Burnie Port Authority v General Jones Pty Ltd

[1992] HCATrans 347

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No Hl of 1992

B e t w e e n -

BURNIE PORT AUTHORITY

Appellant

and

GENERAL JONES PTY LTD

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OR PROCEEDINGS

Burnie(2) 93 2/12/92

AT CANBERRA ON WEDNESDAY, 2 DECEMBER 1992, AT 10.04 AM

(Continued from 1/12/92)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr McAlary.

MR McALARY: Yesterday, Your Honours, I was dealing with the

question of negligence and I wish to take

Your Honours to that issue in the appeal book at volume 12, page 2349, where the claim is dealt

with. The main purpose of this, Your Honour, is to just look at the different findings of fact and the
way that they were arrived at. Before I read it

all, let me just say this: as I see the position -

and I do not think there is any doubt about this -

the learned trial judge refused to find the

extended duty; he found a Donoghue v Stevenson

duty; he found a breach of that duty, but he found

that the breach was not causative.

Now, those findings can be obtained by going

to the appeal book at page 2349 and the case here

is the case brought by the plaintiff against the

Authority. The case was argued on the basis of

negligence, relying:

principally upon the decision of the High

Court of Australia in Stevens v Brodribb.

That is to say, notwithstanding that, as is

common ground, WS was an independent

contractor engaged by BPA, nevertheless the

nature of the work and the relationship of BPA

to WS and GJ during the course of it was such

as to create a duty of care on the part of BPA

towards GJ not different from what it would

have been if WS had been an employee of BPA.

And that was the argument in the first submission.

His Honour then goes on to examine Stevens case and

points out that there it was held in a novel

finding for the state of the law at that time, that

there was a duty of care owed towards the

independent contractors in relation to the
provision of a safe system of work. The crux of

the matter is at line 19, the position was such.

There was: 

a duty towards two of those contractors to

provide a safe system of work, in which they
could act interdependently in carrying out

their parts of the overall operation -

Your Honour then the Chief Justice with whom

Mr Justice Brennan and Deane agreed points out at

the bottom of the page:

there is a need for him to give directions as
to when and where the work is to be done and

to co-ordinate the various activities -

Burnie(2) 94 2/12/92

And it was ..... the duty arose. Turning to the next page the trial judge sets out the factual situation in Stevens v Brodribb. At the bottom of the page

he said:

it is argued that the same principle applies

by reason of the fact that BPA remained in occupation of Stage 2 of the building, and

retained control of the co-ordination of the

construction operations and control of the

site.

The evidence relied upon was from material - I will

need to come back to the evidence, Your Honour, but

what the trial judge points out is that the

Authority co-ordinated the contractors and that the

Authority was responsible for the site. I will

come back to that evidence in due course shortly,

but it is all evidence called by my learned friend.

And then he said "Overall, I do not accept the

argument

MASON CJ:  Why would you be corning back to the evidence,

what is the reason for corning back to it?

MR McALARY:  I thought I would go quickly through the

judgment, Your Honour.	The different findings are
interconnected in this case.	The two
findings - - -

MASON CJ: Yes, I am not suggesting you ought to go to the

evidence now, I am just wondering why it is

necessary to go to the evidence in view of the fact

that you have findings here.

MR McALARY:  Perhaps it is not, Your Honour, may I consider

that. But I wanted to finish the judgment with a

view to showing the findings and some problems of

what we submit is inconsistency. Now, at the

bottom of the page the trial judge says: Overall, I do not accept the argument

that BPA in relation to the cold store

construction was in an analogous position to

that of Brodribb in Steven's case. The two

cases are clearly distinguishable on the basic

facts.

Then he sets out Brodribb v Stevens, what the essence of the matter was, turns to page 2352 about

line 5, he turns to the current position in this

case:

The relationship of BPA to WS and, so far as

is material, OGP, was quite different. It was

not carrying on its ordinary business

Burnie(2) 95 2/12/92

operations with the aid of independent

contractors instead of its own employees.

Instead, it was a principal who had engaged an

independent contractor to perform an operation

in which the contractor was the skilled

operative, and the principal relied upon the
contractor to carry out the agreed work within

the terms of the contract. That is to say,

the relationship was that of principal and

independent contractor in the traditional

sense. However, because there was no head

contractor, and the principal was carrying out

part of the operation with its own day labour
force, and was performing the necessary

function of coordinating the operations of the

two independent contractors and its own day

labour force, it necessarily had an ongoing

role of liaison during the construction. In

my opinion, there was not the requisite

proximity relationship between BPA, WS and GJ

to provide the basis for holding that a duty

of care was owed by BPA to GJ in respect of

the way in which WS carried out its contract.

Your Honour, may I just pause for a moment to

say that it is quite clear, of course, that

Stevens' case was not in any way like this case,

that the issue that was sought to be put was that

the principles recognized in Stevens' case were

applicable in this particular case and that one did

not look to the authority as a person who was

simply a port authority and carrying out those sort

of functions, but this was an authority which was
engaged in a building operation and it was indeed

doing exactly what it would have done - what a head

contractor would have done. Had the Authority

employed a head contractor then the head contractor

would have been carrying out all the functions

which the Authority itself was carrying out.

If, as between a head contractor and a series

of subcontractors, duties of care can arise out of

the obligation to co-ordinate, then, if the owner undertakes the function of the head contractor he

would have attached to him in that relationship

exactly the same type of situation that attracted

the duty of care in Brodribb v Stevens.

GAUDRON J:  How does any co-ordinating role bear upon what

in fact happened in this case?

MR McALARY: That, Your Honour, in three ways. Largely,

because like a head contractor the Authority should

have dealt with the question of fire control. That

takes one to the standard. The Authority did deal

with the question of having on the site an

appropriate number of extinguishers. I have a

Burnie(2) 96 2/12/92

finding in my favour in the parts that I am about

to come to, that there was a Donoghue v Stevenson

type duty and that there was a breach of that duty,
the breach being the failure to ensure that there

was adequate fire extinguishers in the roof void.

That having come to their attention, they having

directed the contractor to do it and the contractor
just having ignored it.

So the two issues in respect of which we say, and here I have the finding, that there was a duty

and a breach of the duty is on the

extinguishers - I have the finding in my favour.

On the question of the compliance with the standard

I have not a finding in my favour. That was

treated as non-causative, and indeed it was said

that the obligations under the standard were really
a work of supererogation or extreme caution. That
is the way in which we say the co-ordinating

obligations which extended to, not just -

GAUDRON J: It is not really co-ordinating; it is really

site management?

MR McALARY: That is right, Your Honour. If. one looks at -

going back to the passage I was reading before, the

port engineer was responsible for the site. That

is so found at page 2351, and his responsibility

for the site extended not just to co-ordinating,

but doing all those sort of things which a head

contractor does. In other words, overall

responsibility for the integration of the operation

remained with the Authority, and that is the way we

put that, Your Honours.

BRENNAN J:  Mr McAlary, do you put any reliance on Honeywill

& Stein v Larkin Bros?

