Burnie Port Authority v General Jones Pty Ltd

•

• "I

',;-~J"

•

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)

1/12/92

AT CANBERRA ON TUESDAY, 1 DECEMBER 1992, AT 10.17 AM

MR_J,E. BARNARD, QC:

May it please the Court, I appear with

my learned friend, MR S.R. WORSLEY, for the
appellant in this matter. (instructed by Archer
Bushby)

MR F.S. McALARY, QC: If the Court pleases, I appear with my

learned friend, MR A.J. ABBOTT, for the respondent.
(instructed by Dobson Mitchell & Allport)

MASON CJ: Yes. Mr Barnard.

MR BARNARD:	If the Court pleases, I hand to the Court at this stage seven copies of the outline of argument.
MASON CJ:	What do you mean by "at this stage"? Are you

threatening us with another outline of argument at
a later stage?

MR BARNARD:

Not quite, Your Honour, but I was going to hand

something else too; I was going to hand to the
Court also a plan and a plan of the cool store,
which I will refer to very briefly shortly, but I
may hand it to it at this time.

MASON CJ:

Yes.

Mr Barnard, having read the outline of

submissions, is it necessary to have 12 volumes of
appeal books in this case?

MR BARNARD:

Your Honour, I am unable to answer that, other

than to say it arises out of the notice of
contention.

MASON CJ:

We will deal with that later.

MR BARNARD:

But I certainly will not be referring to any

more than volume 12 and perhaps one document in
volume 1, the statement of claim is contained
there.
If the Court pleases, the cold store was

situated on the Burnie Port Authority complex at
Burnie on the waterfront and it consisted of a

rectangular box sitting on a concrete base. The
walls and ceilings - and the cool room itself was truly rectangular with a flat ceiling - were made
of panels of which the core consisted of an
expanded polystyrene between facings of thin metal.
Now this box was erected under a gable roof, which
was supported on 13 steel columns which were 8.3
metres apart. Now perhaps I should explain a steel
portal consists of columns and rafters over the top and there were 13 of these. The roof had a span of
some 30 metres and the length of the cool store was

100 metres. The roof was covered with cement
sheets and there was really no connection between
the covering roof and the cool room underneath,

Burnie(2)

1/12/92

except chains came down from the roof above to help
support the polystyrene ceiling of the cool room
and there were other pieces of metal which jutted
down so that the wind could not blow up and blow
the ceiling off the box below.
The design of the structure was such that it

was intended that air could come up over the box
and between the box and the roof and flow freely
through; and it is this area that is referred to
between the roof above and the ceiling of the cool
store which is referred to as the roof buoy.
The plan which was handed to the Court was an

exhibit and part of the depositions which were

tendered before Mr Justice Neasey at the trial. I
draw attention to that to indicate - the top of the
plan was regarded at the trial as being the north.
One looks at rooms 1, 2 and 3 on that plan they
were stage 1 of the cool store complex which had
been completed in 1977, and in 1979 the other two
rooms, rooms 4 and 5, were added, and at the time
of the fire the structure of those rooms was
substantially completed. All that remained to be
completed was really the doors when certain

equipment had been moved into it. It was at the
west end of the complex or beside room 1 where all
the plant and equipment and the cooling equipment
was installed, and accordingly, when rooms 4 and 5
were added the cooling pipes and cooling equipment
had to be extended over room 4 and room 5 to
provide ammonia gas and the cooling pipes to those
two rooms.
Wildridge and Sinclair was the firm which was

the contractor who was engaged to extend the
refrigeration equipment over those two rooms and,
in fact, who had been engaged and employed to
install the refrigeration equipment originally to

supply rooms 1, 2 and 3. And it was rooms 1, 2
and 3 that were, pursuant to agreement, licensed to
General Jones where they stored their vegetables,

and it was in those rooms that vegetables were
stored at the time when the fire occurred and

spread from rooms 4 and 5 to burn the area. In
fact, indicated on the plan as the area destroyed
by the fire, the fire which took place on
20 December.

BRENNAN J:

When you say they were "licensed", when you say

that General Jones were "licensed" - - -

MR BARNARD:

They had a licence to occupy that area,

stage 1.

BRENNAN J:	And is the Burnie Port Authority in possession of the whole of this structure?
Burnie(2)	1/12/92

MR BARNARD: Well, I think the case was being conducted on

the basis, really, that General Jones was in
occupation of rooms 1, 2 and 3.

BRENNAN J: But is that a valid assumption?

MR BARNARD:	I think it is.
BRENNAN J:	To the exclusion of the Burnie Port Authority?
MR BARNARD:	From the rooms themselves, not otherwise from

the structure or the surrounds.

BRENNAN J:

So that Burnie Port Authority, in relation to

the void above rooms 4 and S, was a neighbouring
occupier que General Jones' occupation of rooms 1,
2 and 3?

MR BARNARD:

That is the basis upon which the case was

conducted in front of the Full Court in Tasmania.
Of course, Burnie Port Authority was responsible for
the refrigeration equipment that was above rooms 1,
2 and 3 and for the plant that was at the western
end of the whole complex which supplied the cooling,
but the occupation of the rooms was by General
Jones, and that is rooms 1, 2 and 3 only.
Now, the respondent's claim against the

appellant in this action was basically argued at
the trial in negligence under the common law in

accordance with the principles laid down in
Beaulieu v Finglam and pursuant to Rylands v

Fletcher. Mr Justice Neasey, the learned trial
judge, found in favour of the appellant on the
causes of action of negligence and Rylands v
Fletcher, but found against the appellant on the
common law principles of Beaulieu v Finglam.
His judgment was appealed from and that appeal

was heard on 5 and 6 November 1990 and, on
11 September 1991 the Full Court of Tasmania

delivered judgment finding in favour of the
appellant on the Beaulieu v Finglam argument and
against it on the argument in Rylands v Fletcher.
Now, the Full Court finding, in our submission, was in error in that it found that the
failure by Wildridge and Sinclair's employees to
take the precautions against fire which it said
were to be elementary in the welding trade amounted
to a non-natural use of ..... I refer the Court
specifically to the findings of Mr Justice Zeeman in volume 12 at page 2388 at lines 1 to 16, where
he said:
There can be no argument but that the

fire upon the appellant's premises was likely

Burnie(2)

1/12/92

to do harm if it escaped therefrom to

adjoining premises. No submission to the
contrary was made, and the learned trial judge
appears to have proceeded upon the implicit

assumption that that was so. The learned
trial judge's reference to the taking of
proper precautions in the course of welding
operations suggests his view that the question
as to whether or not such proper precautions
were taken was not relevant in determining
whether there was liability upon the basis of
the principles laid down in Rylands v
Fletcher. With respect, I consider that his
Honour was in error in taking that view, that
being a view contrary to the authorities to
which I have referred. Sochacki v Sas might
be considered as authority for the proposition
that the categorisation of a use as being
"natural" or "non-natural" is to be made
without reference to time, place or
circumstances. A lodger left a fire burning
in the fire place of his room. There was no
fire guard. The lodger was away for several
hours. Whilst he was absent, a spark jumped
from the fireplace and set fire to the floor
boards. That fire spread to the landlord's
adjoining room and caused considerable damage.
Lord Goddard CJ rejected the submission that
the lodger should be held liable upon the
basis of Rylands v Fletcher, saying:
He was using his room in the ordinary, natural
way in which the room could be used ..... There
was an ordinary, natural, proper everyday use
of a fireplace in a room ..... If a person
living in a house does no more than light a
fire in a fireplace, and through some unhappy
accident a fire occurs, he is certainly not
liable under Rylands v Fletcher {supra).
At page 2390 at line 21, after setting out the
findings on matters of fact, Mr Justice Zeeman

said: Those findings lead to a conclusion that
WS's employee embarked upon welding
operations, necessarily emitting sparks, in close proximity to cartons which themselves
were liable to catch alight upon the
introduction of a necessary fire source and
which cartons contained materials liable to
create an intense fire once ignited. It might
be considered elementary common sense not to
embark upon welding operations, with an
inevitable production of sparks, without first
ensuring that any sparks emitted do not come
into contact with any particularly flammable

Burnie(2)

1/12/92

materials. In fact, as the learned trial
judge found, the taking of such precautions is
considered to be elementary in the welding
trade. The failure by WS's employee to take
such precautions, leads me to the conclusion
that the particular welding operations did not
amount to a natural user of the land, but
amounted to a non-natural user. That appears
to accord with the authorities to which I have
referred.
Mr Justice Crawford agreed with Mr Justice Neasey
and Mr Justice Cox at page 2371, line 46, said, and
I should perhaps read this:
If the defendant's own conduct, although

not amounting to negligence, is to be taken
into account in determining whether he should

bear the risk of having a dangerous thing
where it was or whether his innocent neighbour
should bear the loss its escape may cause then
in a case such as this where the occupier
countenanced welding operations in
circumstances where his employees knew that
flammable material in the form of cardboard
cartons, in turn holding isolite, a substance
which will burn with great intensity if
ignited, had been stored in a particular part
of the premises and though they may not have
adverted to it, that the area was one where
sparks or molten material from the welding
operation might fall, there is some
justification for the view that the occupier
should accept that risk and that his decision
to permit welding in these circumstances
amounted to a non-natural user of the land.

On the application for leave that passage was
discussed and I will come back to it, but that
comment is not supported by the other two judges
nor the findings from Mr Justice Neasey. However,

he goes on: However, even if this question is to be
determined solely by objective criteria,
having regard to the facts of this case to
which Zeeman J. refers in his reasons for
judgment, I agree with him that the action of
WS's employee in engaging in welding
operations without taking the elementary
precautions which would have minimised if not
eliminated the risk of damage, amounted to a
non-natural user for the purposes of the rule.

Our complaint about these matters is that what the court has looked to is the method by which the use
is carried out rather than to the character of the

Burnie(2)

1/12/92

use, and we say the correct approach was that which
was taken by Mr Justice Neasey to which I would take the Court at page 2348 and at line 11, and
this was the whole of his finding on this matter:
I turn to the argument that BPA is liable to GJ under the rule in Rylands v. Fletcher

(supra). I have no doubt it would be possible
to establish liability under this head,
separately from the common law rule above
discussed -

and he is referring to Beaulieu v Fingiam -

provided it was an appropriate case for
application of the rule. This proposition is
too well established to need exposition (see
generally, Fleming on Torts, 6th ed., ch.16).
However, in my opinion liability cannot be
established against BPA on this basis in the
present case, because welding on the
defendant's premises was not a non-natural
user. Welding, after all, is a perfectly
ordinary operation which is performed on
countless occasions every day all over the
world within buildings on industrial sites,
and it can be performed with adequate safety and security provided proper precautions are
taken. This is to say, it is an ordinary and
usual way of using property. It is not a
ttspecial use, bringing with it increased
danger to otherstt - Rickards v. Lothian (1913)

AC 263. The cases both in England and the
United States, but particularly in the latter,
abound with examples of industrial operations
of a generally similar kind which have been
held not to be non-natural user - see for
example -

he refers again to Fleming and to Prosser.

What Mr Justice Neasey did: looked merely at

the character of the operation which was being
carried out, namely welding. It is a matter
whether the acts done to or were the object brought
onto the land, or the circumstances in which the
use occurs are to be taken into account in
determining whether the use is natural or
non-natural. Here, it is a matter of whether the
use of welding, which was a natural use, we would
submit, on a port, or on a construction site, as
this was at the time, is converted into a not
natural use merely because it is being carried out
negligently at the time.
I might say, perhaps I should comment at this

stage that the highlight of the approach taken by

Burnie(2)

1/12/92

the Full Court is to be found in a Western

Australian case in 1961. The case was Robert v
Czycyerskyj, (1961) WAR 175 where the occupiers of
a house had rented out a room to a lady and she was
the occupant of that room in the house and she had
been doing her washing, doing her laundry and she
had been doing the laundry in her room and she had
been seen going into the room smoking and a fire
occurred and ultimately the house and the contents
were destroyed or damaged. It was found there that
smoking involved - provided a cause of action under
Rylands v Fletcher as well as in negligence.
One would have thought in 1961 smoking was one

of the acts which was performed at some stage in

almost every home in the country. We say that is
the high-water mark of extending the rule in
Rylands v Fletcher to really what is situations

where negligence is the proper remedy. But this
uncertainty about what is non-natural use has been in existence for a quarter of a century and by way of illustration we would seek to refer the Court
briefly to two articles in the Cambridge Law
Journal where the issues are being raised.
Without reading them, and the first is an

article in "Non-Natural Use of Land" 1973 Cambridge
Law Journal, at page 310 by David Williams, at
page 313 - and he is discussing both views, but the
view to which we are objecting is at page 313,

three-fifths of the way down the page. He says:
In the context of negligence actions use takes
on a more restricted connotation, and refers
to a particular act (or omission) or series of

acts. Thus it is now the hitting of a
particular shot that is of concern, rather
than the playing of a game of golf or, more
generally, the maintenance of a golf course.
There is no necessary element of continuity.
Likewise the presence of the actor on a

particular parcel of land will usually be a
matter of coincidence only. Nevertheless,
this meaning of use has been accepted in some
of the cases argued and decided under Rylands
v Fletcher.

