Burnie Port Authority v General Jones Pty Ltd

Burnie Port Authority v General Jones Pty Ltd - [1994] HCA 13 - HCA 1994 case summary — Zoe

[23]

In Hargrave v Goldman [39] , Windeyer J. traced the origins of what he described [40] as "the rigorous rule of the mediaeval common law" relating to escape of fire and identified its statutory modifications in England and Western Australia. His Honour concluded that, even if it were accepted that those statutory modifications did not apply in this case, the Court would not be "thrown back" to that rigorous rule since the Court had "held that the old rules have been absorbed into the principle of Rylands v Fletcher ; and that the strict liability of the common law is subject to the qualifications of and exceptions to that principle" [40] . In support of that conclusion, his Honour cited Bugge v Brown [41] and Hazelwood v Webber [37] . The reference to Bugge v Brown was to pages of the Commonwealth Law Reports in which Isaacs J. had recorded that, in the course of argument of that case, the Court had ruled against a proposition "that the owner of land is liable for damage caused by any fire there in fact kindled or kept by his servant whether negligently or not, and whether or not in the course of his employment". The various reports of the argument in Bugge v Brown do not refer to that ruling [42] . Isaacs J.'s terse explanation of it in his judgment was that "the rigorous proposition so contended for cannot now be maintained". It is possible that, as Zeeman J. suggested in his judgment in the present case, the ruling was based more on the perceived effect of the eighteenth century legislation than on the perception in support of which Windeyer J. cited it in Hargrave v Goldman , namely, that "the old rules have been absorbed into the principle of Rylands v Fletcher ". On balance, however, it seems to us that, in the context of Isaacs J.'s judgment in the earlier case of Whinfield v Lands Purchase and Management Board (Vic) [43] , Windeyer J.'s reliance on Bugge v Brown was well founded. In that regard, it is relevant to note Isaacs J.'s reference, in the course of argument in Bugge v Brown [44] , to Batchelor v Smith [45] and the subsequent reference in his judgment [46] to Musgrove v Pandelis [47] . In the former case [48] , it was held by the Full Court of the Supreme Court of Victoria that neither the ignis suus rule nor the eighteenth century English statutes had ever applied in Victoria. In the latter [49] , the trial judge, Lush J., had indicated that, in the context of the Fires Prevention (Metropolis) Act 1774, the defendant's liability for damage caused by the escape of fire from his premises flowed from the application of the "principle" of Rylands v Fletcher rather than from any special rule relating to the escape of fire. However, regardless of the justification for Windeyer J.'s reliance on Bugge v Brown , one thing is clear. That is that his Honour's conclusion that the cases in the Court establish that the old special rule relating to liability for escape of fire has been "absorbed into the principle of Rylands v Fletcher " was fully justified by the judgments in Hazelwood v Webber and the other cases to which reference has already been made in this judgment.

[31]