MR McALARY:	No, Your Honour.
BRENNAN J:	Why not?
MR McALARY: Well, I took it that that authority had been

disposed of in this Court in earlier decisions.

BRENNAN J:  It had been disposed of in terms of a doctrine of extra hazardous operations.

MR McALARY:  I am sorry, Your Honour. I took it when you

said Honeywill & Stein you were referring to the

doctrine of extra hazardous acts.

BRENNAN J:	No, what I was referring to was the adoption of the statement that the principle is that if a man
does work on or near another's property which
involves danger to that property unless proper care is taken, he is liable to the owners of the

Burnie(2) 97 2/12/92

property for damage resulting	to it from the
failure to take proper care;	and is equally liable
if, instead of doing the work	himself he procures
another whether agent/servant	or otherwise to do it
for him.

MR McALARY:  Yes, Your Honour. And coming to that, if I

might, His Honour the Chief Justice yesterday

directed my attention to two passages; one in

Torette House and the other in Mcinnes v Wardle,

which appear to hint at, to use His Honour's

phrase, a wider principle - - -

McHUGH J: That is what I had in mind and was what I

regarded as nuisance; that they are really cases of

nuisance.

MR McALARY: Well, Your Honour, can I say this. One will

find an interesting discussion in this fire setting

in Mason v Levy Auto Parts. It is on the list of

authorities - I am running away from what I was

talking about, but it discusses that very

principle. It discusses it in connection with the

earlier decision in Musgrove v Pandelis where there

was no escape of fire; in Mason v Levy there was an

escape of fire. Mason v Levy justifies Musgrove v

Pandelis on the the basis of the non laedas

principle, and it appears that on that principle

also in the Collingwood case it was justified.

So one can find - the way it is put is that

Rylands v Fletcher itself is based on the old

principle utere tuo ut alienum non laedas - my

Latin is getting bad - but, Your Honour, the steps

being that principle exists before Rylands v

Fletcher. Rylands v Fletcher is justified by that

principle and is but an exemplification of it.

Other exemplifications are to be found elsewhere.

Musgrove v Pandelis is not a Rylands v Fletcher

case because there is no escape, but it is a non

laedas case. It is so acknowledged in the

Collingwood case and so followed in Mason v Levy
Auto Parts.	Can I come back to that, Your Honour?

McHUGH J: Yes, certainly.

MR McALARY:  That seems to be the flow and what Your Honour

Justice Brennan pointed out to a moment ago is in

accordance with what Your Honour has been saying.

McHUGH J:	What about your pleadings?
MR McALARY:	I beg your pardon?

McHUGH J: What about your pleadings, to rely on this

doctrine, however you like to classify it? It does

not seem to be there.

Burnie(2)	98	2/12/92
MR McALARY:	I have not looked, to be quite honest.	I

thought the pleadings would have been wide enough

to cover any form of escape of fire.

McHUGH J: It is not like a New South Wales common lawyer,

brought up under the old system of pleading,

Mr McAlary?

MR McALARY: 

Your Honour, I liked the old system of

pleadings, they made you do some thinking.
Nowadays you get a great heap of facts hurled at

you and you have got to find it in them. But,

frankly, Your Honour, I have not looked and I will

not make guesses in answers that I cannot answer

factually.

MASON CJ: It just goes to show, we are more subtle than

Queensland - - -

MR McALARY:  Can I go back from that discursion, back to

what I am dealing with in the terms of negligence?

That takes me, Your Honours, to the bottom of

page 2352. There His Honour sets out part of the

SAA Welding code. We have had photocopies of that

photostated. Could I hand to Your Honours seven

copies.

It is not asserted, Your Honours, that this is

a statutory instrument or anything of that

character. I presume that Your Honours are all

familiar with the Standards Association of

Australia and that it lays down safety code

requirements for a very large number of activities.

This one is a safety code requirement in relation

to the Cutting and Welding Safety Code, the

relevant parts of it, for present purposes, is

firstly page 5, section:

1.4.3 Responsible Officer - a person with a

satisfactory knowledge of potential hazards

and precautions necessary to provide adequate

protection against fire and explosion hazards	association with arc or flame cutting, flame
heating and arc or gas welding operations. It
shall be the responsibility of the Responsible
Officer to determine what hazards exist and
which of the appropriate rules in this code
apply in any particular set of circumstances.

So that is the key requirement if one is to take

relevant safety precautions. Hazardous locations

are defined at the top of page 6 and they are:

Locations in which ..... highly flammable

substances are ..... handled -

and that is sufficient for present purposes.

Burnie(2) 99 2/12/92

The appointment obligation arises on page 7 in

relation to 2.1:

APPOINTMENT OF RESPONSIBLE OFFICER A

Responsible Officer (see Rule 1.4.3) shall be appointed to have charge of fire precautions

in all arc or flame cutting, flame heating and

arc or gas welding operations. He shall be

responsible for the safe execution of all such

operations and he shall be given authority to

enforce this Code, with respect both to

employees and to outside contractors and

workers.

And, Your Honours, there is a provision dealing

with commencement of work:

Cutting, heating or welding operations shall not be carried out in or near a hazardous

location until an authority has been issued in

accordance with Rule 2.4 and until the

Responsible Officer is satisfied that the provisions of the authority as issued have

been complied with.

I should have mentioned, Your Honours, that he has

to inspect the site and then he has to issue a

permit for it to be done and he has to check and

see if they are complied with.	One of the relevant
ones is, perhaps, 3.6.1:

Where it is not practicable to move the object

to be cut, heated or welded as recommended in

Rule 3.1, the Responsible Officer shall,

before operations are commenced on work in

situ, ensure that all flammable materials

(such as cotton, jute, canvas or other

textiles, loose wood, rubbish, oils, painting
material and all other such portable
materials) are moved to a safe distance but

not less than 10 m.

Your Honour, the requirements are set out in
detail.	The relevant question is: was there any -

I am sorry. There is a provision in it which says,

and I forgot to refer Your Honours to this, that -

it is the bottom of 2.1 on page 7:

Where work is being carried out by a

contractor, appointment of the Responsible
Officer shall be by negotiation between the

principal and the contractor.

Now, here the work was being carried out by a

contractor, Wildridge and Sinclair, and accordingly

the appointment of a responsible officer envisaged

Burnie(2) 100 2/12/92

by the code was by negotiation between those two.

The matter was never even considered or dealt with.

Could I then go back to the appeal book,

Your Honours? Part of the relevant provision is

set out at the bottom of 2352. His Honour makes a

finding at 2353:

In any case, I have already held that failure

to appoint a responsible officer was not in
itself a negligent omission on the part of ws,

or if negligent was not causative. A

fortiori, omission by BPA to discuss with WS

the appointment of a responsible officer would

not be a negligent omission. I so hold.

Now, the issue, of course, is not, Your Honour, an

issue of discussion. You have a discussion for the

purpose of dealing with the appointment, the

question of the appointment, rather than just mere

discussion.