He goes on, and at page 315 to page 316 - the
middle of page 315:
It is submitted that what emerges is that when
some object or substance is brought on to
land, and the object or substance is likely to do mischief if it escapes, then the use of the
land will be regarded as non-natural if the
object or substance is dealt with on the land
in a negligent fashion. If the acts done to

Burnie(2)

1/12/92

or with the object or substance are "ordinary,
natural, proper, everyday," particularly
having regard to the standards of skill that
would be employed by a reasonably competent
user of the thing, then the use will be
treated as natural. It is not suggested that
there is thus a necessary or logical
interconnection between liability for
negligence and under Rylands v Fletcher,
rather that judges will in practice equate the
two concepts of negligence and non-natural use
if the meaning of use is an act or series of
acts. If the reasonable man carries out on
his land acts involving a thing likely to do
mischief if it escapes, in circumstances where
a judge examining the matter would determine
that all reasonable precautions have been
taken in performing those acts, then it is
suggested that a judge will treat this as a
natural use of land.
And so he goes on, and he comes to his conclusion
in relation to this line of reasoning on page 317
in the paragraph commencing near the top of the
page:
It is submitted therefore that, if this

narrow meaning of use is correct, the
categorization of the use as natural or
non-natural will depend upon a finding of the
same situation as would give rise, if so

argued, to a finding of negligence. Do the
actions then become coterminous? If the actor is the landowner the answer would be that they
are. But in many cases, such as Rylands v
Fletcher itself, the liability arises for the actions of a third party, for whom the
landowner is not vicariously liable in
negligence. If the third party actor is a
stranger, then the landowner is not liable,
but he will be liable for his independent

contractors and lawful visitors, as well as

his servants and agents. The effect of the
rule in this situation is that the landowner
can be made liable for the faults of his
contractors and visitors without proof of
personal negligence. But, in the light of the
above analysis, these acts themselves will

render the actor liable in negligence. The
rule thus achieves by another route and on a
different rationale the same effect as would
be achieved by rendering the landowner
vicariously liable for the negligent acts of
contractors or visitors in relation to
dangerous things which escape from the land.

Now, I should interpose that - - -

Burnie(2)

1/12/92

BRENNAN J:

Mr Barnard, could I ask you, do you accept that

Rylands v Fletcher now subsumes the rule in
Beaulieu v Finglam?

MR BARNARD:	Yes, we do, yes.
BRENNAN J:	So whatever was in Beaulieu v Finglam is now to

be found in Rylands v Fletcher?

MR BARNARD:

Except that, of course, Rylands v Fletcher have

supplanted Beaulieu v Finglam and the common law

rule is ameliorated in now that you are not liable
for the escape of fire if it was a natural use of
the land.

BRENNAN J:

I wonder how it is then that it has subsumed

that earlier rule if that qualification on the
earlier rule has been introduced.

MR BARNARD: Well, perhaps I am wrong to say it is subsumed,

but it has replaced the common law rule; Rylands v
Fletcher has replaced it on the authorities of this
Court.

BRENNAN J:

And so the old rule no longer has any currency?

MR BARNARD: That is so.

BRENNAN J:

And no doubt you will demonstrate that at some

stage.

MR BARNARD:

There are many statements of this Court to that

effect, saying it. But I was going to interpose

the expressions of Mr Williams. One finds also in
Winfield & Jolowicz on Tort; it is in the 13th
edition at page 443, and I will just read a very
brief passage:
Moreover, as a result of the defences of

act of God, act of a third party and statutory
authority, the courts must investigate not

only the reasonableness of the accumulation,
but also the defendant's responsibility for
its actual escape. The nature and quality of
the defendant's conduct are therefore factors
of great importance, and although the
decisional process is different from that in
negligence, the result is almost always the

same. We have virtually reached the position
where a defendant will not be considered
liable when he would not be liable according
to the ordinary principles of negligence.

Now, of course, what we are going to say is that
that is contrary to the authorities of this Court
and wrong in principle.

Burnie(2)

1/12/92

The other article to which we would briefly
refer the Court is an article again in The
Cambridge Law Journal, 27 CLJ 104 by A.I. Ogus,
called The Vagaries and Liability for the Escape of
Fire, and Mr Ogus discusses Rylands v Fletcher and
he says, under the heading, The Scope of Negligence
and Nuisance, on page 116:
Since the decision in Read v Lyons, the popularity of the Rylands v Fletcher doctrine

has suffered a marked decline. Most of the
modern cases concerned with the escape of fire
have been decided on the basis of negligence
or of nuisance. This tendency is to be
applauded. Recognizing the flexibility of
these two forms of tortious liability, we may
venture the opinion that the exclusive use of
either -

and that is negligence or of nuisance -
would be the best method of establishing order
in this hitherto disordered topic. We shall
therefore conclude this study by considering
the scope of negligence and nuisance as
applied to the escape of fire,. and in this
context contrast their efficacy with that of a
regime of strict liability.

And he goes on at page 121 line 6 to say:

Where liability for the acts of independent
contractors is imposed, it is generally
justified on the ground that the employer of
the contractor is economically in a better
position to indemnify the plaintiff. In the
present context, however, this justification
cannot apply for, as has already been
explained, the employer of the contractor is
unlikely to be insured.
Our conclusion is, therefore, that, in order both to exclude the complexities which
have hitherto arisen in this area of the law, and to be consistent with the general policy
of the law of torts, liability for the escape of fire should be confined to the case where the defendant (or his employee) is at fault.
To this end, a remedy in either negligence or
nuisance is appropriate, and it is not felt
necessary to choose between them.
We would contend that Mr Ogus's views upon this are
correct.

Burnie(2)

1/12/92

Now if I could return to Justice Zeeman, who
relied on Smith v Badenoch and he quotes from
Smith v Badenoch on page 2386 from
Mr Justice Zelling in Smith v Badenoch, and we
contend that he incorrectly interprets this passage

from Smith v Badenoch. The passage is:
The doctrine of what is or is not a natural
user of land is a difficult one and as Upjohn
J. (as he then was) said in Smeaton v Ilford
Corporation (1954) Ch.450, at p.471 the rule
still awaits authorative determination.
Lord Macmillan in his speech in Read v.

J. Lyons & Co. Limited (1947) A.C. 156, at
p.174 referred to some non-natural use of that
land whatever that precisely may mean. There
is a further discussion of the difficulties
inherent in this concept in the judgment of
Windeyer J. in Benning v Wong (1969) 43 ALJR

467, at pp 486-487. The difficulties in
relation to this phrase are twofold:- first,
that the words are sometimes used by judges to refer to things not naturally occurring on the
land, and second, that they are also used to
refer to things not normally used in relation
to land or not normally used at given times
and in specified circumstances. With this
confusion of terminology it is not remarkable
that the exception has not proved easy to
define. This has not been improved by the
fact that propositions of fact have been
treated almost as if they were propositions of
law. For example, there is the much quoted
passage from the judgement of Lord Shand
delivering the advice of the Privy Council in
Black v the Christchurch Finance Co. (supra):
'The lighting of a fire on open bush land,
where it may readily spread to adjoining
property and cause serious damage, is an
operation necessarily attended with great
danger, and a proprietor who executes such an
operation is bound to use all reasonable

precautions to prevent the fire extending to
his neighbour's property (sic utere tuo ut
alienum non laedas).'

The passage he cites is 'make use of your own
property in such a manner as not to injure
another', is the Latin phrase.
This, even when spoken in relation to a fire
in midsummer is simply not true in all
circumstances, at least in South Australia,
whatever the position may be in New Zealand.
In many cases it is an operation attended with
great danger but it is not necessarily so
attended. This depends on the nature of the

Burnie(2)

1/12/92

country, whether it will easily carry a
running fire, what the wind conditions were
like at the time, whether there has been rain
recently, what fire-breaks have been burnt,
how far the lighting of the fire is from the
boundary of neighbouring property, and many
other things.
It would no doubt have been logically much
more consistent if a natural user of land had
been held to continue to be a natural user at
any time of the year notwithstanding changes
in the circumstances and in the greater
likelihood of danger ensuing from the use, and
if the user at a time when the conditions were
fraught with danger to others had been
classified as a natural but negligent user,
but the development of the case law has been
otherwise and I must accept that to be so.
The degree of hazard involved in the use of
the fire, the extensiveness of the damage it
is likely to do and the difficulty of
controlling it depending on climate, the
character of the country and the natural conditions do, on the case law as it now stands, decide what is natural and what is
non-natural user, and I take this view of the
law as being the one controlling me in
deciding this case so far as this ground of
liability is in issue.
Now, we say certainly it was a matter of law
as to whether it is natural or non-natural, but
otherwise we say that Mr Justice Zelling is
correct. And Mr Justice Zelling was not looking at
concerned burning off in the Adelaide Hills -
the facts of the individual case, case
burning off in the Adelaide Hills was a natural or

non-natural use at that time. And we would draw
attention to the fact that Mr Justice Zelling, in
determining whether it was a natural or non-natural

use, did not consider whether there had been any
negligence in the use at the time, but in fact
there had been negligence and, at page 15 of the
decision, he said:
I turn now to the claim based on common

law negligence. In my opinion, the defendant

was guilty of negligence at common law. I
think his check of the area at midnight was

too cursory. He should have gone over the
whole of the area in question and checked it

far more thoroughly than he did. It may be
said that this requires a high degree of
vigilance from a defendant in these
circumstances. So it should. Fire is a known

Burnie(2)

1/12/92

and serious hazard in all farming communities
and the defendant's check was in my opinion
too perfunctory, as is shown by the outbreak

on Tripodi's land. I find that if he had
looked more carefully or stayed a little
longer examining the ground he would have seen
the fire escaping on to the plaintiff's
property. Accordingly I find that the
plaintiff has made out his case on the
alternative ground of negligence at common
law.

DAWSON J:

Does that mean that there can be a natural use of

the land by a process at one stage which would
become unnatural at another stage?

MR BARNARD: According to the views expressed by the Full

Court of Tasmania; but in our submission, no, that
one determines as a matter of law whether it is

natural or non-natural. The fact that - - -

DAWSON J:

The burning off of land, agricultural land, in

the winter, would not be a non-natural use.

MR BARNARD:

That is so.

The High Court has said that in

other situations, in high summer, it is a non-
natural use of land.

DAWSON J:

So the same operation can be at one time a

natural use, and at another time a non-natural use.

MR BARNARD:

And Mr Justice Zelling is saying, of course, it

is unfortunate that you change it from summer to
winter, that it can be natural in winter and non- natural in summer but, on the other hand, he only looked at the relevant facts, the character of the
use.

McHUGH J: Well, on his view, whether it was natural or

non-natural could depend on the hour of the day or

even change. If you look at page 14, in the last
paragraph, he says:

This was late in November, the maximum
temperature on the day in question was only 80

degrees F. The wind was very light and
ordinary firebreaks existed.

That is very particular, is it not?

MR BARNARD:

But that is particular in relation to the use

at that time, and that time of day, and it may well
be that that is so; but, with respect, it does not
go to looking at the acts of the user on the
specific occasion.

DAWSON J:

It gets very close to it, does it not?

Burnie(2)

1/12/92

MR BARNARD:

With respect, no, and we say that the High

Court makes it very clear in other cases that you
are looking at the details of the use - - -

DAWSON J: It sounds very likely that it is a non-natural

use to burn off in summer because it is negligent
to do it in summer.

MR BARNARD: Well, it may be both, but on the other hand, in

Smith v Badenoch what was a natural use, that
farmers did do it at that time of the year, it was
an ordinary and reasonable use of the land, it was
negligent the way it was done, and the defendant
was liable, but it was not negligent on the test of
strict liability, but it was because of his blame.

BRENNAN J: But is not the test of non-natural user the

question of whether that which is introduced to the
occupier's land poses a danger to the adjoining
occupier?

MR BARNARD:	With respect, that is the basis of strict liability in Rylands v Fletcher, but the exception
to it is that even though it does pose a danger to
the adjoining occupier, the strict liability does
not apply if the uses are natural.
BRENNAN J:	I must confess I am finding the discussion

restricted to the language of Rylands v Fletcher
somewhat diverting from the notion of principle

that underlies this. I would have thought that the
principle was that if there is an occupier of land
who introduces on to his land, either himself or by
his servants or by his licensees, a fire which may
escape and cause damage to his neighbour he would
be liable. Now, what is the reason why that does
not apply?

MR BARNARD:

The reason why that does not apply - I suppose

to put it in the simple situation: if you have a
fire in your hearth to warm you, why should you be
strictly liable for its escape when everybody

else - and it is a perfectly normal thing to do -
why should you be liable for its escape when there
is no fault on your part?

BRENNAN J: Perhaps I should put a qualification, and that

is the qualification that is introduced by the
Fires Prevention (Metropolis) Act 1774, that there
has to be some negligence on the part of the person
who lights it.

MR BARNARD: With respect, that qualification, of course, changes the rule in Rylands v Fletcher. Rylands

v Fletcher is one of strict liability and - - -

Burnie(2)

1/12/92

BRENNAN J: It just seems to me that Rylands v Fletcher is directed to something which is somewhat different

from the escape of fire.

MR BARNARD:

With respect, we would be, I think, inclined to

agree with that. But, however, this Court, on a
number of occasions, has treated as directed to

fire. The rule in Rylands v Fletcher, as we will
refer to, really was concerned very much with the - it was putting a reservoir on land and it was very much with how you used your land and how that
affected your neighbour, not somebody outside, not
somebody on the neighbour's land, how it affected
your neighbour's land. But it has been expanded
certainly beyond that.

DAWSON J:

But it was the quantity of water which was

significant in Rylands v Fletcher, was it not?