the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. Notwithstanding the many accolades which have been, and continue to be, lavished on Blackburn J.'s judgment [1] , that brief exposition of "the true rule of law" is largely bereft of current authority or validity if it be viewed, as it ordinarily is, as a statement of a comprehensive rule [2] . Indeed, it has been all but obliterated by subsequent judicial explanations and qualifications. Thus, the phrase "for his own purposes" has been largely discarded as a general qualification. While it occasionally re-emerges in general statements of the rule, its current role would seem to be confined to that of a bolster of the requirement of "natural use" [3] in cases involving the use of premises for public or patriotic purposes [4] . The possessive "his" before "lands", apparently used to denote ownership, must be expanded to include the non-owning occupier. Arguably, it should be further expanded to the stage where it would include any person in control. On the other hand, it is arguable that it should be confined to exclude the non-occupying owner. The word "lands", used in conjunction with "escapes", is too narrow. The precise extent to which it should be extended is, however, a matter of complete uncertainty. The conjunctive "and" before "collects" and "keeps" should be read as the disjunctive "or". The phrase "anything likely to do mischief if it escapes" has, in a process commenced by Blackburn J. himself [5] , largely been supplanted by the word "dangerous". The reference to "all the damage which is the natural consequence of its escape" is too wide [6] . The statement that it was "unnecessary to inquire what excuse would be sufficient" has inevitably been overlaid by decisions identifying such excuses. It does, however, serve the continued purpose of highlighting the fact that the rule enunciated by Blackburn J. was, as his Lordship made clear, one of "prima facie" liability. 1. (1866) L.R. 1 Ex., at pp. 279-280. 2. Willes, Blackburn, Keating, Mellor, Montague Smith and Lush JJ. 3. See, e.g., Wigmore, Responsibility for Tortious Acts: Its History, Harvard Law Review, vol. 7 (1894) 315; 383; 441, at p. 454: "the master-mind of Mr. Justice Blackburn"; Newark, The Boundaries of Nuisance, Law Quarterly Review, vol. 65 (1949) 480, at p. 487: "his great judgment"; Salmond and Heuston on the Law of Torts, 20th ed. (1992), p. 314: "always been recognised as one of the masterpieces of the Law Reports." 4. See, e.g., Jones v Festiniog Railway Co. (1868), L.R. 3 Q.B., at p. 736, per Blackburn J.: "the general rule of common law." 5. See below. 6. See, e.g., Read v J. Lyons & Co. Ltd. [1947] AC., at pp. 169-170. 7. Jones v Festiniog Railway Co. (1868), L.R. 3 Q.B., at p. 736: "a thing of a dangerous nature." 8. See below, fn. 55.

[39]

each [i.e. the questions whether something "is dangerous" and whether a "use" is a "non-natural" one] seems to be a question of fact subject to a ruling of the judge as to whether the particular object can be dangerous or the particular use can be non-natural, and in deciding this question I think that all the circumstances of the time and place and practice of mankind must be taken into consideration so that what might be regarded as dangerous or non-natural may vary according to those circumstances. Those comments are not inconsistent with the statement of Gavan Duffy C.J., Rich, Dixon and McTiernan JJ. in Hazelwood v Webber [19] that the question of non-natural use "is not one to be decided by a jury on each occasion as a question of fact". Indeed, the sentences in their Honours' judgment which immediately precede that statement tend to emphasize the importance of the particular factual circumstances [19] : Now in applying this doctrine to the use of fire in the course of agriculture, the benefit obtained by the farmer who succeeds in using it with safety to himself and the frequency of its use by other farmers are not the only considerations. The degree of hazard to others involved in its use, the extensiveness of the damage it is likely to do and the difficulty of actually controlling it are even more important factors. These depend upon climate, the character of the country and the natural conditions. Obviously, the question whether there has been a non-natural use in a particular case is a mixed question of fact and law which involves both ascertainment and assessment of relevant facts and identification of the content of the legal concept of a "non-natural" use. Indeed, it is one of those questions which may be misleadingly converted into a pure question of fact or a pure question of law by an unexpressed assumption that either the precise content of applicable legal concepts or the relevant facts and factual conclusions are manifest and certain. Be that as it may, and regardless of whether one emphasises the legal or factual aspect of the question of non-natural use, the introduction of the descriptions "special" and "not ordinary" as alternatives to "non-natural", without any identification of a standard or norm, goes a long way towards depriving the requirement of "non-natural use" of objective content [20] . 1. [1947] A.C., at p. 176. 2. (1934) 52 C.L.R., at p. 278. 3. (1934) 52 C.L.R., at p. 278. 4. cf. Webber v Hazelwood (1934), 34 S.R. (NSW) 155, at p. 159, per Jordan C.J.: "The adjectives which have been used in this connection do not of themselves supply a solution."