The finding in connection with Wildridge and

Sinclair and in relation to the appointment of a

responsible officer is at page 59, that is at

page 2321 of the appeal book, if I can go back to

that. Perhaps I should just take Your Honours

back, to start this, to page 2316. This deals with

the liability of Wildridge and Sinclair to General

Jones. The particulars of negligence are set out

at 2316 and 2317. All of those matters were found

affirmatively in favour of General Jones other than
particular (4)(i) on page 2317, that is the

responsible officer was not found in our favour. That finding is at the top of page 2318 where

His Honour says:

I find that WS was negligent in all these

respects, except particular (4)(i).

Then at 2318 he seeks to deal with the appointment
of a responsible officer.	He sets out the

functions of the code and matters of that character

on that page and in the next page: the safety

precautions. Then his finding and discussion of

the matter is at the bottom of 2320:

I am inclined to think that this

requirement in the Code that a responsible

officer be appointed, applying as it purports

to do to cutting, welding and similar

operations "being carried out in any location,

hazardous or otherwise, during manufacturing,

construction, alteration, maintenance or

demolition operations ... ", is in the nature

Burnie(2) 101 2/12/92

of a counsel of extreme caution, and is

intended, as the preface to the Code states

" ... to afford guidance as to precautions which

should be taken to protect persons and

property against fire ... "

I accept that with respect, Your Honours,

except that this was an extremely hazardous

situation and it was not a small or trivial welding

job that was being done, it was a major welding job

involving the installation of all this

refrigeration equipment on top of the isolite

structure and with isolite lagging on the

refrigeration.

Going back to 2321, it deals with what is said

by different witnesses as to the relevance of the

code, and His Honour says at line 9:

I take the view, therefore, that the contents of the SAA Code provide useful guidance as to

what safety precautions against fire should in

general be taken in relation to welding and

cutting operations, but whether failure to
observe any particular precaution in the Code

constitutes negligence depends upon all the

circumstances of the case, and is of course a

matter for the tribunal. In this case, for

example, I am not persuaded that failure to

appoint a responsible officer was negligent,

or if negligent, was causative. The fire

occurred because of failure to take an

extremely simple and easy precaution, which

any competent welder should without a second

thought have deemed it necessary to take;

namely, to remove the cartons of Isolite well

out of possible range of any prospective

welding operations.

I will not seek to read the balance of that

material against Wildridge and Sinclair, that seems

to be the only part that is irrelevant in relation

to the Authority. Could I then go back to the

material that I was previously dealing with, and I

am now moving to page 2353:

The other substantial allegation is that

BPA failed to provide any or any adequate

means by which a fire in the roof void could

be fought, controlled and extinguished.

Mr Berwick's evidence was that some six or

seven days before the fire he visited the site

and asked WS's senior employees,

Messrs Chilcott and Whyman if they were

providing fire extinguishers on the site.

They told him that they had fire extinguishers

in their workshops at Devonport, and that they

Burnie(2) 102 2/12/92

would bring them over to the site. Mr Berwick

also instructed his foreman, Mr Clark, to
place a fire extinguisher in the roof void in

order to cover any operations carried out by

BPA's own people. Mr Cooper gave evidence

that Mr Berwick asked him also to see that a

fire extinguisher was placed in Room 4, but

when it was put in place it was thought more

useful to put it in Room 5, which was done.

It may be that this was the extinguisher which

was present there when the fire took place.

The evidence indicates that Berwick did not

follow up the undertaking by Chilcott and

Whyman to have extinguishers placed in the

roof void, and none was put there. In my
opinion, the contractual arrangements under
which BPA was acting as overall co-ordinator
of work on the site placed upon it a

co-ordinate responsibility with WS, and a duty

of care to GJ ..... to see that adequate fire
fighting equipment was placed in the roof and

it failed to perform that obligation.

With respect, Your Honour, we take that as a

finding of duty and a finding of breach of that

duty. Then His Honour says:

There is no evidence as to how many fire

extinguishers would in the ordinary course

(that is, not anticipating such a disastrous

fire as was in the event brought about by

negligent performance of the welding operation

by employees of WS) have been considered

adequate, but on the evidence as a whole I

infer that two would have been adequate.	I
make this inference partly from seeing the

video in which the two extinguishers kept for

the purpose by the associates of Dr Cherry who

carried out the experiments in which it was

necessary to extinguish the fire which they

were able to start. Two extinguishers coped

very effectively with that fire. However, in my opinion, notwithstanding

that BPA failed to perform its duty of care to
see that adequate fire fighting equipment was

installed in the roof void, such failure was

not causative of damage resulting from the

fire. The fire was so intense and violent

within such a short time after it was first

seen by Lillico and Anderson that if there had

been two extinguishers present, or even more,

the probability is very strong that they would

have been wholly inadequate to quench the

fire.

Burnie(2) 103 2/12/92

So the finding is that after the fire was seen, two

would not have been sufficient. He says:

Accordingly, I find there was no effective

negligence on the part of BPA in relation to

failure to provide adequate fire fighting

equipment.

BPA's position is different to that of WS

in this respect, because I have held that the

failure of WS to provide such equipment was

negligent when considered in conjunction with

its failure to watch the site after welding

ceased.

Now, with respect, Your Honours, the obligations

which arose under the SAA code - one of them was to
watch the site after welding had been carried out.

If you are complying with the code, that would have been done. You would comply with the code by

appointing an officer who was responsible for

seeing that it was carried out. Certainly

His Honour has found that having regard to the

relationship between the Authority and the

plaintiff, there was a duty of care. Not a

non-delegable duty, but he has found the ordinary

Donoghue v Stevenson duty to take care, and in

respect of the areas in which it should have taken

care he has found that it did not take the

appropriate care in relation to the provision of

appropriate fire fighting equipment. He excalpates

that finding by saying, "Well, not an adequate

watch was kept". The inadequacy of the watch meant

that by the time anything was seen the fire would

have been controlled by nothing. But, the

inadequacy of the watch really goes back to the

failure to ensure that the whole thing has been

done safely and properly, having regard to the

obligation to have responsible officers there and

to check that out.

But there is a further important factor that

needs to be brought to account, and that is that

isolite has built into it a retardant chemical.

That retardant chemical will hold the flame. On

the first page of my submissions at paragraph 4,

once isolite is alight it burns fiercely increasing

as a geometrical progression. During manufacture

retardant chemicals are inserted which inhibit

commencement of burning but have no effect once

ignition starts to occur.

There is a great deal of evidence which shows

that when one - if you had a sheet of isolite and

you put a match or a torch or a flame up to it the

isolite shrinks away from the flame. The flame has

to pursue it, but once it pursues it for a while

Burnie(2) 104 2/12/92

then you get the isolite burning and then you get

this quick progression of the fire.

In this particular case the fact as found by His Honour was that the fire got started in the

cardboard. It was a cardboard fire at first. Once

the cardboard started to build up sufficient
ignition and lifted the ambient temperature
adequately the isolite can no longer draw away from
the flame because the flame is pursuing it and then

the isolite ignites and from that point on you move

into a situation where the fire progresses as a

geometrical progression.

Had there been an adequate watch, no problem.