BRENNAN J: Yes.

MR BARNARD:

It was a reservoir, yes, and it was said to be

a potential danger if it escaped. It certainly,
with respect, was not limited to size or quantity,
it was a potential danger.
Mr Justice Zeeman also relied on Read v Lyons

and perhaps I should refer to Read v Lyons. This
is Read v Lyons in the House of Lords, and the
Court will recollect that Read v Lyons, (1947)
AC 156, concerned a munitions factory operated by

the respondents. And it was determined in the
House of Lords on the basis that there was no
escape because the injury was to one of the workers

on the premises of the munitions factory. So that
really the House of Lords never went on to fully
consider the question of natural or non-natural
use, and I would propose to come back to it,
particularly in the Court of Appeal where
Lord Justice Scott considered it in greater detail.
But I merely here comment that, in our submission,

Read v Lyons does not support the view expressed by
Mr Justice Zeeman and, in particular, he referred
to Lord Porter, and Lord Porter, at three quarters
of the way down the page of page 176, said:
For the present I need only say that each
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.

Burnie(2)

1/12/92

We would say it is correct, that it is a matter for
the judge. It is a matter of law as to whether it
is non-natural, and it is also a matter of "time
and place and practice of mankind" that is taken
into account, but not the individual circumstances,

the method of use on the particular occasion. I
will return in a later context to Read v Lyons.
Mr Justice Zeeman has otherwise relied on Sochacki
v Sas which is Lord Goddard's decision about a fire
in a fireplace in a lodger's room, and all
Lord Goddard said was if you have a fire in your
fireplace and he had not obviously put a guard on
it, but it was an ordinary natural, everyday use.
We say again that passage does not support
Mr Justice Zeeman.
Our submission is that the authorities of this

Court support the view that where the dangerous thing is brought on to the premises as an accepted
incident of some ordinary use to which the premises
are reasonably applied by the occupier, strict
liability does not arise. Further, the use does
not become non-natural because there is a negligent
act or circumstance involved in the use which
causes the escape. It is the character of the use
or operation and not the method of carrying it out
which makes it non-natural.
We would turn to the decisions of this Court,

and turn firstly to Whinfield v Lands Purchase and
Management Board of Victoria, (1914) 18 CLR 606.
That was a case where the board allowed employees
of the water commission to camp on their land, land
that had been owned or acquired by the board, and

whilst camped there they lighted a fire. The fire
was lit by cooking purposes, and by reason of the
negligence - the man was McTavish - by reason of
McTavish's negligence the fire spread to adjoining
land and caused extensive damage. At page 609 the
allegation in paragraph 6(a) was:
(a) The said fire was lighted in the open in

an unprotected fire-place in hot and dry
summer weather with the grass and other
materials on the ground in a highly
inflammable dangerous condition, when the
defendants or either of them or the said
William McTavish knew, or ought to have known,
that the said fire or a spark or sparks
therefrom, if not carefully and completely
watched or protected, might or would spread.

That was said to be proven. Chief Justice Griffith
deals with Rylands v Fletcher at page 616 when he
says in the middle of the page:

Burnie(2)

1/12/92

As against the Board the case rests entirely upon the permission (alleged but not
proved) to camp on land of which they had
control. It would be a shocking thing to lay
down as a rule of law that in a country like
Australia, where probably hundreds, if not thousands, of men travelling on foot in
sparsely settled districts ask every day for
permission to camp for the night on private
property, the owner by granting such poor
hospitality becomes responsible for the
lighting of a fire by the wayfarer to boil his
"billy" or keep himself warm. Apart from this
consideration the well known rule that the
doctrine of respondeat superior does not apply
as between principal officers of Government
and their subordinates, except for wrongful
acts in which the former are personally
concerned, is sufficient to protect them. The
Board are mere agents and managers of the land for the Crown, and the most that can be
alleged against them is that they did not prevent the men from camping on the land.

They permitted them to camp on the land. We
say this decision is consistent with what we put
forward, consistent with merely looking at the

character of the use. The only other passage in
this that we would refer to is in the judgment of
Mr Justice Isaacs on page 619. Again, we say that

he does not look at the specific incident. He
says:
Now, it seems to me to follow that where

the question is as to a domestic fire, a fire
lit for the purpose of cooking food or
supplying bodily warmth, the position of the
person lighting it is inherently stronger,
because its essentiality as a feature of life
is based on the common requirements of

humanity. No one can assert that the presence

of such a fire is "an increased danger", that
is, increased beyond that occasioned by the
ordinary use of the land, or, phrasing the
notion differently, that the use of the land
for such a purpose is a "special use". On the
contrary, fire for the maintenance or ordinary
comfort of life, is a necessary adjunct of
civilized existence, and an elemental purpose
of the use of land by the human race.
Unless, therefore, some default or

negligence be proved in respect to such a
fire, no responsibility for its spreading is
incurred. That is a common risk which members
of society mutually accept. The allegation of
negligence which we find in the early cases

Burnie(2) 18 1/12/92

can be understood. The reason upon which this
conclusion is rested is made further apparent
in the judgment of the Judicial Committee in
the earlier case of Eastern and South African
Telegraph Co. v Cape Town Tramways Cos.

He goes on to that case. He goes over on to

the next page, he says:
The principle of Rylands v Fletcher, which
subjects to a high liability the owner who
uses his property for purposes other than
those which are natural, would become doubly
penal if it implied a liability created and
measured by the non-natural uses of his

neighbour's property. Nor need the law be
regarded as showing any want of adaptability
to modern circumstances if this be the true
view, for the liability thus limited is of
insurance and not for negligence, and all the
remedies for negligence remain."

And he is quoting from Lord Robertson.
This makes it clear that the liability for breach of this absolute duty of insurance, though higher in its nature, is not in its incidence necessarily coextensive with the
responsibility for breach of the relative duty

of care, that is to say, for negligence. The
Privy Council accordingly held in that case
that as negligence was negatived, the
plaintiff could not on mere proof of the breach of the absolute duty of insurance
recover in respect of the very special damage
claimed, though in fact resulting from the
escape of the electricity.
Mr Justice Isaacs has taken the view there

that there is a different basis for claiming
damages under Rylands v Fletcher than for

negligence. But whether that be so or not we say

he is quite clearly distinguishing that in looking
at responsibility for Rylands v Fletcher you do not
look at the negligent acts, you are looking at
something different from the negligent acts.
Whereas here in the present case the Full Court has looked at the negligent acts in determining whether
there is a non-natural use.

MASON CJ:

You ought to look too, do you not, at page 615 at

the judgment of the Chief Justice, where he draws a
distinction between the introduction of fire on to
land for domestic purposes and the introduciton of
fire on to land for a purpose which is dangerous,
ie, for a purpose which involves spreading the fire
across the land.

Burnie(2)

1/12/92

MR BARNARD:

Yes.

MASON CJ: In one case it is a natural user, in the other

case it is a non-natural user.

MR BARNARD: That is certainly so but, of course, with

respect, Hazelwood v Webber and other decisions
were burning off cases which were natural users.
The Chief Justice there has not specified the

circumstances of the spreading. Of course
spreading may be a non-natural user but one has to
look at what is the ordinary and reasonable use at
the time and the circumstances.
Of course, Hazelwood v Webber was a fire lit

by:
a member and formerly President of the Urana
Pastures Protection Board -

in the Riverina at Urana, and these cases seem to
arise from that area, and it was there held that
the burning of vegetation in the open in mid summer
is not a natural or ordinary user of land, and
therefore the appellant was liable independently of
negligence. At page 276, at the bottom of the page
in the judgment of Chief Justice Gavan Duffy and
Justices Rich, Dixon and McTiernan:
The case, therefore, turns upon the

question whether the use of the fire made by
the defendant was such as to fall outside the

strict liability independent of negligence and
expose him to civil liability 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

Burnie(2)

1/12/92

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.
And we say that that is the statement of it; that
it is a principle that has stood in this Court.
And the Court again, at page 278, a third of the
way down, said:
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.

And we say this is very important.
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.
With regard to the question that the question

is not one to be decided on each occasion, we say
it is a matter - and the authorities have held that
it is a matter - to be decided as a matter of law
and that it would be a strange situation if you
were to submit to a jury the question of negligence
for it to decide it on the facts, and if the judge
were to decide the Rylands v Fletcher cause of

Burnie(2)

1/12/92

action and decide it differently as a matter of
law, the jury finding no negligence, and if the
judge was entitled to take into account the
particular circumstances, finding it a non-natural
use.
In that context, we would refer to the

judgment of Acting Justice Jacobs, as he then was,
in Handcraft Supply Co Pty Limited v Commissioner
for Railways.

BRENNAN J:

Mr Barnard, could I just take you back to

Hazelwood v Webber for a moment? At page 275,
Their Honours expounded, as I understand it, the general principle, and the general principle was that there is liability for the escape of fire
unless some defence is made out, and the defence
with which Their Honours were concerned in that
case, the defences were twofold: first, the Fires
Prevention (Metropolis) Act, which was held not to apply in New South Wales; and second, the question whether the use of fire as a recognized incident of
the proper enjoyment of land takes the case outside
the general principle.
Now, if that is the way in which we should

approach this case, the question is not so much- whether or not the use of welding equipment is a
natural use of the land, is it, it is a question of
whether or not you can say that the use of welding
equipment in the void was, to use the language
here, "a recognized incident of the proper
enjoyment of the land". It is a question of
defence to the general principle.

MR BARNARD: Well, that is so. In other words, whether the

use of the welding equipment on this site was a

natural use of the site. I accept that.

BRENNAN J:

Or a recognized incident of the proper enjoyment

of the site.

MR BARNARD:

We would say, undoubtedly, if you have a port

authority, you must have welding going on, and
employ welders, and if you are constructing
buildings, and buildings necessarily involve steel
structures in them, and pipes in them, and
refrigeration equipment, you must necessarily carry
on welding to do that work.

GAUDRON J:

Why that question rather than the storage of

isolite?

MR BARNARD:

Because that is the way the court has

determined it, that Mr Justice Zeeman and

Burnie(2)

1/12/92

GAUDRON J: That is the way the parties fought the case,

that it was welding rather than storage of highly
combustible material?

MR BARNARD:

The negligence was welding near combustible

material; that is what the negligence of the
Wildridge and Sinclair employee was and what we are
saying is, that does not make it a non-natural use.
Welding is a natural use.

GAUDRON J: Welding near combustible material is a natural

user?

MR BARNARD:

No, welding near combustible materials - you do

not look at that, we say, you look at the character
in Rylands v
of the use for the purpose of the test negligent but that does not make the character of the welding itself a non-natural use of the site.

GAUDRON J: What if you had stored radioactive substances

which at a certain temperature gave off gases? You
would look to the creation of the temperature
rather than the storage of the radioactive
materials?

MR BARNARD:

Not having knowledge of storage of radio active

substances, but one would look at the site and say
whether that is a common and ordinary use of that
site. Just as in Read v Lyons, some sites and

other cases to carry on munition factories. Some
sites, they involve dangers in them, and dangers of
very significant explosion if proper care is not
used, but the fact is munitions factories are
carried on in sites and it does not make it - the
fact that there is danger, and that when negligence
occurs that damage may occur, it does not make it a
non-natural use. It is a natural use and you must
base your cause of action in negligence and not on
strict liability in Rylands v Fletcher.

DEANE J: But if you are doing two things in the use of

land, one being welding, the other storing highly
combustible material, why can you not, for the
purpose of Rylands v Fletcher, combine the two
uses?

MR BARNARD: Well, let me say, in our submission, the

Full Court did not combine the two uses but there
is nothing unsafe about storing highly combustible
material.

DEANE J: But you did not, I think, appreciate my question,

and that is, if you are engaging in two uses of
land, why can you not combine them for the purposes
of Ryland v Fletcher?

Burnie(2)

1/12/92

MR BARNARD:

With respect, one would expect to find on a

port, highly combustible material and also welding
going on and the only basis in which you combine
them is taking into account the negligent act of
carrying them on so that they are associated with
each other or so that harm can arise.

DEANE J: But that really begs the question.

I mean, what

you are saying is if the land were 10 metres by
10 metres, the two uses would be dangerous and
unnatural. If the land is 100 acres and the two
uses are ten miles apart, if that is possible, it
is not -

MR BARNARD:

With respect, one might ask what the use is,

and perhaps it is not two uses. The use is -
building a cool store is the characterization to be
given to your two uses and there are other
combustible materials there too. Timber is
combustible and there are other combustible
materials no doubt, on this site, so if one wants
to use that categorization - and we say that
building a cool store on a port authority is a
natural use and, of course, there are dangers
associated with it if you are negligent in a great
variety of ways.
Now, I was about to refer to Handcraft and

that was, in fact, a jury action where the railway
commissioner was burning off on railway property
and - - -

MASON CJ: What was the reference to this?