[49]

It is true that the requirement of proximity was neither formulated by Lord Atkin nor propounded and developed in cases in this Court as a logical definition or complete criterion which could be directly applied as part of a syllogism of formal logic to the particular circumstances of a particular case [37] . As a general conception deduced from decided cases, its practical utility lies essentially in understanding and identifying the categories of case in which a duty of care arises under the common law of negligence rather than as a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing [38] . That is, however, the basic function performed by general principles or conceptions in the ascertainment and development of the common law. More than half a century ago, Scott L.J. [39] drew attention to the "curious repetition of history" involved in the fact that "Lord Atkin's exposition of principle [had] met with the same unfair criticism, although less in degree, as that which Lord Esher's exposition [of principle in Heaven v Pender had] evoked". Scott L.J. correctly pointed out [39] that criticism based on "the error of assuming that Lord Atkin was intending to formulate a complete criterion, almost like a definition in the prolegomena to a new theory of philosophy" failed to appreciate "the real value of attempts to get at legal principle". The point can be illustrated by contrasting the specific test of "non-natural", "special" or "not ordinary" use under the rule in Rylands v Fletcher with the general conception or principle of proximity of relationship in the law of negligence. The "non-natural" use test under the rule in Rylands v Fletcher was not deduced from past cases. As has been said, it was an unexplained, and conceivably inadvertent, judicial transformation of Blackburn J.'s qualification "not naturally there". More important, notwithstanding its lack of clear objective content, it has been propounded merely as a specific test to be directly applied, as part of a complex complete criterion of liability, to the particular circumstances of a particular case. Far from representing a unifying principle and a general conceptual explanation and determinant of different categories of case, it has, in combination with the associated (and often confused [40] ) requirement of dangerousness, become a source of disunity and disparity within the individual category. Thus, the introduction to or retention on land of trees, water, gas, electricity, fire and high-explosives [41] , amongst other things, have all been seen, as a result of the application of the test to the particular circumstances, as both attracting and not attracting the operation of the rule in Rylands v Fletcher [42] . Indeed, the test of "non-natural use" has probably done more than anything else to vindicate Sir Frederick Pollock's identification, almost a century ago, of Rylands v Fletcher as one of those authorities "that are followed only in the letter, and become slowly but surely choked and crippled by [judicially imposed] exceptions" [43] .

[52]

Much has been written in the past about precisely where, among the old forms of action, one should locate the source or sources of the rule in Rylands v Fletcher [1] . However, the subsequent emergence of a coherent law of negligence to dominate the territory of tortious liability for unintentional injury to the person or property of another has deprived the question of much of its practical significance. Regardless of the parental claims of nuisance [2] or even trespass [3] , the rule has been increasingly qualified and adjusted to reflect basic aspects of the law of ordinary negligence. As has been said, Blackburn J.'s qualification: "which he knows to be mischievous", has been refined into an objective test which is (at the least) a close equivalent of foreseeability of damage of the relevant kind. As has been seen, the absence of reasonable care or the presence of "negligence" has itself intruded as a factor in determining whether, for the purposes of the rule, the use of land is "non-natural", "special" or "not ordinary". Moreover, the various defences of an occupier of premises against Rylands v Fletcher "strict liability" closely correspond with grounds of denial of fault liability under the law of negligence. Thus, "consent" and "default of the plaintiff" are analogous to voluntary assumption of risk and contributory negligence. Again, while Blackburn J. recognized them as possible excuses [4] , defences of "consequence of vis major, or the act of God", in the context of damage caused by the "escape" of the dangerous substance, are more attuned to the notion of fault liability than that of strict liability [5] . Where the defence of statutory authority is available, the issue will commonly become one of negligence simpliciter [6] . Clearly, there is validity in Professor Fleming's comment [7] that "[t]he aggregate effect of these exceptions makes it doubtful whether there is much left of the rationale of strict liability as originally contemplated in 1866".

[55]