It is really the failure to keep an adequate watch

that is the problem and indeed when one goes to

look at the finding in Wildridge and Sinclair and

why he found negligence in relation to that, if you

go back to the bottom of page 2322, I think it is,

he refers to the paragraph:

S.6.3 of the Code provides that the

responsible officer shall arrange for a watch

to be kept, to guard against smoldering fires

inflammable or combustible materials, at and

around the site of cutting, heating and

welding operations for at least one hour after the operations have ceased. The corresponding

provision in the New South Wales rules

provides:

"(f) After completion, watch the scene of work

for half an hour for smoldering fires, and

inspect any adjoining rooms and floors, above

and below."

To observe the substance of, at least, the New

South Wales Rule would have been a very

sensible precaution in the present case, and

might have resulted in the signs of fire being

seen much earlier than they were, in which

case two fire extinguishers promptly deployed

might have been effective. In fact there is
no evidence that any watch was kept, and I
infer from the evidence of Lillico and

Anderson that none was.

Well, Your Honours, we would say, on the issue of

negligence, that a case is made out on both heads.

We would invoke the extended duty initially. If

the extended duty is available to me - and that is a finding of law, of course, to be made, the facts

having been found - if it is available to me, then I am entitled to point the negligence of Wildridge

and Sinclair, and that would dispose of the matter

in my favour.

Burnie(2) 105 2/12/92

On the issue of whether the extended duty is

available to me - there is little point in me

taking Your Honours back to what Your Honour the

Chief Justice wrote in Kandis.	I have read it and
I cannot add anything to it.

Without purporting to offer any definitive

view of the matter, the way in which it appears

from Your Honour's words, and reading the cases to

which Your Honour refers, that the non-delegable

duty situation arises out of the relationship

between the plaintiff and the defendant. That is

the key issue. There are articles and discussion

which suggest the contrary, but one fails to see

how they are logically justified.

As we see it, the core situation in which the non-delegable duty arises is the case where there

is what I would describe as an imbalance between

the position of the plaintiff and the defendant in

relation to the control that can be exercised by

one or the other over the duty type situation, or

the situation out of which the damage arises.

If you look for the moment, going back to the

original source of the concept, that is, in Wilson

and Clyde Coal Company v English, you there have a

significant imbalance between the position of an

employee and the position of the employer in
connection with the organization of a safe system

of work, because the employee must take the system

as he finds it, as it is given to him.	The
employer lays it down or fails to lay it down.	So
you have what is a significant imbalance.	One has

full capacity to control the situation; the other

has none. That seems also to be present in

connection with the Hospital cases, and I do not

wish to get involved in Ellis v Wallsend and that

area where we are defining the ambit of the

hospital duty.	But here again you have a patient
and you have a hospital.	One is in control and the
other is really the passive recipient of care. In	the child case you have very much the same sort of
situation - the pupil and the school. The school
is in control; the pupil is a passive recipient.

The same type of concept seems to be involved,

though not so clearly, in the occupier cases.	I
say that because I am an occupier.	I invite my

learned friend to my home, or I invite him to my

factory, or I invite him somewhere. I am in

control of the factory and there is an imbalance

again in the situation because I am capable of

exercising control. He is a person who simply

attends.

Burnie(2) 106 2/12/92

The same type of situation is referred to in

the Victorian case where the - I have forgotten the
name of it now, Stawell, I think - landlord was
held responsible for the damage to the furniture of

his tenant. It is fairly close to this type of

situation. The landlord was undertaking a

significant operation and he allowed that operation
to be conducted in such a way that the tenant's

furniture was damaged.

That throws up what seems to me to be the

second relevant consideration, and that is

reliance. There is a significant area of reliance in all of these situations. You start off with an imbalance in the position of the parties to control

or protect the situation, then you move from that

to the fact that one is relying upon the other, to

the knowledge of the former. So it is reliance by

one on the other to the other's knowledge. And you

then move, probably, finally, to what I would

submit is an assumption of responsibility by the

defendant in carrying the matter through, knowing

that the other is relying on him to take care and

also knowing that the other can do nought in his

own favour.

Your Honours, that is the best that I can

offer to Your Honours in connection with this

doctrine and I do not know that I will carry it any

further. May I just tell Your Honours that

yesterday I found an article which is not on the
list of authorities and it has just come out this

year. It purports to discuss this matter.

Your Honours, it is called The Journal of Contract

Law, volume 5, No 1 and No 2. The heading is "Non

Delegable Duties. Liability for the Negligence of

Independent Contractors", by Mr J.P. Swanton. It

breaks into two sections, part 1 - - -

GAUDRON J: It is Miss Swanton.

MR McALARY:  I beg your pardon. I am caught in sexist - it

shows how little I know about it. Anyhow, it is

Miss J.P. Swanton. It seeks to address the strict

duty and it starts off by saying that it is going

to explain it all and it is going to provide

criteriarn by reference to which one can analyze the

material. I did not really think it achieved its

stated objective but I refer Your Honours to it

since it is a 1992 document. But I am certainly

not going to read it. That confirms my sexist

approach.

Your Honour, that is all I wish to say about

negligence. Could I come back to the matter that I
discussed shortly with Mr Justice McHugh, and it

really arises out of Your Honour the

Burnie(2) 107 2/12/92

Chief Justice's comment to me yesterday that

Sir Owen Dixon, in both Torette House v Berkman and

in Mcinnes v Wardle, was looking at a wider duty.

The two passages, might I just take Your Honours to

them again to refresh your recollection. I think

Your Honour the Chief Justice first put this to Mr Barnard in course of argument out of Torette

House - - -

MASON CJ:  I think the passages have been read on more than one occasion, have they not? They are short, they are only one sentence, are they not?

MR McALARY:  Yes. In Torette House at page 655:

But the case cannot be treated as one where an

occupier allows an independent contractor so

to use or deal with his premises that they

become a source of harm to his neighbour. In other words, the suggestion is that if it were

otherwise then there might be a liability. And in

Mcinnes v Wardle at 522 - it was a passage I think

I had read to Your Honours previously, perhaps

without paying adequate attention to it on my part:

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 ..... Such

a finding involves the appellant in

responsibility for the introduction of fire

upon the premises he occupied.

Now, what Your Honour said does appear to be borne

out by reference to the English case of Mason

v Levy Auto Parts, and I say that because there

Mr Justice MacKenna was of the view, after some analysis, that there was a liability of a wider

character than was involved in Rylands v Fletcher,

exemplification of that wider liability, and one	and that Rylands v Fletcher seems to be simply an
might say that Christchurch Finance v Black was of
a similar exemplification.

McHUGH J: Is not your difficulty that in Mason

Mr Justice MacKenna invoked the doctrine of

non-natural user?

MR McALARY:	Yes, I know, Your Honour, but unnecessarily.
McHUGH J:	Which is quite different from what Sir Owen Dixon

said in - - -

Burnie(2) 108 2/12/92

MR McALARY:  Yes, I agree with that, Your Honour, but, with

respect, unnecessarily, in my submission. I accept

what Your Honour says that, if I just went to that

and said I rely on that I would be in trouble.	I
will come to the non-natural user feature as a
second feature, but at the moment I am seeking
simply to deal with whether there is the wider
doctrine.