MR BARNARD:

I am sorry, it is Handcraft Supply Co v

Commissioner for Railways, (1959) 77 WN (NSW) 84 and the objections were to be made to questions
which were asked in relation to Rylands v Fletcher
and these objections were considered in the absence
of the jury and the ruling was given in the absence
of the jury, and I particularly refer - of course,

this is after Hazelwood v Webber and, at page 86 in
the middle of the second column, His Honour said:
I therefore approach the application of

the rule to the facts of this case in order to
determine, primarily, at this stage what

evidence is admissible. In order to determine
that question, it is necessary, first, to
decide whether the question of natural user or
non-natural user is a question for the judge
or for the jury. It is then necessary to
consider whether, if it is a question for the
judge, it is a question to be determined by
me upon the evidence given in the case. These
are difficult questions indeed, but I find a
guiding light in the decision of the High

Burnie(2)

1/12/92

Court in Hazelwood v Webber. As I read the
decision of Gavan Duffy C.J., Rich, Dixon and
McTiernan JJ in that case, it is made clear
that it is the duty of the judge to determine
as a questions of law whether a particular use
of the land is a natural or non-natural user.
He then goes on to discuss Rickards v Lothian, and
on the next page, 87, says:
This view of the law, which appears to me

to be correct, commences with the principle
that the lighting of a fire is the creation of
a potential source of mischief and that if
that fire escapes the occupier of the land who
brought the fire into existence is prima facie

liable. However, if the fire was an accepted
incident of some ordinary purpose to which the
land is reasonably applied by the occupier,
that prima facie rule gives way. This does
not mean, in my view, that the matter is one
to be dealt with as a question of fact, with
the burden of proof being one way or another.
If the fire is an accepted incident of some
ordinary purpose to which the land is
reasonably applied by the occupier, then the
law does not raise the principle of strict

liability. The question cannot be regarded as
one of onus of proof, because at all stages,
what is being considered is a principle of
law. It, therefore, upon this reasoning,
falls upon the judge to determine whether a
particular use is a natural or non-natural

use. The manner in which he should determine
that is set out in Hazelwood v Webber in the

passage which I have quoted. None of the
factors there mentioned appear to me to
distinguish between the position of one owner

and the position of another owner. I do not
agree with Mr Jenkyn's submission that what
may be a natural user by one owner may be a
non-natural user by another owner.

So there we say - and he is saying not
distinguishing between the position of one owner
and the position of another owner, is really
looking at what the ordinary reasonable man does in
that area at that time, and not looking at what the defendant has done in the particular circumstances.
But His Honour Acting Justice Jacobs, over in the next column, says:
I have considered whether the present

position is analogous with either of these
positions, but I do not consider that it is.
It has been stated in the text books that what

Burnie(2)

1/12/92

may be a natural user of land in one time and
place may be a non-natural user at another

time and place. The concept is, apparently, a
changing one and, perhaps, this is one of the
rare cases where the law openly recognizes the
effect of social and economic circumstances
upon the determination of questions of law in
the judicial process. It appears to me that
there is no more than that which is involved.
The judge is bound to apply to the question
whether the user is a natural or non-natural
one the experience, conceptions and standards

of the community in which he is. The judge
must take into account all the various
matters, such as climate, character of the

country and natural conditions. He must bear
in mind the competing social needs which are
involved and he must, as best he can,

determine the matter as one of law. It is not
a very satisfactory situation, but it is not
one with which the courts are altogether

unfamiliar. The same problem arises in an
even more aggravated form in the consideration
of constitutional issues in the High Court.
Whether or not a particular Act is within the defence power is a matter of law, yet it
involves a considerable knowledge, indeed a
detailed knowledge, by the judges of the
conditions in the Australian community from
time to time.

And so he goes on and develops that theme.

Now, if the Court pleases, the most important
case in this context we would come to, and that is
Torette House v Berkman case,
the a case which this hearing before the Court of Appeal in New South
Wales and the judgment of Chief Justice Jordan.
This was the case where the plumber was employed to
do work on premises, and outside the premises and,
as I understand it, in the street there were two

stop cocks and one was turned off and he turned the
other off and when he had done his work - and the
one that was already turned off finished up in the
defendant's premises but had nothing connected to
it and, of course, when it was turned on water
flowed through it, and when the plumber had
finished his work he negligently turned them both
on so that the stop cock which was not connected to
anything allowed water to flow through and out the
end of the pipe and allowed it to escape to
neighbouring premises. But here there was a clear
negligence on the part of the plumber, and he was
an independent contractor, and the passage we would
refer to is particularly the passage of

Burnie(2)

1/12/92

Chief Justice Latham at page 646, two thirds of the

way down the page:
The damage in this case was caused, not

by the open pipe itself, but by the negligent
act of the plumber in causing water to flow
through it. It is now well established that
the installation of an ordinary domestic water
supply, though the water is under pressure,
does not bring the occupier of land within the
rule in Rylands v Fletcher -

and he refers to Blake v Woolf and other cases,
including Hazelwood v Webber -
In my opinion, the principle in Rylands v
Fletcher has no application to the present case.

And then he goes on, at page 648, in the middle of
the page:
The ordinary employment of a competent plumber
to repair a water service, which almost
invariably involves turning the water supply
off and on, cannot be regarded as an extra-
hazardous or inherently dangerous operation
which, by its very nature, must be regarded,
as a matter of law, as involving special
danger of damage to others. If the operation
is conducted negligently, as in the present
case, damage may undoubtedly be brought about.
But the very statement of the principle
excludes liability where it is only negligence
in the manner of conducting the operation, as
distinct from the character of the operation
itself, which will cause or will probably
cause damage to others.

And we say this is the principle, the very statement of the principle excludes liability:

where it is only negligence in the manner of
conducting the operation, as distinct from the
character of the operation itself, which will
cause or will probably cause damage to others.
Thus the plaintiff is unable to bring the case within the rule relied upon and, as no other
principle can apply to justify a finding of
negligence on the part of the defendant, it
must be held that there was no evidence of
negligence to go to the jury, and, therefore,
the decision of the learned trial judge was
right.

Burnie(2)

1/12/92

Now, from this case, frequently quoted is a
passage from Mr Justice Dixon at page 654, the
middle of the page, and he said:
If a trade or manufacture involves an

accumulation of water or the use of a volume
of flow bringing a new or increased risk of
its escape, the question will be, not whether
to instal and maintain a water service makes
the occupier liable under the rule of special
responsibility when he applies the water to an
industrial purpose, but whether the use by him
of the water obtained from it should be
considered as within the principle by which
that rule is qualified, namely, that "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". In determining such a
question the advantage to the occupier who
succeeds in the harmless use of an agency such
as a large quantity of water which is a
potential source of mischief, and the
frequency of its use by other occupiers, 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": Hazelwood v

Webber. Time, place and circumstance, not
excluding purpose, are of course most material
considerations.

That is the expression which is frequently quoted,
but we would point out that here Mr Justice Dixon
goes on, in the very next paragraph, and considers
the question of whether there can be liability for
the negligence of an independent contractor when

that negligence relates to realty. He says that:

As the plumber was an independent
contractor the defendant cannot, in my
opinion, be held vicariously responsible for
his negligent act.

But it is quite clear that Mr Justice Dixon as he
then was was not taking into account the negligence
of the plumber as part of the time, place and
circumstances which he regarded as material
considerations; in referring to those he was referring to the more general situation, the ordinary use by a reasonable man in all the
circumstances. In other words, whether it was a

Burnie(2)

1/12/92

natural or non-natural use, treating the negligence
as irrelevant to that consideration.
The approach which we say is contained there

is further supported by the decision of this Court
in Wise Bros v Commissioner for Railways,
(1947) 75 CLR 59. This is again Narrandera and
Wise Bros was the occupant of a flour mill at
Narrandera, and they were manufacturing sheep fodder, sheep nuts, to feed sheep. The premises
adjoined the railway. There was a store for the
flour, a flour mill and a factory in which the

sheep nuts were manufactured. The mill was
operated by electric power but the nuts had to be
cooked by means of steam, and the steam was
produced by a portable boiler and fire box standing
outside the sheep nut building. In circumstances
that were not determined the fire escaped from
those premises. It is significant, and it appears
at page 66, in the judgment of Chief Justice Latham
half-way down, the evidence was excluded and he
said:
There was some evidence that

fire-extinguishers were, or had been,
somewhere on the premises, but that they could
not be found on the occasion of the fire.
There was evidence that there was no fire
hydrant, available hose, or sprinkler system
in the buildings.
The plaintiff called Mr C.A. Milledge as

an expert witness for the purpose of showing
what precautions should have been taken

against fire in a flour mill. The learned
trial judge rejected his evidence on the
ground that he was not qualified as an expert.
Mr Milledge was a District Officer in the New

South Wales Fire Brigade organization. He had
twenty-five years' experience in fire
brigades. His duties consisted in making

building inspections. He had inspected many

flour mills and had acquainted himself with
literature relating to fire risks attached to

flour mills. He had had an extensive

experience of many kinds of fires. The
learned judge held that the witness was not
qualified to give expert evidence and rejected
his evidence.

It was here held by the Court that the use of the flour mill was not a natural user, but the action was sent back for retrial on the question of
negligence because of the failure to call
Mr Milledge.

Burnie(2)

1/12/92

Now, what we say about that is that if the
conduct of the mill in the particular circumstances
were relevant to the issue of Rylands v Fletcher, the cause of action in Rylands v Fletcher had to also be sent back for retrial. But the Court did
not regard the neglect in the running of this flour
mill at Narrandera as being relevant to the issue
as to whether it was a natural or non-natural use.
The case which I will not take the Court to is

the Eastern Asia Navigation Co Ltd v Freemantle
Harbour Trust Commissioners, (1951) 83 CLR 353.
That was the case where in the Freemantle Harbour
there was diesel oil on the water and a fire
occurred, and it was held to be a non-natural user.
We merely make the comment in relation to that that
there is nothing in that case which is in any way

inconsistent with our submission. Of course, there
were doubts in that case as to where the diesel
came from and as to whether the harbour trust was
responsible for its presence there.
We would therefore pass to Benning v Wong,

(1969) 122 CLR 249, solely to refer to a passage in
the judgment of Mr Justice Windeyer which the text
writers have described as "the modern exposition of

Rylands v Fletcher". In a long discussion of
Rylands v Fletcher we refer at page 301 to one part
of it, and that is the paragraph at the bottom of
the page where Mr Justice Windeyer said:
Finally it becomes necessary to consider

the "condition" - as in Read v J. Lyons & Co.
Ltd, Viscount Simon called it - a a "non-

natural use" of the land. I shall not try
here to see a clear view through the clouds of
ambiguities and uncertainties of that phrase.
The suggested substitutes of an
"extraordinary", "unusual", "abnormal",
"exceptional" or in the United States "ultra
hazardous" use seem to me to make confusion

worse. I shall not go through cases which may
be found collected in recent editions of
Salmond on Torts and Winfield on Tort and

other textbooks. Some of them seem to me to
make a natural or non-natural use of land
depend not on any certain objective criteria,
but on whether it is a use of such a character
that the defendant ought, in the opinion of
the court determining the particular case, to
take the risk of having a dangerous thing

where it was. The remarks of Viscount Simon
in Read v J. Lyons & Co. Ltd, and the
discussions by Professor Newark in his article
in the Modern Law Review ..... and by Dr Stallybrass in the Cambridge Law
Journal ... .. seem to me inconclusive.

Burnie(2)

1/12/92

He then goes on to Rickards v Lothian. We
just draw the Court's attention to that but we say
that Mr Justice Windeyer is there and in relation
to the non-natural use doing no more than lamenting
the absence of any objective criteria for

determining that. The decision of Rickards v
Lothian, which was regarded as the decision of the
Privy Council on appeal from an incident that
occurred in Melbourne, Rickards v Lothian is (1913)
AC 263 and that is where water from a lavatory
basin on the top floor of premises in Melbourne
overflowed and damaged property on the second
floor, the tap having been left on and the outlet
pipe having been plugged and found by the jury that
this was done by some stranger, a malicious act,
the plugging. In the circumstances, it was held that the use of water was an ordinary proper use
and therefore a natural use, but we refer to page
281 to 282 in the speech of Lord Moulton. At the
bottom of page 281:
Their Lordships are in entire sympathy

with these views. The provision of a proper
supply of water to the various parts of a
house is not only reasonable, but has become,
in accordance with modern sanitary views, an
almost necessary feature of town life. It is
recognized as being so desirable in the
interests of the community that in some form
or other it is usually made obligatory in
civilized countries. Such a supply cannot be
installed without causing some concurrent

danger of leakage or overflow. It would be
unreasonable for the law to regard those who
instal or maintain such a system of supply as doing so at their own peril, with an absolute
liability for any damage resulting from its
presence even when there has been no
negligence. It would be still more
unreasonable, if, as the respondent contends,
such liability were to be held to extend to
the consequences of malicious acts on the part

of third persons. In such matters as the
domestic supply of water or gas it is
essential that the mode of supply should be
such as to permit ready access for the purpose
of use, and hence it is impossible to guard

against wilful mischief. Taps may be turned
on, ball-cocks fastened open, supply pipes
cut, and waste-pipes blocked. Against such
acts no precaution can prevail. It would be
wholly unreasonable to hold an occupier
responsible for the consequences of such acts
which he is powerless to prevent, when the
provision of the supply is not only a
reasonable act on his part but probably a

duty. Such a doctrine would, for example,

Burnie(2)

1/12/92

make a householder liable for the consequences
of an explosion caused by a burglar breaking
into his house during the night and leaving a
gas tap open. There is, in their Lordships'
opinion, no support either in reason or
authority for any such view of the liability
of a landlord or occupier. In having on his
premises such means of supply he is only using
those premises in an ordinary and proper
manner, and, although he is bound to exercise
all reasonable care, he is not responsible for
damage not due to his own default, whether
that damage be caused by inevitable accident
or the wrongful acts of third persons.
We submit that, quite clearly, there
His Lordship is not determining natural use by
reference to the incidence associated with the
actual escape of water on the particular occasion.
He is saying you look at generally the use of water
in the premises and if it is a natural use, you
have got to accept that if there was going to be
liability, it must be because there is fault.
This is the last authority I will refer the

Court to, and merely tell it of the decision of
British Celanese v Hunt reported in (1969) l WLR
959, and that was a decision of Mr Justice Lawton,
and that is where the defendants carried on the
manufacture of electrical components but metal foil
strips were blown from the defendant's factory and
came into contact with an electrical sub station on
the estate causing a power failure which caused the

plaintiff's machines to halt. Now, this escape of
metal foil strips was clearly a negligent act and
the question is as to how you characterize their
activity and Mr Justice Lawton, at page 963, said
in relation to that, and this is the paragraph at
the bottom of the page:
I turn now to examine the relevant

averments in the re-amended statement of

claim. The defendants are alleged to occupy
premises on a trading estate. Such estates
are planned and laid out for the purposes of
accommodating manufacturers. The defendants
are manufacturers. It follows that they are
using this site for the very purpose for which
sites were made available on the estate. The
use of the site for manufacturing would be an
ordinary one: the use of the site for any

other purpose would be unusual. Does the
particular kind of manufacturing which is done
in the defendants' factory constitute, in Lord

Moulton's words, "some special use bringing with it increased danger to others"? The manufacturing of electrical and electronic

Burnie(2)

1/12/92

components in 1964, which is the material
date, cannot be adjudged to be a special use
nor can the bringing and storing on the
premises of metal foil be a special use in

itself. The way the metal foil was stored may
have been a negligent one; but the use of the
premises for storing such foil did not, by
itself, create special risks. The metal foil
was there for use in the manufacture of goods
of a common type which at all material times
were needed for the general benefit of the
community. It follows that the defendants'
first answer disposes of the plaintiffs'
contentions under this head.