Developments in the law of tort are towards a liability for personal harm done to persons who are neighbours in Lord Atkin's sense. They need not be persons having an interest in land in the neighbourhood. The movement of the common law is away from any preoccupation it may once have had with the protection of rights in land I think this Court should treat the doctrine of Rylands v Fletcher as having become in this matter emancipated from restrictions its origin in or relationship with nuisance might impose. It would seem that, in England, recoverable damages under the rule in Rylands v Fletcher may still be confined to compensation for damage to property sustained by the owner or occupier of neighbouring land "on to" which the dangerous thing "passes" and "does damage" [9] . In this country, such damages are not so confined but extend to personal injury or damage to property sustained outside the relevant premises by persons having no relationship to neighbouring land apart from being on it [10] . As Windeyer J. said in Benning v Wong [11] : A plaintiff can I think recover under it for personal injuries, or harm to his personal effects if, at the time when the escaping thing came upon him, he was in a place where he was lawfully entitled to be as a licensee, or as a member of the public, such as on a highway or in a public park. Windeyer J.'s qualification "where he was lawfully entitled to be" was intended, as his Honour made clear [11] , to leave open rather than to exclude the position of a trespasser. Otherwise, the main control of recoverable damages under the rule is the requirement that the damage be related to the qualities or circumstances which bring the case within the rule [12] . In the context of the other requirements of the rule [13] , that control closely corresponds with ordinary negligence's insistence that actionable damage be foreseeable [14] . 1. (1969) 122 C.L.R., at pp. 319-320. 2. See, e.g., Read v J. Lyons & Co. Ltd. [1945] KB., at p. 238; [1947] A.C., at pp. 173, 174; but cf. Perry v Kendrick's Transport Ltd. [1956] 1 WL.R. 85, at p. 92; [1956] 1 All E.R. 154, at pp. 160-161. 3. See, e.g., Thompson v Bankstown Corporation (1953), 87 C.L.R., at 644; Benning v Wong (1969), 122 C.L.R., at pp. 274-275, 277, 319-320. 4. ibid., at p. 320. 5. ibid., at p. 320. 6. See Fletcher v Rylands (1866), L.R. 1 Ex., at p. 279: "damage which is the natural consequence of [the] escape"; Fleming, op. cit., p. 329. 7. In particular, Blackburn J.'s "which he knows to be mischievous" as developed by subsequent authority. 8. Benning v Wong (1969), 122 C.L.R., at p. 320; see also Salmond and Heuston on the Law of Torts, op. cit., pp. 324-325; Todd et al., The Law of Torts in New Zealand, (1991), at p. 471; but cf. Clerk & Lindsell on Torts, 15th ed. (1982), at p. 1205.

[65]

that duty went as far as to require [the defendant] to see that reasonable skill and care were exercised in those operations If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. In Kondis v State Transport Authority [28] , in a judgment with which Deane J. and Dawson J. agreed, Mason J. identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common "element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken" is that "the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised" [29] . It will be convenient to refer to that common element as "the central element of control". Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person [30] . 1. (1986) 162 C.L.R., at p. 382. 2. See Kondis v State Transport Authority (1984), 154 C.L.R. 672, at p. 686. 3. (1883) 8 App. Cas. 443, at p. 446. 4. (1984) 154 C.L.R., at pp. 679-687; and see also, Stevens v Brodribb Sawmilling Co. Pty. Ltd. (1986), 160 C.L.R., at p. 44, per Wilson and Dawson JJ. 5. Kondis v State Transport Authority (1984), 154 C.L.R., at p. 687; see also, Stevens v Brodribb Sawmilling Co. Pty. Ltd. (1986), 160 C.L.R., at pp. 31, 44-46. 6. The Commonwealth v Introvigne (1982), 150 C.L.R. 258, at p. 271, per Mason J.

[71]