Let me go to the Mason case, (1967) 2 QB, if I

could. It does, to some extent meet one question

that Your Honour Mr Justice Brennan asked yesterday

as to whether there was any case involving a fire

in combustible material.	Your Honour put the
question to me yesterday.	I was thinking of a fire

started by a match or something of that character
in combustible material. This case is not of that

character.

What happened was that the defendants had a

car yard and in the course of it they stored large

quantities of combustible materials in the yard

which had a common boundary of 210 feet with the

plaintiff's garden and they provided fire fighting

equipment and access lanes, perhaps a little

narrow. A severe fire of unknown cause started in

the yard and it was detected in the early stage but

the fire fighting equipment was ineffective to

control it. It spread. The plaintiff brought an action and the defence was section 86 of the Fire

Prevention Act.

Could I go to the third holding, because the

first two simply deal with onus matters.

That, on the principle sic utere tuo ut

alienurn non laedas, the defendants were liable

to the plaintiff if they brought on their land
things likely to catch fire, and kept them

there in such conditions that, if they

ignited, the fire would be likely to spread to

his land, and they did so in the course of

some non-natural use of their land, and the

things ignited and the fire spread.

I accept Justice McHugh's point but I wish to

deal with it with that caveat.

Accordingly, since the defendants had brought

into their yard combustible materials which

were kept in such conditions that if they

ignited the fire would be likely to spread to

the plaintiff's land, and the defendants' use

was non-natural, they were liable to the

plaintiff in damages.

Burnie(2) 109 2/12/92

Without reading the case in full, let me take

Your Honours to page 540, about B. His Honour then

seeks to deal with the case as he sees it:

As I see it, the plaintiff's real case against the defendants is in the allegation

that they "so used their land by cluttering it

with combustible material closely packed that

the plaintiff's land was endangered."

I could adopt the cartons of isolite and the stacking of them in close proximity to each other

as being a comparable matter. Obviously, here the combustible material was spread over a large area.

This was a much smaller area in this case, the stack of combustible material was much smaller, it

was about six feet high and I have forgotten how

long it was - 12 feet long or something. But you

do not have to show non-natural user over the whole
land, it is only a question of a non-natural user

over a relevant part. His Honour continues:

That, like the plaintiff's other allegations,

is put against the defendants in alternative

ways, including negligence, nuisance, allowing

a dangerous thing, namely, fire, to escape

from their land, and as a failure so to use

their land as not to harm the plaintiff.

Then he seeks to consider the last of those

two heads:

beginning, as one must, with Musgrove v

Pandelis.

Now, Your Honours, he says the facts are too well

known to require repetition. Let me remind

Your Honours that that was a case where there was a

motor car standing in a garage and they were

attempting to start the thing with the crank handle

and they were not making much headway, so they just

opened up the carburettor and when the carburettor
was opened they tried to fire it that way.	A

little fire started, as one might expect, but the

gushing of petrol out of the tank continued and the

fire grew large.

Now:

Bankes LJ reasoned thus: (a) there were at

common law three separate heads of liability

for damage done by fire originating on a man's

property, "(i) for the mere escape of the fire

that is the ignis suus -

Burnie(2) 110 2/12/92

(ii) if the fire was caused by the negligence

of himself or his servants, or by his own

wilful act; (iii) on the principle of Rylands v Fletcher.

Then Lord Justice Bankes refers to:

Filliter v Phippard decided that the statute -

that is the statute ..... -

did not cover the second case. (c) "Why,"

Bankes LJ asked, "if that is the law as to the

second heads of liability, should it be

otherwise as to the third heads, the liability

on the principle of Rylands v Fletcher?"	The
answer, I would have said with respect, is obvious enough.

This is His Honour Justice Mackenna.

There were not three heads of liability at

common law but only one. A person from whose

land a fire escaped was held liable to his

neighbour unless he could prove that it had

started or spread by the act of a stranger or

of God.

So the statute was said to be directed to dealing

with the ignis suus position.

Filliter's case had given a special meaning to

the words "accidental fire" used in the
statute, holding that they did not include

fires due to negligence, but covered only

cases of "a fire produced by mere chance, or

incapable of being traced to any cause". But

it does not follow, because that meaning may

be given to "accidental", that the statute

does not cover cases of the Rylands v Fletcher

kind where the occupier is held liable for the

escape though no fault is proved against him.

In such cases the fire may be "produced by

mere chance" or may be "incapable of being

traced to any cause." Bankes LJ was making a

distinction unknown to the common law, between

"the mere escape of fire" (which was his first

head) and its escape under Rylands v Fletcher

conditions (which was his third), and was

imputing an intention to the legislature of

exempting from liability in the former case

and not in the latter. In holding that an

exemption given to accidental fires, "any law,

usage, or custom to the contrary

notwithstanding," does not include fires for

which liability might be imposed upon the

principle of Rylands v Fletcher, the Court of

Burnie(2) 111 2/12/92

Appeal went very far. But it is my duty to

follow them unless Musgrove's case has been

overruled, or unless its principle does not

apply to the facts proved here.

It is a complex and tortuous discussion, but it is

fairly clear, I think, with respect, where we are

going. His Honour then says that Musgrove's case

is not overruled, and that is the next paragraph;

it is reaffirmed, but there are reservations about

two things: one, whether or not in Musgrove's case

you could say there was an escape, because the fire

never left the premises; and the second is whether

or not a motor car fell within the non-natural user

concept. Those matters were said to be requiring further consideration by the Lords in due course. Coming to the bottom of the page:

What, then, is the principle? As

Romer LJ in Collingwood's case pointed out, it cannot be exactly that of Rylands v Fletcher.

This is the principle on which Musgrove v Pandelis

was decided.

A defendant is not held liable under Rylands v

Fletcher unless two conditions are satisfied:

(i) that he has brought something onto his

land likely to do mischief if it escapes,

which has in fact escaped, and (ii) that those

things happened in the course of some non-

natural user of the land. But in Musgrove's

case the car had not escaped from the land,

neither had the petrol in its tank. The

principle must be, Romer LJ said, the wider

one on which Rylands v Fletcher itself was

based, "sic utere tuo "

If, for the rule in Musgrove's case to

apply, there need be no escape of anything

brought onto the defendant's land, what must

be proved against him? There is, it seems to
me, a choice of alternatives.	The first would

require the plaintiff to prove (1) that the

defendant had brought something onto his land

likely to do mischief if it escaped; (2) that

he had done so in the course of a non-natural

user of the land; and (3) that the thing had

ignited and that the fire had spread. The

second would be to hold the defendant liable

if (1) he brought onto his land things likely

to catch fire, and kept them there in such

conditions that if they did ignite the fire

would be likely to spread to the plaintiff's

land; (2) he did so in the course of some non-

natural use; and (3) the things ignited and

the fire spread.