And that is Rylands v Fletcher. And we say again,
that is the correct approach and consistent with
that laid down by this Court.
Now, we submit that to determine whether a use

is a non-natural use by reference to the particular
circumstance in which the use is made of the land,
rather than by reference to the character of the
use, produces possible consequences and the first
of those is to make occupiers strictly liable where

there is an absence of fault on their part. As
His Honour Mr Justice Dawson and Mr Justice Wilson
said in Stevens v Brodribb, the direction taken in
this Court has also been away from strict liability
for tortious behaviour.
We say again, the second possible consequence

is to make occupiers liable for collateral acts of
independent contractors. And that is what has
happened here, and we say such a result is
inconsistent with the principles laid down by
Chief Justice Jordan in Torette House Pty Ltd v
Berkman and approved by this Court in Stoneman v
Lyons.
We say further that the approach of the Full Court in Tasmania makes the cause of action in

Rylands v Fletcher substantially coterminous with
the cause of action in negligence except that
liability in Rylands v Fletcher is to be determined
by some vague concept of the use being dangerous or
hazardous or having potential mischief or potential danger, or some such expression like that. It is a concept which in our submission, is uncontrolled by
concepts of foreseeability of harm and the
existence of a relationship of proximity such as in
negligence, where the concept is under strict
control.
And we say that that causes confusion and

misunderstanding of the law and leads to wrong
results, and that Rylands v Fletcher should be

Burnie(2)

1/12/92

confined and it should not be seen as co-extensive
with the remedy of negligence which has become so
clearly defined within the law and which is
understood.
We say, fourthly, that the strange situation

here is that if this decision is correct, General
Jones can recover for the peas that were boiled and
vegetables which were boiled in the building which

they occupied. If a truck had pulled up on the
tarmac outside and, because the door was not open
he could not go in, he would have been standing on
the Port Authority's land, there was no finding of
negligence against the Port Authority, and there
was no escape from the Port Authority's land so he
would have no cause of action under Rylands v
Fletcher, and the anomaly would be that no recovery
could be made for damages for the vegetables or

whatever it was in that vehicle. We say, in the
circumstances, that the basis of this decision is
an unsatisfactory one.
I mentioned that I would refer to Read v

Lyons, (1945) KB 206. This is before the Court of
Appeal - and I particularly wanted to refer to the
passage of Lord Justice Scott, who did go into the
question of natural or non-natural use, the House
of Lords not finding that necessary because there
was no escape, but on this matter
Lord Justice Scott, at page 238, about the middle
of the page or just above it, said:

MASON CJ: What is this in? What is the citation?

MR BARNARD: It is (1945) 1 KB 216 at 238.

MASON CJ:

We do not appear to have that.

MR BARNARD:

It has been supplied to the Court.

apologize. I handed some to the tipstaff but not
all.

MASON CJ:

Thank you.

MR BARNARD: This was, as the Court will remember, the

munitions factory and, on page 238, Lord Justice
Scott said, just above the middle of the page:
Mr Paull's argument was so well put, and

is so far-reaching, that I have felt bound to
give it a full investigation, perhaps too

full. But for the reasons I have just given I
am satisfied that the principle of Rylands v
Fletcher is limited, as the Solicitor-General and Mr Valentine Homes both contended, to the case where the escaping water passes from the defendant's land on to the plaintiff's land

Burnie(2)

1/12/92

and there does damage. That escape from his
control is a purely neutral fact, except
evidentially as a link in the chain between
first cause and last effect. It is not a
feature of the defendant's conduct which, of
itself, attracts any legal liability to the

plaintiff. The vital feature in Rylands v
Fletcher which gave the plaintiff his cause of
action was the defendant's interference with
the plaintiff's right to enjoy his land
without interference by the defendant. It was
just that, and nothing else, which

distinguishes the case from Smith v Kenrick,
and brought it into line with Baird v
Williamson. That characteristic of itself
rendered it unnecessary in law to allege and

prove negligence. The same observation
defined in Rylands v Fletcher so as to embrace a case like the present on grounds of public policy in my opinion would be beyond the power of judges. It is matter for Parliament if it
applies to the action of conversion or trover.
is thought desirable. The law is too clearly
limited to-day for such judicial legislation.
I respectfully agree with the dictum of
Lindley LJ in Green v Chelsea Waterworks Co
Ld, quoted by Lord Wright in North Western
Utilities, Ld v London Guarantee and Accident
Co: "That case is not to be extended beyond
the legitimate principle on which the House of
Lords decided it. If it were extended as far
as strict logic might require, it would be a
very oppressive decision."
And it is on this basis we submit this Court should
find that the use made was a natural use and that
the decision of Mr Justice Neasey was correct.

BRENNAN J: Is there any requirement that the liability in

Rylands v Fletcher is limited to damage done by the

agency which is introduced on to the land of the

defendant? I mean, in some cases obviously fire is
introduced, fire escapes. Here there is no fire introduced, in a relevant sense, as I understand
your argument; it is welding next to the isolite
that we have to consider.

MR BARNARD:

I suppose, in a sense, fire is introduced in

that you bring welding equipment on to the land,
but it is not the welding equipment and the fire of
itself which causes it, it is negligent conduct in
relation to it, namely, putting a flammable
material where you are carrying out welding.

BRENNAN J:

Is there any case where the defendant has been

held liable, on a Rylands v Fletcher basis, for

Burnie(2)

1/12/92

escape of fire where the defendant has not
introduced the fire in the sense of deliberately
lighting it?

MR BARNARD: That could not be so. It has to be introduced

by the defendant or his servants or agents or,
alternatively, by his contractor if the contractor
is doing the act that he had contracted to perform.
So one, with respect, could not find such a case.
I was coming to that question of contractors and
introduction now.
So we say that, nextly, that if the escape of

fire did result from a non-natural use of the
premises the acts constituting such use were acts
of an independent contractor which were collateral
to the work it was employed to perform, and the
appellant cannot be held liable for them under the

rule in Rylands v Fletcher. Now, I seek to draw
attention, and I do not take the Court to it, but
Fleming in The Law of Torts, seventh edition, at
page 320 under the heading "Act of Stranger", and
whilst discussing Rylands v Fletcher suggest: the occupier is liable not only for the
defaults of his servants acting in the course
of employment but also of independent
contractors engaged to perform work on his
behalf -

and he puts it as generally as that and, again, at
page 308, Fleming, in the seventh edition, says: the employer of an independent contractor
might in some circumstances become liable for
a nuisance created in the course of the job.

Now, in the first passage he cites Rylands
v Fletcher and also Schubert v Sterling Trusts, a
Canadian case, to support his proposition. But we
say Rylands v Fletcher in the Exchequer Chamber -

there the Court will recollect that - and in the
on the part of the engineers who had designed and
Excheque Chamber is reported in (1866) LR 1
constructed the reservoir and, of course, their
negligence was in failing to, in the course of
constructing and excavating, find the five old
shafts which met with the shafts on the plaintiff's
land and which, ultimately, led to the flooding of
the coal workings. Regardless of the fact that
there was negligence on the part of these
independent contractors, we say what the Exchequer
Chamber was concerned with was merely that the
defendant had brought this reservoir on to his
land, and what Blackburn said on page 287 at the
conclusion of his judgment was:

Burnie(2)

1/12/92

The view which we take of the first point renders it unnecessary to consider whether the
defendants would or would not be responsible
for the want of care and skill in the persons
employed by them, under the circumstances
stated in the case.
But the court said that bringing this dangerous thing on to your land puts you at risk, made you strictly liable, and it did not matter that it was
somebody else's negligence that led to the escape
of it; you brought it on your land and you are

strictly liable by reason of that. And we say that
that is not authority for the proposition that is
cited; that the occupier is liable for not only the
defaults of his servants or agents, but also of
independent contractors engaged to perform work on
his behalf.
Now, Schubert v Sterling Trusts, (1943) 4 DLR

584, and there the defendant - and the very facts
speak for themselves - had employed a licensed
fumigator to fumigate his apartment house and, as
is well known, it said that the evidence
demonstrated that the gas in question is a most
deadly character to all living things and is of a
very penetrating nature and the work of the
licensed fumigator was negligent and the gas
escaped into neighbouring apartments and, needless
to say, this was a Wrongs Act claim. And we would
have thought that those very facts alone indicate
that Rylands v Fletcher would apply, regardless of
whether it was done with negligence or not, but
there would be strict liability if you brought
cyanide gas on to your premises. In fact, at
page 589, Mr Justice Hogg said, in the first full
paragraph:
The question whether the Harris Company

is to be regarded as an independent contractor
or not, does not seem to be material to the
issue for where the work to be done is

inherently dangerous the employer cannot
delegate to another, whether servant or
contractor, the duty to take precautions and
thus escape liability for the failure to
discharge such duty.

So, again, we would submit that that does not
support the proposition.
In respect of the latter proposition on page 308 of Professor Fleming's seventh edition, he
cites Bower v Peate, and I think I need not go to
Bower v Peate, because that decision has been
discussed in this Court in Stoneman v Lyons and
Stevens v Brodribb. And, of course, the Court will

Burnie(2)

1/12/92

recollect that Bower v Peate was where the
contractor had contracted to put in foundations at
a depth deeper than the premises next door and he
was doing the very thing that he was employed to do
and he failed to underpin the house next door, but
his employer, the defendant, had employed him to
excavate down below the foundations of the house
next door.
Of these cases, and we say the case of Mcinnes

v Wardle - and Mcinnes v Wardle was the fire case,
(1931) 45 CLR 548, where the man was sent out with
meat to cook for his meal and he was told to cook
it in the fireplace in a hut, and instead of
cooking it in the fireplace in the hut, he cooked
it elsewhere and that started a fire and his
employer was held liable in Rylands v Fletcher,
because he was doing what he was employed to do, he
had to cook his meat, and we say that case, that
Black v Christchurch Finance Co, Bugge v Brown,
(1919) 26 CLR 110, which again is a fire case of -
no, I am sorry, it is Bugge v Brown where the
servant was supplied with raw meat and told to cook
his meal. And again, Balfour v Barty-King, (1957)
1 QB 496, which was the case where the blow torch
was used by the independent contractor plumber to
unfreeze the pipe. But all of those fall within
the same category and all those cases, the
principal knew the contractor proposed to carry out
an operation which involved a non-natural use of
land and he did nothing to eliminate the danger,
and we say that those cases are adequately
discussed and dealt with in Stoneman v Lyons,
(1975) 133 CLR 550, and particularly we refer to
Your Honour Mr Justice Mason's judgment at pages
575 to 576, and also to Mr Justice Stephen at pages

565 to 566. But going to Your Honour the Chief
Justice's judgment, Your Honour said at the bottom
of page 575:
The respondents pointed to cases in which

a landowner has been held to be subject to a
duty of care. However, they are cases of
escape of fire (Black v Christchurch Finance
Co Ltd; Mcinnes v Wardle) or cases in which
the defendant infringed the plaintiff's rights
by interfering with his right of support
(Bower v Peate; Dalton v Angus & Co) or by
interfering within a party wall (Hughes v

Percival). In each case it may be seen that
the defendant was in breach of a duty which he
owned to the plaintiff.
higher duty than that imposed by the ordinary
It is true that in Bower v Peate,

Chief Justice Cockburn went further and said
that a person who orders the execution of a

Burnie(2) 38 1/12/92
work "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 responsible for the
damage caused. For the reasons which I have
already given this statement is too wide.
The principle that in the case of

dangerous operations there is a special
responsibility to take care does not exclude
the liability of a person who engages an
independent contractor to undertake an
operation which is inherently dangerous and
which injures a third party. But to make the
principal liable it must appear that he
himself was guilty of some negligent act or
omission or that he authorized some negligent
act or omission by the contractor in executing
the operations which the latter was employed
to carry out. This it may appear that the
principal is liable because he has failed to
take care to engage a competent contractor or
because, having knowledge that the contractor
proposed to executed the work in an unsafe
manner, he did nothing to eliminate the
danger.

