brigade is only liable for the extent to which its conduct caused or contributed to the loss. The proportionate responsibility of others (e.g. the landowner, other landowners, the person responsible for the escape of fire) will all be considered in terms of determining what the brigade’s ultimate liability is. Each assessment is dependent upon the facts of each case, and there are no bright line rules for the allocation of responsibility.
The recent WA Local Government Convention was an excellent opportunity to chat with members and talk about the issues that matter to you. LGIS also appreciated the invitation from WALGA to provide members with an update at their AGM on our 2023/24 results and achievements. For more information, our end of financial year reports, A Year in Review and Annual Financial Report, are now available on the LGIS website or you can read the article on page 18.
Even the smallest or most remote local government in Western Australia is connected to the global commercial market through their protection. Over the next few editions we’ll look at the
factors of concern and influence for each portfolio for LGIS, this edition we’re looking at LGIS Liability and Property protection.
Working from home and hybrid working is now common practice for many local governments. It offers plenty of benefits to individuals and employer alike. It can provide meaningful flexibility for employees to juggle multiple demands and is now expected by many recruits.
LGIS is the unifying name for the dedicated suite of risk financing and management services for WA local governments, established by the WA Local Government Association in conjunction with JLT Public Sector (part of the Marsh group of companies). LGIS is managed by JLT Public Sector (ABN 69 009 098 864 AFS Licence 226827).
Risk Matters, via this website, is designed to keep members, their staff and elected members informed on topical risk management and insurance issues and LGIS programs and services.