Burnie(2) 112 2/12/92

We would be able to say, "His Honour adopts

the second test". He said:

The second test is, I think, the more

reasonable one. To make the likelihood of

damage if the thing escapes a criterion of

liability, when the thing has not in fact

escaped but has caught fire, would not be very

sensible.

So I propose to apply the second test,

asking myself the two questions: (i) did the

defendants in this case being to their land

things likely to catch fire, and keep them

there in such conditions that if they did

ignite the fire would be likely to spread to

the plaintiff's land? If so, (ii) did the

defendants do these things in the course of

some non-natural user of the land?

He answered those questions both in the affirmative

in that setting. Well now, Your Honours, with

respect that does follow what I think Your Honour

the Chief Justice put yesterday and it follows the

same line. Could I take Your Honour just for a

moment to the judgment in the Collingwood case,

(1936) 3 All ER, and the discussion of this matter

is in Lord Justice Romer's judgment at 208. Having

agreed with Lord Wright, he says:

I only desire to add this. I think at some

time it will be desirable if the House of

Lords would consider the case of .Musgrove v

Pandelis, so far as the decision in that case

was based upon Rylands v Fletcher. Of course

the rule in Rylands v Fletcher, as is well

known, is a rule which relates to the escape

from somebody's premises of a dangerous animal

or thing brought by the owner upon those
premises, and does not relate to a case like

the present, or a case like the Court of

Appeal had to deal with in .Musgrove v

Pandelis, where there had been an escape of nothing from the defendant's premises. But the rule in Rylands v Fletcher, as has

frequently been pointed out, is based upon a

much wider principle, namely the principle

"Sic utere tuo ..... " and there is no doubt in

.Musgrove's case the Court of Appeal were

referring to Rylands v Fletcher as being based

upon that wider principle. But what will have

to be considered is whether .Musgrove v

Pandelis, so far as it purports to be based on

that larger principle, can be supported seeing

that the decision involves these two

propositions, (i) that a motor car is ..... a

dangerous thing to bring into a garage, and

Burnie(2) 113 2/12/92

(ii) that the use of one's land for the

purpose of erecting a garage and keeping a

motor car there, is not an ordinary and proper

user of the land.

Both those propositions would have struck one as

strange, even in 1919, if the English films of

historical character are correct in portraying

means of locomotion at that time. But what is not

suggested is that the wider principle does not

exist; that Musgrove v Pandelis is not an example

of it and it really is the explanation of

Christchurch Finance v Black, because it is

specifically referred to there and we would submit,

with respect, that it is available here.

I would indeed rely on Mason v Levy Auto

Parts. It was, in our submission, having regard to

the logic of that approach, unnecessary to insert

the requirement that the use should be a
non-natural use. If we are looking to the essence

of the principle sic utere tuo what we are looking

at is something likely to cause mischief, or likely

to cause trouble, and it is the bringing of that on
to the land and the keeping of that in a way where,

if it does escape, it will cause trouble, which

gives rise to the problem and that seems to be the

wider principle and it has that degree of

acceptance to which I have referred Your Honours.

Alternatively I would have said, in relation

to this case, the non-natural user, if that be the
relevant requirement that I have to satisfy,
consists, as Your Honour Justice Gaudron put to me

yesterday and which I probably did not fully

appreciate at the time when Your Honour put it, but

it consists in the stacking of the isolite in a

large stack. My memory may be wrong and I did not

have time to check it, but if I recall correctly it

was three cartons of isolite; they were about six

feet high; they stretched between the two RSJs and
they were quite long.	In other words there were 20

or 30 cartons and these things were not little

cartons that you could hold in one hand.	They were
a full gripper.

That, of course, is a very significant hazard because what you have is an almost self-reinforcing

situation. It was what they thought the atomic

bomb might do. It might go on blowing and

exploding in a progressive situation - that was

going back to the early 1950s. But this was a

situation where you had 20 or 30 cartons. If one

got going that would have perhaps burnt itself out

within a limited period of time and do a limited

amount of damage. But here the large number and

the size of the stack meant that the whole thing

Burnie(2) 114 2/12/92

became self-reinforcing, the fire became enormous,

and then it transferred itself into the isolite

structure along which it was situated. That, in

our submission, would be the abnormal user.

We would submit, with respect, that the use of the blowtorch is really the same as the use of the

match when you light a fire in an area where there

is combustible material. That is the Mcinnes v

Wardle-type situation. If the lighting of the fire

is for relevant domestic purposes, that is one

situation, but if you light it and you fail to look

after it, that is the negligent use, negligently

allowing it to spread, then you end up with the

same - but that involves me back in the issue of

negligence and the other part. I am sorry, it was

a welder's torch, my learned junior says, that I

had forgotten.

Your Honour, the only other matter I wanted to

refer to and that shortly, because I see that I

have spoken considerably longer than I anticipated

yesterday - that decision of Wise I looked at last

night.

MASON CJ:	Which one?
MR McALARY:	Wise Bros Pty Ltd v The Commissioner for

Railways. The important thing about that, with

respect, is, I think, the fire was of unknown

origin. It was a matter of conjecture how the fire

started. That is so stated in the judgment of

Mr Justice Starke at page 71 - - -

MASON CJ:  And also I think in the judgment of the

Chief Justice.

MR McALARY:  Yes, Your Honour, that is the relevant point,

with respect, and we say the outbreak of a fire of

unknown origin does not invoke the rule in Rylands

v Fletcher, no more than it could be invoked in

relation to Goldman v Hargrave where the fire	started in the top of the tree by a strike of
lightening.

MASON CJ:  Mr McAlary, there are two things I should draw to

your attention. The first is in connection with a

passage in Honeywill and Stein v Larkin which

Justice Brennan drew to your attention this

morning. Now, that passage was commented on in

Stephens v Brodribb in the joint judgment of

Justices Wilson and Dawson at page 40, where they

stated that the proposition as stated in Honeywill

and Stein v Larkin was too wide.

Burnie(2) 115 2/12/92

MR McALARY:  Your Honour, let me say honestly that I have

not thought about the point, and I would not offer

what seems to me to be an uninformed -

MASON CJ:  I am not concerned to criticize you, Mr McAlary.

I thought I ought to draw it to your attention.

MR McALARY:  Thank you, Your Honour. May I think about it

and perhaps send Your Honours a note.

MASON CJ:  The other thing is, and this is with reference to

a sentence in the judgment of Justice Dixon in

Mcinnes.

MR MCALARY:  Yes.

MASON CJ: Is not the decision in Stoneman v Lyons

inconsistent with that statement? In other words,

if the statement is right, would not

Stoneman v Lyons have been decided the other way?

MR McALARY: That is a difficult question to answer, Your

Honour. I looked at Stoneman v Lyons, certainly

the analysis - I had not thought about that either,

Your Honour but I am - - -

MASON CJ: It does seem to me from looking at the judgments in Stoneman v Lyons and looking at the argument as

recorded in the CLR that the principle stated by

Justice Dixon was not argued about.