We say that that covers all these cases, and we say
the principle again is supported by the judgments
of Justices Dawson and Wilson in Stevens v
Brodribb, (1986) 160 CLR 16.
I will pause there and say that Black v

Christchurch Finance Co seems to be quoted
everywhere, and that was the case where the man was
employed to cut and burn off bush, and to burn it

off in a favourable time in February next. We
wonder about this case and the suggestion from the
House of Lords, they said at page 56:
In the present case the clearing of the land

was authorised by a contract for felling and burning. It no doubt contained a stipulation
that an interval should elapse between the two
operations, presumably in order that the bush
cut should be thoroughly dried so that the

burning should be as complete as possible. It is not easy to say why "about February" should
have been specified as the time of burning,
for there is some evidence that the cocksfoot
harvest which would be endangered is usually
going on throughout that month.

It seems to have been tired in the supreme court in
Christchurch, and presumably - the case does not disclose it - the burning off occurred somewhere

Burnie(2)

1/12/92

near Christchurch. The man cut in November and
burnt off in December, and it appears that the
cocksfoot crop harvest would have been still around

in December so that the danger was there. One
cannot understand why it would matter that he burnt
off in late December rather than February when one
would have thought in the Christchurch area - it is
the same sort of climate as Tasmania - that the
fire risk would have been even greater at that time
than burning off in December. If one reads the
judgment, it really seems that he was employed to
burn it off in summer and, in fact, he did it at a
better time than doing it in February when one
would have expected the conditions to be worse;
and the cocksfoot, which was still endangered, one

would have expected to be drier. So accordingly,
we say of that case it is certainly covered by the
comments of Your Honour the Chief Justice in
Stoneman v Lyons.
Now, the fact, in our submission, that the

employment of an independent contractor relates to
welding is not to impose on the occupier who is his
principal, responsibility for acts of negligence.
We refer particularly to the judgment of
Mr Justice Dixon who considered the question when
you employ a contractor in relation to realty,
whether that places it in any different

proposition. Mr Justice Dixon referred to that in
Torette House v Berkman, (1940) 62 CLR 637,
particularly at pages 655 and 656. His Honour in
the middle of the page there said:
As the plumber was an independent

contractor the defendant cannot, in my
opinion, be held vicariously responsible for
his negligent act. It may be conceded or
assumed that the stopcock and the box
containing it are in the legal, control and
ownership of the defendant. 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. The plumber
was employed to do some work at the fittings
of the shop further down the street which had
been let to a new tenant. Other questions might have arisen if through his negligent
plumbing water had escaped from that shop.
His negligent act did not affect the condition
of the premises to which he had been admitted.
It was done in preparation for and in the
course of the work he had been commissioned to
do, but it is now well established that the
circumstance that the employment of an
independent contractor relates to fixed
property is not enough to impose upon the

Burnie(2) 40 1/12/92
occupier who is his principal responsibility
for acts of negligence in the course of his

work. None of the recognized grounds upon
which the principal may be held liable for a
contractor's negligence appears to me to
extend to the present case. Indeed, it is
enough to say that the question is covered by
the judgment of Wright Jin Blake v Woolf,
which has the approval of the Privy Council
(Rickards v Lothian).

We would comment that Blake v Woolf was a claim in
Rylands v Fletcher too.

MASON CJ:

Why does not the case fall within the third

sentence in that paragraph?

MR BARNARD:	I am sorry, why does?
MASON CJ:	Why does not the case fall within the third

sentence in the paragraph; that is:
a case 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 -

ie, allows the independent contractor to bring fire on to the premises whereby, in association with the stored isolite, they become a source of danger to a
neighbour.

MR BARNARD: Well, Your Honour assumes that "allows it to

come on to the premises in relation to or next to
stored isolites", but that is not the factual
situation here. All the contract is to do is to
put in the piping and put in the refrigeration
equipment, and it is not something that the
principals approved or authorized, and that is what
we say Their Honours are referring to here.

DAWSON J:

Who stored the isolite there, Mr Barnard?

MR BARNARD:

The evidence is the isolite was purchased by

Wildridge and Sinclair and what they used it for
was, as they put the pipes in place and welded the
pipes, it was in blocks which half fitted on each
side of the pipe and they were cemented
together - - -

DAWSON J: Well, it was brought there by the independent

contractor?

MR BARNARD:

It was brought there by the independent

contractor and it is true to say that - and as
Mr Justice Neasey found - one of the Board's
engineers saw it being lifted up into the roof,

Burnie(2)

1/12/92

when it all had to be used in the roof, and saw the
boxes being thrown aside as it was lifted up but
did not see them stacked and was not aware where

they were stacked on the relevant day. The
independent contractor had to use that sort of
covering for the pipes to insulate them and, of
course, the problem is that it was the cardboard
boxes that were the accelerant which enabled the
isolite to be set alight because as heat hits
expanded polystyrene it melts and shrinks away from
it and it does not light, unless there is great
heat, but the cardboard boxes provided an
accelerant which enabled, as His Honour found, the
isolite to become alight.
So it is our submission here that where an

occupier employs an independent contractor to
perform an operation which is not hazardous, the
operation, when it is skilfully and properly
performed, does not constitute a natural use of the
property, the occupier is not liable for the
collateral action in negligence of the contractor.
And we say that the welding in the Port Authority's
yards, constructing a building in a Port
Authority's yards, constructing a cool store, is a
natural use, it is an ordinary every day use of the
premises.
Here, as Mr Justice Cox points out at

page 2370 line 40:
it was not argued that the negligence of the
contractor was other than purely collateral.

That is from Mr Justice Cox's judgment. That is at
page 2370, line 40.

We come to the third matter. The common law

as to fire is stated in Beaulieu v Fingiam that the
occupier of a house or land is liable for the
escape of fire which is due to the negligence, not
only to his servants but also of his independent

contractors and his guests, we say has been
absorbed in the principle of Rylands v Fletcher and
the strict liability of the common law is subject
to the qualification of and exceptions to that
principle. I start at the end and historically and
chronologically refer to Hargrave v Goldman, (1963)
110 CLR 40 and particularly at page 58 where
Justice Windeyer at the bottom of the page said:
And that, according to the finding of the
learned trial judge was what happened here.
But putting the statute aside does not mean
that we are thrown back to the rigorous rule
of the mediaeval common law. This Court - - -

Burnie(2)

1/12/92

McHUGH J: But Mr Barnard, why are you dealing with this

matter? It does not concern you, does it? This is
a matter raised in the notice of contention.

MR BARNARD:

That is so, Your Honour.

I was raising it -

McHUGH J: Are you splitting your case, are you?

MR BARNARD:

No, I am not.

Mr Justice Brennan raised this

and the fact is there is a very long line of
authority that we have not put in our argument but
Justice Windeyer has said there that the principle
of Rylands and the strict liability to common law
is subject to its qualifications.

MASON CJ:

Mr Barnard, the point taken by Justice McHugh is

correct, it is in response to the notice of

contention. I think it is better if we follow the
usual procedure.

MR BARNARD:	I am happy with that, Your Honour.
MASON CJ:	It will provide a break. We hear what Mr McAlary

has to say at this stage.

MR BARNARD:

I am not anxious to be provoked into spending

more time than need be. I leave the other matters,
then, that are also raised in the notice of
contention that we referred to. If the Court
pleases.

MR McALARY:

Your Honours, I would hand up copies of our

submissions.

MASON CJ: Yes, thank you.

MR McALARY:

Your Honours, may I start by saying a word or

two about the history of the relationship between
the original common law rule in connection with
fire and Rylands v Fletcher and I will need, of
course, to come back to it in due course.

That history really starts with a decision reported in the year books, Beaulieu v Finglam,
(1401) Year Book 2 Henry IV Folio 18.

MASON CJ: Before you take us back into the prehistoric

past, perhaps we might read your outline of
submission.

MR McALARY:

I was going to say I do not ever follow my

outlines of submissions. When I am for the
respondent, I tend to listen to the argument and
then try to reply in a way which will accommodate,
but - - -

Burnie(2)

1/12/92

MASON CJ:

You are suggesting that we would be wasting our time reading it?

MR McALARY:

I am never sure whether they have any value or not. But Your Honours, let me go to the outline of

submissions quickly. What I have sought to do was

to try and provide in section A of the outlines of

submissions, a summary of what appeared to be the
relevant facts contained in some 12 volumes of

material.

What I set out was that the Burnie Port

Authority owned the complex, that it was in the course of construction of an extension and that it

had licensed the respondent rooms 1, 2 and 3 for

the storage of refrigerated vegetables.

Perhaps the important thing, Your Honour, are
paragraphs 3, 4 and 5 which deal with the
characteristics of isolite. It is an expanded
polystyrene, highly flammable. In layman's terms
it is twice as flammable as soft wood. It burns in
a similar fashion to a solid fuel and has a high

calorific value, about 95% of crude oil. Once
alight it burns fiercely as a geometrical
progression, that is, 2, 4, 6, .... Not an AP, but

GP. During manufacture a retardant is inserted but
that has the effect of inhibiting c.ommencement of
burning, but no effect once the ignition starts.
It will only ignite if there is a flame applied to
the substance. Such a flame can be provided by
burning cardboard or wood or clothing or matters of
that character.
Your Honours, the next features of the facts

are relevant to the question of whether the notice
of contention, that is the issue of negligence, and

I would leave those until I come to that issue,
Your Honours.
After that I set out at page 3 the four

relevant relationships between the parties. The
one in nuisance is not pressed, so we are concerned
with the relationships consisting of the original

common law principle, ignis suus, the
Rylands v Fletcher liability principle and
negligence, and negligence perhaps in the extended
form referred to by Your Honour in Kondis.
So far as the ignis suus principle is

concerned, might I just start with that. It is
towards the back of the submission, Your Honour.
I think it is about page 9 or 10, at the bottom of
9, and what I was seeking to say there,
Your Honours, was that - and this is a short
examination of the history - that the original form
of the principle was that a person was responsible
for the escape from his house or subsequently his
clothes, of any fire which could be described as

Burnie(2)

1/12/92

his fire; the words ignis suus, of course, meaning

"his fire", and the issue was whether or not there
had been an escape of a fire which could be
characterized as his. If it could, liability
attached.
My own view was that it was irrelevant whether

there was negligence or not at that point of time.
But in deference to what is written in the judgment
of Mr Justice Zeeman in the appeal books, it is not
clear whether there was negligence or not required
in the original formulation.
In this Court in Bugge v Brown it was argued

that negligence was not necessary in the original
formulation, and may I just say, Your Honour, that
you can find Beaulieu v Finglam translated in
Fifoot's History and Sources of the Common Law. I
am fortunate enough to have a copy of that myself,
I do not know how I acquired it but I acquired it
somewhere, and I was therefore able at least to

read it. My latin is not that good.
But moving forward 300 years to 1698, by the

time Tuberville v Stamp was decided negligence was
clearly required, and if you look at Tuberville
v Stamp you will see that the term of the
allegation in the statement of claim was tarn
improvide et negligenter custodivit ignem suurn, so
clearly negligence was required thereafter, and
indeed that seems to have been the position

accepted in England. So that what one found was at
common law before Rylands v Fletcher, if the fire
which escaped from your premises could be fairly
described as your fire, ignis suus or ignis suurn if
you use the accusative case, then liability
attached to it. It was said in those cases that
liability attached if it was lit by the
householder, by his family, by his servants,
liability did not attach if it was the fire of a
stranger.