Black v Christchurch Finance Co. was followed by this Court in McInnes v Wardle [36] . There again, the plaintiff's property had been damaged when fire spread to his land from the defendant's land. The fire had been lit to burn bracken on the defendant's land by an independent contractor whom the defendant had engaged to fumigate rabbits on the property and to do some other work. It was found by the trial judge that, notwithstanding that the burning of scrub at that time of the year was an unlawful and dangerous activity, the defendant knew, or ought reasonably to have known, that fire would be employed if, as was likely, its use was found necessary or expedient in the opinion of the independent contractor [37] . Rylands v Fletcher was not mentioned in argument or in any of the judgments. Gavan Duffy C.J. and Starke J. (in a joint judgment) and Evatt J. and McTiernan J. (in individual judgments) all concluded that the defendant was liable on the ground that, in the circumstances of the case, he owed a non-delegable duty of care, of the kind which had been held to exist in Hughes v Percival and Black v Christchurch Finance Co. , which required him to ensure that the independent contractor exercised " reasonable care" [38] (emphasis added) or took " reasonable precautions" [39] (emphasis again added). The other member of the Court, Dixon J., also referred to the "duty of an occupier to take care that his land is so used and the operations carried out upon it are so managed that his neighbours are not exposed to injury by exceptional dangers" (emphasis added) [40] . Again, in Torette House Pty. Ltd. v Berkman [41] , Dixon J. would seem to have accepted that dangerous use of land will give rise to such a personal or non-delegable duty of care on the part of the occupier under the principles of ordinary negligence. In that case, the independent contractor had not been employed by the defendant in the defendant's capacity of occupier of the premises from which water had escaped. He had been employed, as Dixon J. pointed out [41] , "to do some work at the fittings of the shop further down the street". In concluding that, in the circumstances, the defendant was not liable under general principles for the negligence of his independent contractor, his Honour commented [41] :

[75]

Once it is appreciated that the special relationship of proximity which exists in circumstances which would attract the rule in Rylands v Fletcher gives rise to a non-delegable duty of care and that the dangerousness of the substance or activity involved in such circumstances will heighten the degree of care which is reasonable, it becomes apparent, subject to one qualification, that the stage has been reached where it is highly unlikely that liability will not exist under the principles of ordinary negligence in any case where liability would exist under the rule in Rylands v Fletcher . It is true that one can point to a few cases, of which the most important are probably the 1934 case of Hazelwood v Webber [45] in this Court and the 1908 case of West v Bristol Tramways Co. [46] in the English Court of Appeal, in which Rylands v Fletcher liability was held to exist notwithstanding a finding of, or to the effect of, no negligence by the defendant. However, close examination of those cases discloses that they lack validity as examples of circumstances where the application of the modern law of negligence and the rule in Rylands v Fletcher would produce different results. In Hazelwood v Webber , which was the last case in this Court in which a finding of liability was based on the rule in Rylands v Fletcher , the defendant had failed to take the steps necessary to ensure that a fire which he had lit on his land in breach of s. 2 of the Careless Use of Fire Act 1912 NSW [47] in mid-summer did not revive and spread to his neighbour's land. The trial jury had given a negative answer to the question whether the defendant had been negligent. That answer had, however, been given in a context where the trial judge had refused to give a direction that burning off in mid-summer was not a natural and proper use of the land [48] . In this Court, where the propriety of the jury's answer negating negligence was not examined in the judgments, the basis of the finding of Rylands v Fletcher liability was the conclusion that burning off in mid-summer in Australia was a non-natural, extraordinary, special and highly dangerous use of land [49] . Once that conclusion is accepted, it is plain that the jury's finding of no negligence could not, under the modern law of negligence, be sustained in the absence of any direction about the non-delegable nature and onerous standard of the duty of care required in relation to such a user of land. Indeed, the judgment of the majority of the Court in Hazelwood v Webber [50] actually quotes the Privy Council's statement of that onerous non-delegable duty in Black v Christchurch Finance Co. [51] , but in support of the finding of Rylands v Fletcher liability. In West v Bristol Tramways Co. , the jury's answers to a number of questions were treated by the Court of Appeal as negating any negligence on the part of the defendant company. On that basis, it is difficult to understand the Court of Appeal's conclusion that Rylands v Fletcher was applicable to a case involving the use of creosote-coated wood for paving parts of a road in circumstances where the denial of negligence presumably meant that the defendant company did not "know", and could not reasonably be expected to know, that the creosote component of creosote-treated timber was "mischievous if it gets on his neighbour's [land]" [52] . Indeed, at least in this country, it is somewhat difficult to understand how creosote-treated timber could be seen as a "dangerous" substance for the purposes of the rule in Rylands v Fletcher . Again, however, if the basis for Rylands v Fletcher liability did exist and the treated timber was a "dangerous" substance which the defendant knew, or ought to have known, would cause damage if it "escaped", it would seem that a finding of negligence would be inevitable under the modern law of negligence.