MR McALARY:  No. Can I just come to this? As I remember

it, and I particularly remember Your Honour's

comment in relation to the trespass action, it

seemed to me, with respect, that what

Mr Justice Stephen and what Your Honour said were

really identical, Mr Justice Stephen advancing his

conclusions in relation to the principle of

negligence, and you in relation to the action in

trespass and in both occasions what one was

directed to, in other words the ratio of the

decision was, that the act which had been

authorized was not the very act.

MASON CJ: That is right.

MR McALARY:  But whether or not the matter would have been

different had the argument been advanced on a wider

basis, I would need to think about.

MASON CJ: Yes, it seems to me the judgments are a response

to the argument that was presented.

MR McALARY:  Yes, I did not cite Stoneman v Lyons, I did not

feel it advanced the issue any further here. Those

are my submissions, Your Honour, and I will seek to

think about both those issues.

Burnie(2) 116 2/12/92

MASON CJ: Thank you, Mr McAlary. Yes, Mr Barnard?

MR McALARY:  Before I sit down can I just add this: my

learned junior has prepared some - I am sorry to

interrupt - material which may be of help to

Your Honours. It is an appendix of relevant

evidence in which one can find references to the

material, if Your Honours need to go that far.

MASON CJ:  Thank you.

MR McALARY: I am sorry, Mr Barnard.

MASON CJ: Yes, at last, Mr Barnard?

MR BARNARD:  If the Court pleases, I think my learned friend

had also undertaken to hand to the Court the

contract documents between Wildridge and Sinclair.

MASON CJ: Yes, he did yesterday.

MR BARNARD:  I understand they have been copied. We adopt

Your Honour the Chief Justice's last two comments

in relation to Honeywill & Stein and also Torette.

My learned junior is disappointed he put both the

Stevens' case and the Stoneman case before me this

morning to raise it with the Court.

I turn to a matter of law that is raised in my

learned friend's submissions on page 6 where he,

under Rylands v Fletcher, says that:

The classification as natural or non-natural

user of the land depends upon the time, place,

circumstances and purpose of the user. It is

in that setting, is natural or non-natural is a decision of law.

for the jury to make the necessary findings. the user

We would point out that so far as the practice in

Victoria is concerned, and my learned friend had

gone on to I think compare this to a finding of

whether there is proximity, what he was meaning to

refer to as to whether a duty of care exists, the

practice that we are used to is that if one is

looking to find whether a duty of care does exist,
if the facts are undisputed, it is for the judge to
decide as a matter of law whether the duty of care
exists, and if the facts are in dispute it is for
the judge to decide whether they are capable of
giving rise to a duty of care, and if they are, it

is for the jury to decide whether they do give rise

to that duty of care.

Now, that approach would appear to be the

approach which is suggested by Lord Porter in Read

Burnie(2) 117 2/12/92

v Lyons at the passage which was read from

page 176, and that approach may well be in accord

with this Court in its view as to how the matter is

to be dealt with, but certainly is inconsistent

with what Mr Justice Jacobs did in the Handcraft

case. The approach to dealing with this matter and

the authorities are discussed by Mr Justice Lush in

Benson v Lee, (1972) VR 879.

We would go on to deal with certain matters of

fact which are raised by my learned friend in his

submissions, and I will attempt to deal with these

briefly. In paragraph 8 on page 2 he has raised

the matter that the:

Burnie Port Authority was aware of the need for additional fire extinguishers.

We dispute that as a matter of fact and we refer

the Court to the findings of Mr Justice Neasey at

page 2353 line 20, to which my learned friend has

referred this morning. So far as paragraph 9 is

concerned we dispute the allegation that the

Authority was acting as "a head contractor", and

also dispute that there was no disputers, that

there was coordination of contractors in the way

that my learned friend is suggesting. We again

rely on Mr Justice Neasey's findings which have

been partly read at pages 2349 to 2353.

The matter which is of some importance is that

Mr McAlary seeks to give the impression that the

cartons were stacked near the RSJ, that Cooper, the
consultant engineer who had been engaged by the

Authority, knew the welding would take place in the

portal above the RSJ and he seems to make the

inference that the Authority knew the welding would

take place where spatter could contact the stack.

In our submission, the unchallenged findings

were that the boxes must have been stacked after

Cooper had been there, on the day before, and that

he could not have known where they would be stacked

and the evidence of Cooper was that he had no

reason to know where they would be stacked and

there is no evidence that Cooper would have known

that welding would have taken place on this portal

12, on this day.

DEANE J:  Mr Barnard, does the evidence establish who owned

the isolite?

MR BARNARD:	Who owned the isolite?
DEANE J: Yes.

Burnie(2) 118 2/12/92

MR BARNARD:	The evidence established that it was purchased and, in fact, the dockets were tendered in evidence
that it was purchased by Wildridge and Sinclair and
brought on site in accordance with their order.

DEANE J: And it was still owned by them?

MR BARNARD: Presumably, until it gets lagged on to the

pipes properly and it presumably would not pass.

DEANE J:  I see.

MR BARNARD: Paragraph 10 of my learned friend's submissions

states:

Burnie Port Authority was aware and saw 20-30

cartons of isolite hoisted into the roof void

at the Eastern end of the building and saw

them being stacked between two RSJs

immediately below the welding to be done. That is inconsistent with the statement in

paragraph 14 on page 6 of the submissions, that:

On the afternoon before the fire Cooper saw

20-30 cartons of isolite hauled up the side of

the eastern end of the building and thrown
between the two RSJs at the eastern end of the

building in a jumbled pile.

We would say that the latter statement is more

correct. The findings are in Mr Justice Neasey's

judgment at 2271 line 30 to 2273 line 2 and 2314

line 26. And I may say that my learned friend is

wrong, when they were ultimately stacked, these

cartons were not stacked between the two RSJs but

were stacked to the south of them.	So that, again,
in paragraph 13, it begins:

Shortly before the fire, Cooper, a consultant/employee of Burnie Port Authority

had observed that the welding in the roof

void, including the relevant plate was

intermittent and confirmed with Whyman that

W & S would fully complete the weld right

around.

The word "shortly" we challenge and we say that, in

fact, the evidence which runs from 460 in cross-

examination by Mr Gee - it appears at page 372

lines 8 and 15 and 463 to 465 but concluding on 465

it is said, in cross-examination:

And is it not the fact that your conversation
with Mr Whyman, whatever its terms might have

been, occurred about two days before the

blaze? ...... Yes, I would agree with that.

Burnie(2) 119 2/12/92

Right, and not approximately two weeks before

the blaze, as you were asked to say

here? ...... No, I said that it was either

earlier that week or the week before,

yesterday, when I was asked in this matter.

Anyway, you are clear about it now that you've

been shown this deposition. Is that

right? ....... Yes.

So it was two days before or up to two weeks

before. So "shortly" has to be qualified by that.

But the impression given here by my learned friend is that the welding of the plate to the

portal was the main welding. This was a very

incidental task. The welding that had to be

carried out was the welding of the pipes as they

were brought across and the evidence in relation to

this, as to what happened on this day, can come

only from two people and that is from Lillico and

Anderson.