Now, when Rylands v Fletcher arrived in its initial form it was, I think, as Your Honours
observed this morning, the size of the water that
was the problem and which gave rise to the
liability, but in connection with fire there seems
to have been initially little doubt that the two,
that is the old ignis suus rule and the Rylands
v Fletcher rule, encompassed the same ambit with
one exception and that was the introduction of the
non-natural user requirement in Rylands v Fletcher.
So that if you looked at the fire rule as it stood
at common law before Rylands v Fletcher it was a
liability for the escape of a fire described as his
fire, that is other than strangers' fires, if
negligently lit. Rylands v Fletcher then came in

Burnie(2)

1/12/92

and added to that that the fire had to be the

result of a non-natural user. So you had those two
differentials in Rylands v Fletcher non-natural
user as an excuse, in the old rule negligence as a
requirement, but in both cases the fire would be
regarded as his fire if it was the fire of an
independent contractor.
Now, what I have been saying, Your Honours, is

largely taken from Balfour v Barty King, which is
the decision in England in 1957 where Lord Goddard

outlined the history of the fire rules. May I take
Your Honours to that? This was an independent contractor, Your Honours, who had been employed for

the purpose of defreezing certain pipes. He was
using a blow torch, which was common usage.
Now, without worrying about the particular

facts in the case, one may find at the bottom of
page 502, page 503, the outline of the history as

His Lordship puts it. May I go to that:
The earliest case on the subject which

the industry of counsel or our own researches
have discovered is Beaulieu v Finglam,
conveniently translated in Mr Fifoot's History

and Sources of the Common Law. It will be
noticed that the writ was founded upon a
common custom of the realm and alleges that
the defendant so negligently kept his fire
(ignem suum) that the goods and chattels of

the plaintiff were burnt. The court held that
a man shall answer to his neighbour for each
person who enters his house by his leave or
knowledge or is a guest -

so, that is the type of ambit -
if he does any act with a candle or aught else
whereby his neighbour's house is burnt. But,
said the court, if a man from outside my house

and against my will starts a fire in the
thatch of my house or elsewhere whereby my
house is burned and my neighbour's house is
burned as well, for this I shall not be held
bound, for this cannot be said to be done by

wrong on my part, but is against my will. The
next case to be found in the books is better
known, Turberville v Stamp. The declaration
alleged that, according to the law and custom
of England, every man is bound to keep his
fire safely and securely by day and by night
lest for want of due keeping any damage in any
manner happen, and then went on to allege that
the defendant so negligently and improvidently
kept his fire in a close of heath that for
want of the due keeping the plaintiff's heath

Burnie(2)

1/12/92

and furzes were burnt. In both these cases
the first part of the declaration appears to
assert an absolute duty to keep the fire safe,
but, by the latter words, to claim in
negligence. The court in Turberville's case,
after saying that a fire which a man makes in
his field is as much his fire as his fire in
his house, says that he must at his peril take
care that it does not, through his neglect,
injure his neighbour, but adds if he kindles
it at a proper time and place and the violence
of the wind carry it into his neighbour's
ground, this is fit to be given in evidence,
"but that here it is found to have been by his
negligence. "
So the act of God situation was another
excuse, though here it was not just an act of God
but negligence in failing to keep.
Sir William Holdsworth ..... thinks that by

the time this case was decided, 1698, lawyers
were beginning to think it was anomalous that
a man should be liable for fire damage not
caused by negligence, and that this was one of the reasons for the Act of 1707, 6 Anne, c 31,
which provided that no action should lie
against any person in whose house a fire

should accidentally begin. That was re-enacted, and I need not read

Your Honours that portion. May I just say, though,
that coming to the next page, 504, in the first
paragraph commencing on that page:
The precise meaning to be attached to "accidentally" has not been determined, but it
is clear from these last two cited cases that
where the fire is caused by negligence it is
not to be regarded as accidental.

Then they go to who is a stranger, a matter taken

up also by Lord Denning in Emanuel's case, and
clearly in Black v Christchurch Finance, the
independent contractor who had been employed was
not to be regarded as a stranger; he was treated as
a person for whose act the owner was responsible,
so that the fire remained the owner's fire.
However, if the act done by a person who is upon
the premises with your permission, independent
contractor, bailee, guest, is so far removed from
anything that might be expected of him that it
becomes a frolic of his own, to use a term taken
from the workers compensation law, then he would be
a stranger.

Burnie(2)

1/12/92

So, Your Honours, that really is all I need to say, I think, about Balfour v Barty-King.

May I
say that it is, of course, a case in the 1950s and
that it is probably the first modern re-affirmation
of ignis suus.
The other authority which bears on this issue

is the decision in England in Emanuel v Greater
London Council, (1971) 2 All ER 835, a decision of
the Court of Appeal, Lord Denning, Master of the
Rolls, Lord Edmund Davies and Lord Phillimore.
What occurred there, Your Honours, was that certain land consisting of two pre-fabricated bungalows was

owned by the Greater London Council. They wanted

the bungalows removed. They arranged to have the

housing ministry do that. The housing ministry

employed an independent contractor. He burnt upon
the land, the fire escaped, and it burnt the land

of the plaintiffs. Held, at page 835:
Held - An occupier was liable for the escape
of fire caused by the negligence not only of
his servant, but also of his independent
contractor and anyone else who was on his land
with his leave and licence; the only occasion
when the occupier would not be liable for
negligence was when the negligence was the
negligence of a stranger, although (per
Lord Denning MR) for this purpose a "stranger" would include a person on the land with the
occupier's permission who, in lighting a fire
or allowing it to escape, acted contrary to
anything which the occupier could anticipate

that he would do; in the present case the
council were "occupiers" ..... K's men were not
"strangers" because, although they were
forbidden to burn rubbish, it was their
regular practice to do so; the
council ..... were liable for the negligence.
Now, turning to the question which deals with

the history, one can pick it up at page 838e: But the occupier is not liable for the
escape of fire which is not due to the
negligence of anyone.

This is the ignis suus rule.
Sir John Holt himself said in Tuberville v
Stampe that if a man is properly burning up
weeds or stubble and, owing to an unforeseen
wind-storm, without negligence, the fire is
carried into his neighbour's ground, he is not
liable. Again, if a haystack is properly
built at a safe distance, and yet bursts into
flames by spontaneous combustion, without

Burnie(2)

1/12/92

negligence, the occupier is not liable. This
is to be inferred from Vaughan v Menlove. So
also if a fire starts without negligence owing
to an unknown defect in the electric wiring:
Collingwood v Home and Colonial Stores, or a
spark leaps out of the fireplace without
negligence: Sochacki v Sas. All those cases
are covered, if not by the common law, at any
rate by the Fire Prevention (Metropolis)
Act 1774 ..... But that Act does not cover a
fire which begins or is spread by negligence.

I need not refer you to the cases. They are clear.
Nevertheless, as I have said earlier, the occupier is not liable if the outbreak of fire is due to the negligence of a "stranger". But
who is a "stranger" for this purpose? In
Beaulieu v Finglam Markham J put this case:
"If a man from outside my household

against my will sets fire to the thatch of my
house or does otherwise per quod my house is
burned and also the houses of my neighbours, I
shall not be held to answer to them, because
this cannot be said to be ill on my part, but
against my will."
In Tuberville v Stampe, Sir John Holt CJ said:
" ... if a stranger set dire to my house,

and it burns my neighbour's house, no action
will lie against me ... "
Who then is a stranger? I think a "stranger"
is anyone who in lighting a fire or allowing
it to escape acts contrary to anything which
the occupier could anticipate that he would do
so: such as the person in Rickards v Lothian.

Your Honours will remember that what happened in

Rickards v Lothian was that in Melbourne, a water
pipe, I think in the bathroom, was plugged by a
malicious stranger and that led to the overflow of

water. So the person who plugged the pipe is

treated as a "stranger". And I will read on:
Even if it is a man whom you have allowed or
invited into your house, nevertheless, if his
conduct in lighting a fire is so alien to your
invitation that he should qua the fire be
regarded as a trespasser, he is a 'stranger'.
Such as the man in Scrutton LJ's well-known
illustration:

Burnie(2)

1/12/92

'When you invite a person into your house to
use the staircase you do not invite him to
slide down the bannisters ... '
which was quoted by Lord Atkin in Hillen and
Pettigrew v ICI (Alkali) Ltd. It seems to me that the New Zealand case of Erikson v Clifton falls within this category.
May I pause - I do not wish to take Your Honours to
it, but it is a good example because the defendant
had invited an independent contractor to provide a

quote for certain clearing work upon her land. The
independent contractor delivered the quote. There
was to be some burning, but it was not to take

place for some months. The independent contractor
simply there and then, and without warning, and
contrary to all instructions, proceeded to set part
of it alight. He was treated as a stranger for the

purpose of that piece of litigation. And then,
reading on:
The schoolmistress could not possibly have any idea that the man who came to look at the

garden would light a fire. It was alien to

anything which she permitted him to do. He
was in that respect a 'stranger'.

His Honour states the law, as he sees it, at the
bottom of the next paragraph e, and I adopt it:
The occupier is liable for the escape of fire
which is due to the negligence of anyone other
than a stranger.

Now, with respect, we say that is the principle at common law, and it is the one which we submit in
support of the notice of contention, and we adopt
that.
Your Honours, can I come back to that material

in due course and, indeed, I want to say something
about the suggestion that this cause of action has
been subsumed in Rylands v Fletcher, but it would
fit more easily into the thrust of my submissions
if I was to take Your Honours to Rylands v Fletcher
itself initially.
Your Honour, may I make these points about

Rylands v Fletcher which I wish to develop, and
they are set out in some detail at page 6 of my
submissions. Now, the first point, Your Honours,
is that really the only issue that was raised in
relation to the Rylands v Fletcher cause of action
was in relation to natural or non-natural user,
otherwise the criteria were fulfilled and there was
no issue about that. So, we are turning to

Burnie(2)

1/12/92

consider the question of natural and non-natural
user.
Now, Your Honour, in connection with those

there are certain points that are worth making

before one goes to the cases. The first of those
points is that non-natural user is an issue of law;
it is an issue for the Court. That has been laid

down in Hazelwood v Webber. Hazelwood v Webber has
been followed on that point on a number of
occasions; I do not understand it ever to have been
in dispute. So it starts off as an issue of law.
But there are issues of fact to be decided before the issue of law can be decided; one needs to know
the issues of fact, so the issues of fact are an

issue for the jury. The issues of fact having been
determined, the issue of law then arises for the
court to decide whether the user is natural or non-
natural.
In my submission, this issue of natural or

non-natural user, in this cause of action, operates
in exactly the same way as the proximity issue
arises and operates in the cause of action in

negligence. We would say, with respect, that it is
the controlling mechanism under which the law
allows particular situations to come within or to
drop out of, that is to expand or contract, the
areas of strict liability.
Now that, with respect to Your Honours, is the

way we say the issue of natural or non-natural user

operates. The question of whether the user is a
natural or non-natural user, is determined by

several cases of significance and importance. The
first of them, of course, is the decision of the
Law Lords in Rickards v Lothian, and this Court in

Hazelwood v Webber. You put those two together and
you find, in my submission, that non-natural user
is a special user of the land bringing with it
increased risk and danger to others in the time,

place and circumstances in which the user occurs.
So you have, in the one concept, special user,

increased danger to others - they are taken from

Lord Moulton's advice in Rickards v Lothian - and whether the user is special or otherwise has to be
determined by reference to the time, place and
circumstances in which the user occurs. That is
taken from Hazelwood v Webber, part of the passages
that my friend read, but I wish to carry further
those passages in due course.

MASON CJ:

Mr McAlary, this may be a convenient time to

adjourn. The Court will resume at 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

Burnie(2)

1/12/92

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr McAlary.

MR McALARY:

Your Honours, before lunch I had been

attempting to indicate what I wished to say after
lunch concerning the issue of natural and non-
natural user. If I may just repeat what I said
before lunch: it was that the issue is an issue of
law; it is to be determined after the jury or the
tribunal of fact has found the relevant facts; and,
it operates in the same way as proximity does in
relation to the tort of negligence. That is, it is
the criterion for expanding, restricting the ambit of the strict liability, and the issue is a matter of time, place and circumstance. It is a question of whether there is a special user in the
particular time, place and circumstance.
May I go to the case which my learned friend

went to in the course of his address because, in
our submission, this is critical to the whole case.

I refer to Hazelwood v Webber, 52 CLR 269. The
headnote is at 268:
The appellant lit a fire on his land on

15th February 1933, for the purpose of burning
off stubble. The stubble was burnt off as an ordinary farming operation, and in the way in which the majority of farmers in the district
burn their stubble.

But there was a high wind and it spread the fire from the stump to the respondent's land.
Held that the burning of vegetation in

the open in midsummer is not a natural or
ordinary use of the land and therefore the
appellant was liable independently of

negligence for the consequences of the
escape -

Indeed, Your Honour, the jury negatived negligence. Then, just passing through, it is of
interest, Justice Deane, to notice that the junior
counsel for the appellant was Mr Stuckey. But
going to the judgment, if I can take Your Honours
to 274, which is the majority judgment, right at
the start:
the common law imposed upon the occupier of
land, who used fire upon it, a prima facie
liability which was independent of negligence
for the harm suffered by his neighbour as a
natural consequence of the escape of the fire.

Burnie(2)

1/12/92

I must say that when I originally read this I
assumed that the original common law was
independent of negligence on the basis of what
Mr Justice Dixon had written. Whether that is true
I am not sure, having regard to the research which
I have indicated in the appeal book of

Justice Zeeman in the court below. But in any
event it is irrelevant. Let me then just go to
page 275:
In the present case, we are concerned with one only of these grounds.

That is, exemptions.
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.
And he then turns to the question of whether

there was a statutory intervention and that is

discussed at 275 and 276. And if I could turn to
the last sentence in the last paragraph on 276
where Their Honours conclude that:
the Careless Use of Fire Act .... . otherwise to
leave the law of civil liability unaltered.

So, we are dealing only with the law of civil
liability.

The case, therefore, turns upon the

question whether the use of the fire made by
the defendant was such as to fall outside the

strict liability independent of negligence and
expose him to civil liability only on the
ground of negligence which the jury's verdict
has negatived.
So it is clearly a case of strict liability, no
negligence.
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

Burnie(2)

1/12/92

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.
And then we would look to the countervailing
consideration the other side of the lantern.
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 -

then, Your Honours -
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.

natural user and, if I can just turn over the page, Then he turns to consider the case law on
because if we go to the top of page 278 in the
second line, one finds the summary of the
situation:
But in the decision which finally confirmed

absolute responsibility, namely, Rickards v

the general application of this exclusion of that the occupier's liability independent of negligence arose from -

now, we submit, with respect, this has always been
followed and would not be departed from by
Your Honours -

Burnie(2)

1/12/92

"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. "
Then Their Honours turn to apply that.
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.