[82]

I do not find it necessary to discuss at length the cases dealing with duties where the thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or non-existence of a legal right. In this respect I agree with what was said by Scrutton L.J. in Hodge & Sons v Anglo-American Oil Co. [3] , a case which was ultimately decided on a question of fact. "Personally, I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep's clothing instead of an obvious wolf." The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate the general principle. The fact that a particular substance or a particular activity can be seen to be "inherently" or "of itself" likely to do serious injury or cause serious damage will, of course, ordinarily make characterization as "dangerous" more readily apparent. That fact does not, however, provide a criterion of what is and what is not dangerous for the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one. It suffices for that purpose that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it. 1. [1932] A.C., at pp. 595-596. 2. (1922) 12 Ll. L. Rep. 183, at p. 187.

[86]

As has been seen, the evidence established that the Authority (through one of its employees) was aware that the cardboard containers of Isolite were being stored in the roof area near where welding work was to be carried out by W. & S. It is, however, unnecessary that that was so. It suffices for present purposes that the Authority engaged and authorized its independent contractor to carry out work within its premises which required both the introduction of such large quantities of E.P.S. to the premises and the carrying out of extensive welding work within the premises. It has not been suggested that it was not reasonably foreseeable that the large quantities of E.P.S. which W. & S. was authorized and required by the Authority to use would be contained in a combustible container such as cardboard. To the contrary, the evidence established that the Isolite had been used in Stage 1 of the building and, as has been said, that an employee of the Authority actually saw the cardboard containers being raised into the roof of the premises. In these circumstances, the overall work which the independent contractor was engaged to carry out on the premises was a dangerous activity in that it involved a real and foreseeable risk of a serious conflagration unless special precautions were taken to avoid the risk of serious fire. It was obvious that, in the event of any serious fire on the premises, General's frozen vegetables would almost certainly be damaged or destroyed. In these circumstances, the Authority, as occupier of those parts of the premises into which it required and allowed the Isolite to be introduced and the welding work to be carried out, owed to General a duty of care which was non-delegable in the sense we have explained, that is to say, which extended to ensuring that its independent contractor took reasonable care to prevent the Isolite being set alight as a result of the welding activities. It is now common ground that W. & S. did not take such reasonable care.

[108]

The special responsibility arising from the use of fire has come to be regarded as no more than an application of a wider general rule governing the liability of occupiers of property and, perhaps, others who introduce an agency from which harm may reasonably be expected unless an effective control of it is maintained. The grounds of excuse or exception have arisen in the development of this general rule rather than in connection with the ancient strict liability for the escape of fire. Windeyer J. was thus able to say in Hargrave v Goldman [22] : This Court has held that the old rules have been absorbed into the principle of Rylands v Fletcher ; and that the strict liability of the common law is subject to the qualifications of and exceptions to that principle. It may be that the movement from strict to qualified liability in tort, which has long been judicially noticed [23] , assisted first in the statutory qualification of ignis suus [24] and later in the absorption of the tort of ignis suus in the rule in Rylands v Fletcher . Whatever the explanation, the rule in Rylands v Fletcher excluded the rule of ignis suus as an appropriate measure of the liability of an occupier of land or premises if damage is caused by the escape of fire. One consequence is that an owner or occupier of land or premises is no longer liable if a fire has been lit upon his land or premises without his authority by a licensee other than his servant and the fire escapes without negligence [25] on the part of that owner or occupier. The Full Court was therefore right to reject the basis on which Neasey J. had held B.P.A. liable. A more difficult question is whether B.P.A. is liable under the rule in Rylands v Fletcher . 1. (1919) 26 C.L.R., at p. 115. 2. (1934) 52 C.L.R., at p. 275. 3. (1963) 110 C.L.R. 40, at p. 58. See also in Wise Bros. Pty. Ltd. v Commissioner for Railways (NSW) (1947), 75 C.L.R. 59, at p. 70, per Starke J. 4. Stevens v Brodribb Sawmilling Co. Pty. Ltd. (1986), 160 C.L.R. 16, at p. 42, per Wilson and Dawson JJ. and Read v J. Lyons & Co. Ltd. [1947] AC. 156, at p. 180. 5. See Balfour v Barty-King [1957] 1 QB., at p. 503. 6. Hargrave v Goldman (1963), 110 C.L.R. 40; (1966), 115 C.L.R. 458; [1967] 1 A.C. 645.