The work on the pipes, in fact, was being

carried out well away from the RSJs where the

cartons had been lifted into the roof void.

Lillico says that he was welding ammonia pipes and,

at page 559, line 16, to page 560, he says that he
had been down below because there had been some

problem with the power supply and somebody had

interfered, the welding lines were plugged in down

below, and he had come back up the ladder and he is

asked:

And when you get into the roof void, where did

you go to? ...... Back to the top of Stage 2,

round about the middle where I had been

working.

And where you'd been working and perhaps you

might tell us again, what were you then going

to do or what were you doing? ...... r was

setting up pipes and welding ammonia pipes up.

Well, did you in fact start doing that when

you got back? ...... Yes.

And was there anybody with you? ...... Yes,

there were several of us there.

And what were the others doing? ...... Well,

there'd be 2 or 3 doing the same and 1 or a

couple lagging the pipes.

And is this under the centre of the apex of

the roof? ...... Yes.

Burnie(2) 120 2/12/92

And are you still nearer to Stage 1 than the

eastern end of Stage 2? ...... Yes.

And whilst you were doing that did you see

something? ...... Yes.

What did you see? ...... Oh, I saw the fire

start, or I saw a fire anyway.

Well, now, where the welding on to the portal above

the RSJs took place, of course, is between or is

below portal 12, but there are four portals in the

addition so where the work had progressed with the

welding of the ammonia pipes was well away from

this.

Anderson, himself, at page 1681, line 9 of the

transcript, had said that he was working on a

valve; he was not welding, he was working on a

valve, and that was a quarter of the way on to

stage 2. So that what we say in relation to this

matter is that the impression given by my learned
friend is quite incorrect. There was no reason to
believe that this piece of welding was going to
take place on this day, this welding of the plate

on to portal 12. Nor was there any reason for Cooper to have any knowledge where these boxes would be finally stacked. Where he might have

expected welding to be progressing was in fact

where Lillico was welding, and that is back towards

stage 1 as the pipes progressed across on to

stage 2. And, as Lillico says, nearer to stage 1

than the eastern end of stage 2.

Now, we note that Mr McAlary has argued the

question of negligence here and we would merely
draw the Court's attention to the statement of

Mr Justice Zeeman at page 2386, line 10, where he states quite positively - and the judgment of
Mr Justice Crawford agreed:

This appeal does not call for a consideration

of whether it can be said that the appellant

is liable either as the result of its own

negligence or as the result of being

vicariously liable for the negligence of WS.

And the concession in relation to that matter was

certainly made before this Court on the application

for special leave in answer to a question from

Justice Gaudron - - -

MR McALARY:  I do not contend that I argued that in

Court - - -

MR BARNARD:  No, all right. The next matter that we would

raise, and that is whether the common law rules

Burnie(2) 121 2/12/92

still have any force, and reference has been made
to Wise and we would have particularly relied on

Wise, and I think I need not take the Court to that

decision. Mr Justice Brennan has raised that

matter, but we would point out that both

Chief Justice Latham and Justices Starke and

Williams all commented on that matter,

We would say also that the Court should

recognize that not only have those matters been

raised in the High Court but in other courts it has

also been acknowledged that the common law rules

were now subsumed within Rylands v Fletcher subject

to the exceptions and qualifications of that

principle. I do not know whether the Court has our

list of authorities but in our list of authorities

we have listed the cases in State courts and in New Zealand which have assumed that view to be correct.

DEANE J:  Mr Barnard, just taking you back, was negligence

argued at the trial?

MR BARNARD:  Oh, yes.

DEANE J: What is the relevance of the fact.that the

respondent did not rely on it in the Full Court?

MR BARNARD:  Your Honour, with respect, this is an appeal

from the Full Court's finding and the matter was

never raised or argued in the Full Court.

DEANE J:  And that is all?

MR BARNARD: That is all, yes. It was thought that it would

not be permitted to be raised here if the challenge

was to go back to the challenge of the evidence of

the trial.

DEANE J:  Have you any authority to support the proposition

that when a point was relied on at first instance

and does not involve any further evidence, the fact

that it was not relied on by a respondent in this

Court in the Full Court would justify this Court

refusing to take account of it?

MR BARNARD:  No, no authority, just that it was understood

to be the practice of this Court.

DEANE J:  I see.

MASON CJ: But there is authority to the contrary, is there

not, in the judgment of Sir Frederick Jordan in

NRMA v B & B Shipping in New South Wales State

Reports. I cannot remember the volume, but I feel

certain that case is authority for the proposition

contrary to the submission you are making.

Burnie(2) 122 2/12/92

MR BARNARD:  Yes, Your Honour, but with respect, it is only

in rare circumstances that it occurs.

MASON CJ:  He did not say rare circumstances. He said, as I

understand it, that the respondent to an appeal can

rely on a point not argued below if no question of

evidence arises if there is no issue of fact.	No
possibility of an issue of fact arising with respect to it. And there could not be in this case.

MR BARNARD:	So far as we are concerned, we say the findings of Mr Justice Neasey should stand, and we say,
particularly, his findings so far as the evidence
is concerned - that this was a particularly
difficult trial and a particularly difficult trial
so far as findings of evidence are involved. This trial took place almost a decade after the happening of the events and in those circumstances Mr Justice Neasey's views of the evidence and the
necessity to investigate it carefully involves that
his findings should be accepted and we would rely on his findings.

I think there are no other matters on which we

desire to address the Court.

MASON CJ: Mr Barnard, there is just one thing.

Justice McHugh has pointed out to me that in my

judgment in Stoneman v Lyons I referred expressly

to Mcinnes and accepted it as a decision. That

would seem to involve probably accepting the

statement of principle made by Justice Dixon at
page 552, at least to the extent that that

statement of principle applies to an operation

which results in the escape of fire.

MR BARNARD: With respect, Your Honour, we would question

whether that is a statement of principle, or
whether it is intended to be a statement of

principle. It appears at the top of the page and

for that reason appears to be divorced from what

goes before. But we would respectfully submit that

what is said there in that sentence has to be read in the light of the statements in the earlier part

of the paragraph where he speaks of the conflict of

evidence:

They amount to a finding that the appellant

knew, or ought to have known, that in the

course of operations conducted for his benefit

upon land in his occupation, fire would be

employed if, as was likely, its use was found

necessary or expedient in the opinion of the

person whom he had authorized to be there for

the execution of the work.

Burnie(2) 123 2/12/92

In our submission one can there conclude that

the employer had, in fact, sent the man out to use

fire; that it was part of his instructions to

fumigate rabbits in that way; and we would submit

that the occupier that His Honour Mr Justice Dixon

was talking about in the next sentence was an

occupier who had done just that, and that it was

not intended to be a statement of principle

divorced from what what was said before.

MASON CJ: Yes. Thank you.

MR BARNARD:	May it please the Court.
MASON CJ:	The Court will consider its decision i~ this

matter.

AT 11.32 AM THE MATTER WAS ADJOURNED SINE DIE

Burnie(2) 124 2/12/92