Hazelwood v Webber [1934] HCA 62

Hazelwood v Webber [1934] HCA 62 - HCA 1934 case summary — Zoe

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Roper (with him Clancy), for the respondent. The Fires Prevention (Metropolis) Act 1774, is not in force in New South Wales; the relevant section of that Act, sec. 86, was re-enacted in the same terms in the Sydney Buildings Act 1837, which was subsequently repealed (Reid v. Fitzgerald (2)). In any event those statutory provisions do not apply to fires produced intentionally or by negli- gence as here, but are limited to fires " accidentally " started (Filliter v. Phippard (3) ). The provisions of sec. 4 of the Careless Use of Fire Act 1912 are not applicable to this case. It was not the intention of the Legislature, as expressed in that Act, to restrict the civil consequences which would flow from the use of fire in any circumstances. Under the common Jaw in its original form a person was absolutely liable in respect of a fire which escaped from his land and did damage to his neighbour's land, unless he could show that its escape was due to an act of God or an act of a third party (Turberville v. Stampe (4); Jones v. Festiniog Railway Co. (5) ). That absolute liability has been modified only to the extent shown in Whinfield v. Lands Purchase & Management Board of Victoria and State Rivers & Water Supply Commission of Victoria (6) and Bugge v. Brown (7). Liability under the rule in Rylands v. Pletcher (8) still exists (Musgrove v. Pandelis (9); Clerk and Lindsell on Torts, 8th ed. (1929), pp. 385-412). The starting of the fire by the appellant was a contravention of the provisions of sec. 2 of the Careless Use of Fire Act 1912 ; he is liable for whatever conse- quences flow from that unlawful act. Fire is inherently dangerous (Whinfield v. Lands Purchase & Management Board of Victoria and State Rivers & Water Supply Commission of Victoria (6) ). _ A-higher standard of duty and liability is imposed upon an occu- Pier who uses something which is inherently dangerous. Whether 4 particular thing is dangerous or not is a question of law. The (1) (1928) V.L.R. 247, (5) (1868) LR. 3 Q.B. 733. (2) (1926) 48 W.N. (N.S.W.) 25. (6) (1914) 18 C.L.R. 606, (3) (1847) 11 Q.B. 347, at p. 358; L.R. 110. 116 E.R. 506, at p. 510.

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consequence of the escape of the fire. This prima facie liability might be answered by more than one ground of excuse or exception. 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 tule rather than in connection with the ancient strict liability for the escape of fire. Their precise nature and limits appear not yet to be well understood. In the present case, we are concerned with one only of these grounds. The fire, which travelled from the defendant's land to the plaintiff's, was lit by the defendant for the purpose of burning off stubble, a thing beneficial to the land which many farmers do. The use of fire for such a purpose is said by the defendant to be a recognized incident of the proper enjoyment of the land which, he claims, falls outside the application of the prima facie rule of absolute liability. The question whether this claim is well founded is that upon which the decision of the case must turn unless the common law has been superseded by statute. But, on behalf of the defendant, it is contended that in fact statute has abrogated or modified the common law rule in New South Wales. We do not think that this contention is correct. Sec. 86 of the Fires Prevention (Metropolis) Act 1774 (14 Geo. III. c. 78) was, we think, part of the law which, under 9 Geo. IV. c. 83, was originally in force in New South Wales. Its provisions, notwithstanding that the statute in which it occurs related to London, have been held of general application (Richards v. Easto (1)). It soon ceased, however, to be the formal expression of the law in New South Wales. Its provisions were transcribed in sec. 74 of the local statute of _ 8 William IV. No. 6, called the Sydney Buildings Act 1837. This

section should, in our opinion, also be construed as of general applica- _ tion. The repetition of the section by the colonial legislation _ operated as an implied repeal of the British enactment so far as it applied to New South Wales. But, in its turn, the statute of 1837 was repealed. The repeal was effected by the City of Sydney

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only on the ground of negligence which the jury's verdict has negatived. The full enjoyment of the occupation of land according to the reasonable standards of behaviour prevailing in a community or locality is not possible without the occupier's making some use of things which, if there be a failure or removal of physical control or restraint upon their natural behaviour, will or probably will cause injury to neighbouring occupiers. The principle upon which a prima facie absolute liability appears to be imposed by the law is that no man should at the expense of his neighbour introduce upon his own land a potential source of harm which is considered to require continual and effective control or restraint to prevent mischief. If through a failure or relaxation of control damage to his neighbour occurs, although without negligence on his part, he should indemnify his neighbour. But when, to obtain effectual use and enjoyment of land in a reasonable manner according to its character and the uses for which it is adapted, occupiers find that the introduction of such a potential source of harm is generally necessary, to insist upon the prima facie rule would be to restrict the proper enjoyment of the land or to impose a special responsibility for loss arising from a danger to which by the recognized use of the land every occupier exposed himself and other occupiers. Accordingly, when the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way. The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. In his judgment in Bamford v. Turnley (1), where the earliest expression of the ground of the qualification appears, Bramwell B. spoke of the common and ordinary use of land as opposed to use in an exceptional manner. Lord Cairns in his speech in Rylands v. Fletcher (2), by which the generality of the qualification upon the rule was established, spoke of use "in the ordinary course of the enjoyment of land" and of

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"non-natural use." Others have preferred the simple epithets "extraordinary " or "exceptional." But in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v. Lothian (1), Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from "some special use bringing with it increased danger to others" and "not merely . . . the ordinary use of the land or such a use as is proper for the general benefit of the community." 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. 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. In Australia and New Zealand, burning vegetation in the open in midsummer has never been held a natural use of land. That it should be so con- sidered does not appear to have occurred to the Supreme Court of Victoria. "If a person choose to bring fire into an arid place, he does so at his own risk, and the question whether he was guilty or not guilty of negligence as to the fire spreading does not arise" (per Stawell C.J., Sheehan v. Park (2) ). Nor to that of New Zealand. "Tt is admitted that . . . the law in New Zealand is that if a person lights a fire on his own land he must at his peril prevent its spreading to the land of his neighbours" (per Williams J., Kelly v. Hayes (3)). In Canada the view taken in the Western Provinces has been the same: see Goch v. Youschak (4), although in Upper Canada a contrary doctrine was adopted as early as 1846 (Dean v. McCarty (5)); see the judgment of Patterson J. in Furlong v. Carroll (6).

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Judgment (88 paragraphs)

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