[118]

The question is not one to be decided by a jury on each occasion as a question of fact. The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment. (Emphasis added.) The view taken by this Court that the character of a use is "not one to be decided by a jury" differs from the view taken by Lord Porter in Read v J. Lyons & Co. Ltd. [43] . He thought it was a mere question of fact. The difference seems to me to be of some importance. If the character of a use is a mere question of fact, the rule in Rylands v Fletcher would become another conquest in the imperial expansion of the law of negligence. It would be unlikely in practice that a different answer would be given to the question: "was the use so fraught with risk to others as not to be a natural use?" from the question: "was the use so fraught with risk to others that the defendant is liable for any failure to exercise reasonable care to prevent the escape of the dangerous thing?" There is, of course, no legal imperative to contain the expansion of the law of negligence but, if it were to conquer the rule in Rylands v Fletcher , a plaintiff who suffers loss by the escape of a dangerous thing from the defendant's land would go remediless unless the plaintiff could prove negligence contributing to the escape on the part of the defendant, his servants or agents or the escape amounted to a nuisance. Under Rylands v Fletcher , the plaintiff can recover if the escape is caused by negligence on the part of the defendant's independent contractor or, more accurately, without proof of any negligence causing or contributing to the escape. "The whole point of Rylands v Fletcher liability", said Menzies J. in Benning v Wong [1] , "is that the exercise of care is irrelevant." To eliminate the rule in Rylands v Fletcher and to subject all cases now falling within that rule to the law of negligence would be to depreciate the duty which Rylands v Fletcher imposes on the occupiers of land and premises and correspondingly to diminish the security which that rule confers on their neighbours [2] . Nevertheless, as we shall see, many cases in which a plaintiff might recover under Rylands v Fletcher are cases in which the plaintiff might recover in negligence or in nuisance. 1. (1934) 52 C.L.R., at p. 278. 2. [1947] A.C., at p. 176. 3. (1969) 122 C.L.R. 249, at p. 278. 4. In Cambridge Water Co. v Eastern Counties Leather Plc. [1994] 2 WL.R. 53; [1994] 1 All E.R. 53 the House of Lords has maintained strict liability for damage in the event of escape of harmful things from the defendant's premises where damage of the relevant type was foreseeable if the thing should escape.

[123]

The rule in Rylands v Fletcher has been said [7] to rest on the principle sic utere tuo ut alienium non laedas ("so use your own property as not to injure the rights of another" [8] ). It imposes a duty arising out of the use of land or premises on "occupiers of property and, perhaps, others who introduce an agency from which harm may reasonably be expected unless an effective control of it is maintained" [9] "The foundation of the rule", Windeyer J. said in Benning v Wong [10] , "is that the bringing of things with mischievous possibilities or propensities upon land creates a duty to confine them there. The harm they do by escaping could not occur but for the act of bringing them to the place whence they escape." But Rylands v Fletcher does not impose liability on an occupier of land if the mischievous thing is not created or brought on to the land with the occupier's authority or kept there for the occupier's purpose. In Hargrave v Goldman [11] where lightning struck and lit a tree on the defendant's land whence a fire spread after a time to neighbouring land, the defendant was held liable for allowing the fire to spread, but his liability was found in nuisance and in negligence, not under Rylands v Fletcher . Although fire is a thing likely to do mischief if it escapes, Rylands v Fletcher was "excluded simply because the respondent did not bring the fire upon his land, nor did he keep it there for any purpose of his own. It came there from the skies. And he did nothing to make its presence there more dangerous to his neighbours." [12] And in McInnes v Wardle [13] the liability of the farmer for escape of fire lit by his independent contractor to assist in the fumigation of rabbits depended upon a finding that the farmer had authorized the independent contractor to light the fire [14] . By contrast, in Torette House Pty. Ltd. v Berkman [15] , the defendant occupier of the premises from which the water escaped was held exempt from liability. In that case, the escape of water which damaged the plaintiff's premises was caused by the negligence of the defendant's plumber, an independent contractor, who negligently turned a stopcock causing water to flow out of an uncapped pipe in the water supply system. The defendant was not vicariously liable for the negligence of his independent contractor in turning on the water, nor was he liable under Rylands v Fletcher , for the installation of a water supply system was a natural use of his premises.

