Veldfire investigations: Sooner or later? By Rob Erasmus

By Rob Erasmus, director, Enviro Wildfire Consultancy (Pty) Ltd

With the growing number of veldfires occurring across South Africa that are causing loss to be suffered, the need for validated information and sound evidence is becoming ever more important in litigation matters. It is common sense that the sooner an investigation is undertaken the more accurate the information and evidence will be, equating to an increase in the likelihood of success during civil claim matters.

Fire investigations are normally undertaken to obtain information so as to be able to make informed decisions ie whether to prepare for criminal prosecution or civil proceedings, alternatively that the findings can be used by insurers and/or attorneys to either seek damages for loss suffered or alternatively to prepare for defending a client in litigation matters.

The general benefits of having a fire investigation conducted early, even if only a preliminary undertaking, include:

• Eye witness accounts are more reliable and of greater accuracy• The origin of the fire is less likely to be contaminated and thus a greater likelihood of the origin and cause being accurately determined• Evidence to document and determine fire spread is more reliable• The time and effort required to conduct the investigation is significantly reduced, which equates financially to a lower cost

It is safe to state that in most cases a landowner will know early during a wildfire situation if there are going to be costs for fire that starts or spreads from their property, alternatively that spreads onto their property. Such costs can include:

• Own losses (infrastructure, crops, firefighting, loss of income, etc): Such losses may or may not be covered by insurance.• Third party losses by the neighbours and/or guests.• Fire suppression costs from the local fire department (including aerial support) and neighbours.

When one considers the potential overall costs (which can easily amount to over R1m) when compared to the almost insignificant amount for an investigation, the value of such an early undertaking resulting in an accurate report is self-explanatory.

It is a fact that the majority of wildfire litigation matters hinge on the fire investigation report. A good accurate reliable fire investigation report can be the difference between a case being won or lost.

The steps for a landowner who has reason to believe that they are going to need to recover losses or when they believe that they have caused loss to be suffered to a third party, should be:

• Contact their insurer if they have one and advise them of the situation, adding that they recommend that a fire investigation be conducted to document the origin, cause and spread of the fire. This information can become the cornerstone or foundation of the claim or defence. In many cases the insurance company will authorise and actually cover the costs of the investigation.

• If the landowner does not have insurance, they should contact their attorney to advise them of the situation and similarly suggest that the fire be documented in preparation for litigation.

The benefit of a fire investigator being appointed by a legal representative is that the report is privileged and is drafted in contemplation of litigation. Thus even if there is information that suggests that the client was negligent, such information remains privileged.

In general the mandate for a veldfire investigation where loss has been suffered consists of:

• Determining the origin of the fire using the scientific method and eye witness accounts• Determining the cause of the fire using evidence• Determining the spread of the fire and the conditions present when the fire crossed the property boundary• Determining if the landowner where the fire originated was compliant with the requirements of the National Veld and Forest Fire Act (NVFFA) and if they were a member of the local Fire Protection Association on the day of the fire• Determining if the party that suffered loss was compliant with the requirements of the National Veld and Forest Fire Act (NVFFA) and if they contributed to their own loss.

In order to determine the origin and cause of a veldfire, permission needs to be obtained from the landowner where the fire originated. If such person is not willing to provide the required permission, it is then necessary for attorneys to submit a formal letter request. In the majority of such cases permission with terms and conditions is then granted. An experienced wildfire investigator will quickly be able to determine if the origin of the fire has been purposefully disturbed/ contaminated and such findings would be included in the report which could suggest that the landowner has wilfully made an effort to conceal the cause of the fire.

The cost to conduct a general fire investigation consists of:

• Preparations for the investigation (determining the mandate, travel and accommodation arrangements, access permission, maps of the area, names of witnesses and appointments made to interview them, etc.)• Travel, accommodation and meal costs where applicable• Site visit and interviews• Purchase of South African Weather Services (SAWS) data where necessary• Purchase of thermal hotspot satellite data where necessary• Report writing• Post report submission consultation

It must be stressed at this point that the longer the time lapse between the fire and the investigation, the more effort is required when conducting the site visit and interviews. The cost can literally treble between conducting the fire within a week of it occurring and three months later.

While it might appear at first that a fire investigation report is a costly outlay, without a good and accurate investigation report that would substantially increase the chances of a successful litigation seeking to recover losses that could amount to hundreds of thousands of Rand, alternatively to provide a defence for a respondent, the initial cost (depending on the investigator) is insignificant.

Rob Erasmus of Enviro Wildfire Consultancy (Pty) Ltd is a qualified Advanced Wildland Fire Investigator with 18 years of experience and has conducted over 500 investigations that include civil, criminal and fatal veldfires. He has provided expert witness in a number of courtroom matters and has a healthy knowledge of litigation requirements and procedures. Approved ‘Wildland Origin and Cause Determination Fire Investigation’ training can also be provided.

Contact Rob ErasmusMobile: 083 411 3378Email: enviro@absamail.co.zawww.wildfireconsultancy.co.za