Bugge v Brown [1919] HCA 5

Bugge v Brown [1919] HCA 5 - HCA 1919 case summary — Zoe

[23]

: [Isaacs J. referred to Matthews v. Forgie (1).} Buta distinction must be drawn between such a fire and a domestic fire, that is, a fire lighted for cooking purposes or for warmth. It is, in Australia, a natural use of fire to light it in the open for cooking "purposes (Whinfield v. Lands Purchase and Management Board of Victoria (2)). Such a fire is not a dangerous thing, and is not within the principle of Rylands v. Fletcher (3). Black v. Christ- church Finance Co. (4) is distinguishable on the ground that in that ease there was authority from the occupier to do a dangerous act. (See Pollock on Torts, 10th ed., pp. 522, 523.) The lighting of the fire in this case was not within the scope of Winter's employment. In order that the respondent may be held liable it is necessary to show that he authorized the act of Winter, either eXpressly or impliedly. An authority will not be implied merely from the fact that the act was done during the employment, but the act must have been involved in carrying out his employment (Williams v. Jones (5)). It must have been done as part of his duty; and that is what is meant by saying that it must have been done in the course f his employment. (See Stevens v. Woodward (6).) The terms "scope of employment " and " scope of authority " mean the same

thing (Lloyd v. Grace, Smith & Co, (7)). The cooking of the meal _ was no more an act done in the course of his employment than was _ the act of eating the meal. The only authority in this case to light a fire is to be gathered from the conversation between the respondent and Winter, and it was a special and limited authority to light a ~ fire at Old Kimbolton, The direction as to the place for lighting the fire is so wrapped up in the authority as to limit it. The evidence does not show any negligence on the part of Winter. The place where he lighted the fire was a place where a man might reasonably _ think it was safe to light it, and there is no evidence of any negligence in respect of the escape of the fire from that place. [Counsel also referred to Joseph Rand Ltd. v. Craig (8); Plumb v. Cobden Flour Mills Co. (9); Baker v. Earl of Bradford (10); Weighill v.

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the employment was to drill a certain hole. The instruction was to drill it from above, and there was a prohibition against drilling it from below. A violation of that prohibition, though of a most serious nature, still, in the opinion of 'the majority of the Court, - left the drilling of the hole within the sphere of employment. 4 It is also shown by Conway's Case (2), where a miner, for the purpose of getting a pick which he required for his work, and which - was left in a dangerous place, where he was forbidden to go, never- - theless went there, and was killed by an explosion of gas, and yet his disobedience did not take his act out of the sphere of employ- ment. In those two cases there was no clear disconnection. It could not be said the men were in effect strangers. In each case they were, to use the words of Kennedy L.J. in Harding's Case (3), "engaged in carrying out the purpose of" their "employment." And it may be added that, where two sets of duties are entrusted to a servant, the separation - if there be a separation intended - must be clear and distinct. The same principle of justice and policy which made, as Willes J. says in Limpus's Case (4), the rule of a master's responsibility necessary, even where the servant's conduct was not authorized directly or indirectly, requires the master, when entrusting two sets of duties at the same time in the same hands, to make the line of demarcation clear and distinct. He gets the benefit of the servant's acts, and he alone has the full power of expressing any limitations he desires. He ought, if he so wishes, to express himself so that no reasonable doubt can exist in the ser- vant's mind as to the character he fills at any particular moment, and so that he will be clear, beyond doubt, that a given violation : contemplated by him will place him in the position of a stranger. He must understand that such a violation will constitute an act not merely one which he is prohibited from doing in a particular place, but one which he is prohibited from doing at all (Barnes's

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part of the country, as appears from the public plans in evidence, is divided up by the Government into allotments, generally speaking _ very large - sometimes half a square mile and sometimes even more. _ At intervals, sometimes of a mile, sometimes less and sometimes more, roads a chain wide were reserved, so that in some localities every

two allotments constituted a block a mile square, or 640 acres, with chain-wide roads surrounding the blocks. If a man bought, _ for instance, four such allotments, so as to have two blocks of _ 640 acres each, to work in conjunction as a farm or grazing area, he would have to fence them off, so as to allow the intermediate
chain road to be clear. Gates would, however, permit easy access _ from one block to the other, and to all intents and purposes they would be one farm. Brown, in addition to his homestead, was ywner of 1,180 acres, that is, nearly two square miles, of this descrip- tion. He had two allotments of 320 acres, numbered respectively 22 and 23, and forming what is called McDonald's paddock, McDonald having been the original grantee. Across a chain road to the west, _ Brown had one complete allotment of 320 acres and part of another allotment, 220 acres (the balance, 100 acres, having passed into other hands); these two allotments were numbered respectively 6 and 7, and together were called Old Kimbolton. Not only were the i two blocks, Old Kimbolton and McDonald's paddock, capable of : being worked in conjunction, but this appears to have been actually the case. Gates were provided through which vehicles could pass _ from one place to the other. A haystack was placed in McDonald's _ paddock, at its very western edge, and close to the gate whence the hay could be taken to Old Kimbolton; and the farm labourers in ~ both paddocks, as a recognized practice - it is not said as a require- ment of their service - used to go to Old Kimbolton, that is, to the
thouse there, to luncheon. The two blocks, consequently, were not _ inherently separate and independent holdings, so far as the employees were concerned, A chain road in such a locality offers no practical separation for farming purposes. Learned counsel for the respon- ia dent, when asked, did not formally admit the practical working unity of the two blocks, but very properly abstained from contending

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_ time about February next." The contractor, in lighting the fire, did not take "reasonable precautions " against its spread, adopted no "' preventive measures " - was, in short, guilty of negligence. The burning actually took place on 23rd December ; but the Judicial Committee said that the landowners "having authorized and entrusted the operation . . . toanother . . . must answer for his " (the contractor's) " proceedings, however much he may have _ violated their instructions or the detailed conditions of his contract with them. . . . Assuming that there was a violation of the _ terms of the contract on the contractor's part in burning so early as the end of December this cannot in their Lordships' opinion affect the defendants' liability to third persons injured by the act of their contractor. . . . It could not be said he" (the con- tractor) "' was a trespasser when he lighted the fire, so that the _ defendants would not be liable for his act. So also if the contractor disregarded or violated stipulations as to the manner of lighting, or the place at which the fire should be lit." The same doctrine as to liability is extended to the case of frauds committed by an employee _ although the principle of Sic utere tuo ut alienum non ledas is hardly applicable. A solicitor's clerk who did the conveyancing business induced a client by fraud to sign conveyances &c., and used the proceeds for his own purposes. There was no suggestion that the solicitor had authorized what was done by the clerk; but the solicitor was held liable to the client (Lloyd v. Grace, Smith & Co. (1)). The fraud was done " in the course of the master's business " - "* in the course of" the clerk's "employment." The expressions of Willes J. in Barwick v. English Joint Stock Bank (2) were explained and adopted : - ' The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service . . . though no express command or privity of the master be proved. . . . Im all these cases it may be said, as it was said here, that the master had not authorized the act. It is true that he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent has con- ducted himself in doing the business which it was the act of his

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Judgment (138 paragraphs)

Cited By (4)