[132]

Although the general rule is that a person is not liable for the negligence of his independent contractor, it is accepted that a person who owes a duty to a third party cannot avoid responsibility for discharging that duty by delegating performance of it to an independent contractor. Dixon J. in McInnes v Wardle [23] pointed out that an occupier of land may come under a duty by reason of acts done by an independent contractor: The duty of an occupier to take care that his land is so used and the operations carried out upon it are so managed that his neighbours are not exposed to injury by exceptional dangers is not confined to dangers arising from acts of himself and his servants. (See per Littledale J. in Laugher v Pointer [24] ; per Jessel M.R. in White v Jameson [25] ; and Rainham Chemical Works Ltd. v Belvedere Fish Guano Co. [26] ). The general principle was stated by Cockburn C.J. in Bower v Peate [27] : [A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted. While it may be just to hold the party authorizing the work in the former case exempt from liability for injury, resulting from negligence which he had no reason to anticipate, there is, on the other hand, good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for such prevention may arise. 1. As in Black v Christchurch Finance Co. Ltd. [1894] AC., at p. 54; McInnes v Wardle . 2. As in The Commonwealth v Introvigne (1982), 150 C.L.R. 258, at pp. 270-271, 274-275, 279-280. 3. (1975) 133 C.L.R. 550, at p. 574. 4. (1931) 45 C.L.R., at p. 552 and cf. Torette House Pty. Ltd. v Berkman (1940), 62 C.L.R., at p. 651. 5. (1826) 5 B. & C. 547, at p. 560 [108 E.R. 204, at p. 209]. 6. (1874) L.R. 18 Eq. 303, at p. 305. 7. [1921] 2 A.C. 465. 8. (1876) 1 Q.B.D. 321, at pp. 326-327.

[145]

A person who procures the doing of an act is liable for its actual consequences and for anything necessarily involved in its being done whomsoever he may have procured to do it. He is liable for the acts of any agent of his acting within the scope of his employment. For the actual breach of any duty owed by himself he is responsible whatever steps he may have taken or agency he may have employed to endeavour to prevent a breach. In certain special circumstances, if he causes an act to be done he incurs a liability to see that care is used to prevent injury from being caused by methods incidentally used to produce the result, whomsoever he may employ to produce it. But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is "dangerous," "hazardous," or "extra hazardous." And in Stoneman v Lyons [45] , Stephen J. said: An employer will, whether or not the activity is regarded as extra-hazardous, be liable in negligence for the consequences to third parties both of acts which he specifically authorizes or directs and of methods not so authorized but which are necessarily involved in performing those acts. For the consequences of other negligent conduct of the contractor the employer will not be liable. Thus no duty to take reasonable care is imposed on an employer merely because damage might be done if the independent contractor authorized to perform an act adopts a careless method of doing it and no liability is imposed on the employer merely because damage is done by carelessness in the method adopted. Such carelessness on the part of an independent contractor is the "collateral negligence" of which Lord Blackburn spoke and for which the employer is not responsible. It is a question of fact whether damage has been caused by collateral negligence or by a failure to perform the duty of care resting on the employer. It may be a question of some difficulty. The case will fall into the latter category if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done [46] , for in each of those situations the incurring of the risk is authorized by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor's carefulness. 1. (1939) 39 S.R. (NSW) 156, at p. 170. 2. (1975) 133 C.L.R., at p. 564. 3. As in Black v Christchurch Finance Co. or McInnes v Wardle .

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Judgment (214 paragraphs)

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