I ask Your Honours to note those because, when you
come to apply those to the issue of the isolite
ignition in this case, they are very considerable
matters of importance.
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.

He then turns to discuss fire in Australia in
mid-summer, and this is a question - they are
really looking at a question of law.

McHUGH J: There is some difficulty in reconciling the

actual decision in this case, is there not, though,

with other cases? I mean, supposing a steel maker
brings an open hearth furnace on to the land for
the purpose of making steel, is that a non-natural
user of land, or is that a natural user of land?

MR McALARY:

Your Honour, if all you do is you have an open

hearth furnace in Wollongong, it would be probably
a natural user in that industrial area and, indeed,
I think I had conceded in the course of the special
leave application that to have a cold store in the
port area at Burnie would have been a natural user

of that land. But it is the issue of the
additional special risk.

Burnie(2)

1/12/92

McHUGH J:

Does anything turn on the level of abstraction in

which you characterize the use? For example, in
this case it is the use of the welding that seems
to have been looked at as the user but another view
is that it is the construction of a building.

MR McALARY:

No, Your Honour, with respect, obviously

counsel can take one set of facts and classify them
in a whole variety of different ways, but by no
means would anyone have contended, as I understand
it, it was the mere construction of the building
which attracted the absolute liability. We would
have said, with respect, that it was the ignition
of fire - - -

McHUGH J: Well I notice in Read v Lyons, I think it was Lord

Simmonds described the user as "manufacturer of
ammunition". It seems a very general description.

MR McALARY: Well, Your Honour, Read v Lyons I have always

seen only as an escape case and that really was the

ratio of Read v Lyons. I would not, myself, have
regarded it as relevant to any issue that arises in
this case. I would have submitted, with respect,
that the real issue here is the question of time,
place and circumstance which - - -

MASON CJ:

What do you say are the circumstances that

attract absolute liability in this case?

MR McALARY:

Your Honour, I go back to Lord Moulton.

It has

got to be a special use. That is, something that
is in the setting in which it is done is a special
use, and it has to bring with it increased danger

to others. Now those are the two factors which, if
they occur, attract absolute liability.

MASON CJ: Are you saying that the conduct of the welding

operation was the special use which attracted
absolute liability in this case?

MR McALARY: Well, Your Honour, the carrying out of -
MASON CJ:	The welding operation and something else.
MR McALARY:	And something else.
MASON CJ:	What is the something else?
MR McALARY:	The carrying out of a welding operation

insufficient proximity to the isolite which was

stored or stacked in the roof void. Can I break
away for the moment and seek to try to attempt to
deal with the issue raised by Your Honour the
Chief Justice?

Burnie(2)

1/12/92

There is really no dispute of fact, in this

case, if I may say so. The afternoon before this
fire, Cooper, who was a consultant or part-time
employee - he seemed to fulfil both roles with the
Burnie Port Authority - saw cartons of isolite
being hauled up the outside of the building and
moved into the roof void. These were supposed to
have been kept in some machinery room. He also saw them when they were being moved into the roof void, being thrown between two RSJs; he said that that

was the last place that he saw them. They were in

a jumbled heap. He had also confirmed in the week
immediately before the fire that the welding on the
different beams within the steel structure which
was intermittent or tack welding - that is,
Your Honour, a tack all along the weld - would be
filled in so you had a continuous flow of welding.
The areas which had to be done were the very areas
where these RSJs were last seen by Cooper.
His Honour found that the cartons had been moved or
stacked a little further over and these were
underneath a plate attached to the portal of the
roof, which was to be the suspension of a
refrigerator unit which was being installed.
The next day the fire started, and His Honour found that it started because of welding which was
being carried out on the plate which was at the top

of a channel beam. You have an RSJ like that,
which runs parallel to the ceiling. Initially the
cartons of isolite had been thrown over that RSJ
and were seen between that one and another one. They were then restacked apparently just on the
other side of the second RSJ.
On this RSJ Whyman was standing and he was

welding a plate at eye height. So he was standing
on the RSJ and he was carrying out his welding at

about that height on a plate. To his left, or
maybe it was to his right - I am not sure which way
he was standing - and across between the two RSJs

was the stack of isolite cartons. It was welding dropping from the torch on to the isolite cartons that caused the fire. The fire itself would not
have started had there not been some form of
carton, cardboard, perhaps clothing, shaving, wood,
something to get a flame going. Once the flame was
going though a tremendous flame and a tremendous
fire was going to occur because the degree at which
the fire progresses is a geometrical progression,
and in this case I think it took less than three to
four minutes for the men who were in the roof void
to flee it. Indeed, some of them could not even go

down the ladders. They had to slide down RSJs and
the building was down within five or six minutes.

Burnie(2)

1/12/92

So the potentiality of a tremendous
conflagration was there, and it was there because
of the stacking of the cartons of isolite. Those
cartons were being used, as my learned friend,
Mr Barnard, explained to Your Honours earlier this
morning, as lagging for the refrigeration pipes. So the cartons of isolite, instead of being left
downstairs had to the knowledge of Cooper, who was
the PPA man, been brought up, placed in the roof in the areas where this welding was to take place, and indeed under one of the particular wells that was
to be done, and it was the doing of that which
produced the fire.
Now, Your Honour, coming back to the question

that Your Honour was putting to me, we would
submit, with respect, that the special use was the
carrying out or welding in close proximity to the
storage of a potentially dangerous expanded
polystyrene. It is the combination of the two

factors. I would accept that welding by itself
simpliciter is not a non-natural user, it is a

natural use as the trial judge found. But if you
take welding in this setting then we would say,
with respect, that it carried with it the
potentiality of great damage or harm and it was a
non-natural user, it was a special use bringing
with it the increased risk to neighbours.

McHUGH J: That seems equivalent to saying that if you

conduct your glass furnace with an effective wall
in the furnace it becomes a non-natural user.

MR McALARY:

No, I would not have thought so, with respect,

Your Honour. If the usage of the land is
appropriate for conducting steel making operations,
then if there is something that goes wrong which is
a result of the steel making operations and the way
in which they take place, then that would give.rise
to a claim in negligence, but it would not bring
with it the type of increased risk of damage to

others. It may, in fact, do that but it does not
necessarily do it, Your Honour. Here there is,
without doubt - the clear fact is that conducting
welding, and the welding was conducted with
negligence but that does not matter, in an area
where if the risk comes to fruition it is going to
produce an abnormal result in terms of its damage,
in our submission, brings in the second aspect of
the characteristics which attach strict liability,

and the other is the special use. It is really a
matter, in our submission, where you cannot seek to

take out and divide it up into items. The whole
thing must be taken as a single entity.

Burnie(2)

1/12/92

McHUGH J:

And your argument seems to suggest that in the

Wagon Mound a plaintiff should have succeeded on
Rylands v Fletcher basis?

MR McALARY:

Your Honour, I am not sure whether Rylands

v Fletcher could be - I know there are cases that
say it applies to a ship but I would not have
thought so, with respect, Your Honour. But, in any
event, Your Honour floors me with that because I
have not read the Wagon Mound for this case. I
think I have read everything else but I did not
read the Wagon Mound.

MASON CJ:

Now, to what extent is knowledge on the part of

the occupier of the risk, say, in this case
knowledge of the presence of the isolite, stored in
cartons in proximity to the welding operations

essential to hold the occupier liable?

MR McALARY: That is a question that His Honour

Mr Justice Deane asked at the leave application. I
think, with respect, I can satisfy Your Honours

that it is not essential. Can I do that by taking
you to the relevant authorities?

MASON CJ: Yes.

MR McALARY:

I will take Your Honours to the most important,

which is Rainham Chemical Works v Belvedere Fish
Guano, (1921) 2 AC. Now, Your Honours, this is an
interesting case because it is very, very close to
this case. What had happened there, Your Honours,
was that the defendants were storing dinitrophenol
on land in their possession. Dinitrophenol was an
inert chemical but in quantities and if exposed to

flame it was highly explosive. By itself, it was
completely safe.
What they did was, they stored it in bags and

boxes which had contained nitrate of soda, if I
remember; yes, nitrate of soda, and nitrate of soda
was capable of producing the explosive. They did

Can I read Your Honours now what appears in the not know that, but they were still held liable. judgment of Lord Buckmaster at page 471:
Now, the foundation of the action was a

claim based upon the familiar doctrine
established by the case of Fletcher v Rylands,
which depends upon this - that even apart from
negligence the use of land by one person in an
exceptional manner that causes damage to
another, and not necessarily an adjacent
owner, is actionable -

and he refers to West v Bristol Tramways.

Burnie(2)

1/12/92

In the present case the use complained of was that for the purpose of making munitions,
which was certainly not the common and
ordinary use of the land, two substances,
namely, nitrate of soda and dinitrophenol,
were stored in close proximity, with the
result that on a fire breaking out they
exploded with terrific violence. It may be accepted that it was not known to either of the defendants that this danger existed, but
that in itself affords no excuse, and the
result is that the plaintiffs' cause of action
is well founded and the only matter for
determination is against whom the action
should be brought.

MASON CJ:

The problem in using that case is that it was, in

any event, a non-natural use of land. You did not
have to rely on the risk or knowledge of the risk
to establish non-natural user.

MR McALARY:

Yes.

Now, let me take you to Lord Sumner,

because I think he deals precisely with the issue
which Your Honour the Chief Justice raises. At
page 479:
My Lords, when stored in large quantities

dinitrophenol is a dangerous explosive. A hot
flame is needed to explode it, but this is
provided by the ignition of substances which,
like nitrate of soda, give off large
quantities of oxygen.
The Rainham Chemical Works, Ld, by the

hands of its employees, for whom it is
responsible as their employer, brought into
the Range site at Rainham dinitrophenol in large quantities, the Range site being one
from which opportunities of ignition as above

mentioned are not excluded. The explosive, to
which in this case the rule in Rylands v

Fletcher has to be applied, is not a
bags, which had contained nitrate of soda.
These are only one of the conditions of

explosion. What is material is the explosive
itself.
combination of dinitrophenol with old boxes or

And that is the way in which, with respect - -

McHUGH J: But that does not help you, does it, because what

they are saying is storing these explosives on the
land was the non-natural use of the land?

MR McALARY:

No, with respect, Your Honour, I submit he is

not. What he is saying is that it is the explosive
itself which is the non-natural issue. It arises

Burnie(2)

1/12/92

out of the storage. Your Honour, there is no other
discussion in the case which I think is worth
referring Your Honours to, but it does rely upon
the decision in West's case, West v Bristol

Tramways Company, (1908) 2 KB 14. I am sorry,
Your Honours, I do not seem to have that authority
with me, but I can remember something about it. In
West's case there was a tramway company and the
tramway company had to lay tracks to carry the

rails. The tramway company laid wooden tracks.
These were creasoted. The creasote gave off gas or
something emanated from the creasote and that, if I
recall correctly, proceeded to cause damage to
people who occupied premises neighbouring with the
road.
I now have it in front of me, Your Honours. In

that case, if you look at the headnote,
Your Honour:
by their special Act to use the
(affirming the decision of the Divisional authorized
particular kind of wood paving which they had
used, and that, although they did not know
that the use of creasoted wood might cause damage, and were not guilty of negligence, they were, upon the principle laid down in Fletcher v Rylands, liable to the plaintiff in
respect of the damage sustained by him.
Your Honours, there is a decision in Canada;

it is a case, Chu v District of North Vancouver.
It is quite interesting because it has got an

unusual feature about it. What occurred there,
Your Honours, was that the defendants had purchased
a block of land which was sitting on the top of a

hill; they had the hilltop. And on the top of the
hill they built their home and a swimming pool

beside their home. The fill from that, they pushed
out to the edges of the block where it rested on
the edge of a ravine.

no one suggested that anyone should have been Now they were unaware, and
aware, that what was going to happen was that when
rains came the fill was going to spill down the
side and cause considerable damage to some people
below. That occurred.
If I can then take you to Chu's case,

Your Honours, and the reference I should have given
Your Honours is 139 DLR (3d) 201:
In an action by the plaintiffs against the
defendants for damages based, inter alia, on a
theory of strict liability, held, there should

be judgment for the plaintiffs. The fill
created a hazard, though an undetected and

Burnie(2)

1/12/92

unforeseeable one, of damage to others if the
fill "escaped" from the defendants' land.
Between innocent parties the liability should fall upon the defendants rather than the

plaintiffs. The defendants argued that their
conduct did not attract common law rule of
strict liability because they were making a
"natural" or "ordinary" use of their land
since a great many people in their situation
extended their yards with fill in much the
same way as the defendants did.
However, although the use may have been

ordinary, it was, at the same time, a special
use bringing with it increased danger to

others. The ordinary used made of the fill by
the defendants and others, was precisely
because none perceived the hazard that the
fill posed. Whether the use is to be
characterized as natural or non-natural may
depend upon the purpose of the use, although
it is difficult to perceive the connection
between natural or unnatural use on the one
hand and purpose on the other. The placement
of the fill was non-natural because: 1. The
fill was not found in nature. 2. The
defendants redistributed the fill and created
the hazard for their own benefit.
They were unaware, is the point about the
authority, Your Honour.
We would say, with respect, that in answer to

Your Honour the Chief Justice's question, it is not
necessary to establish that the Burnie Port
Authority fully appreciated the potential risks that

were involved. I would concede that it would be
necessary to show that they are aware of the
occurrence of the physical events which led to the
fruition of the risk. In other words, I needed to
show, as I did show, that they knew that the cold

store was made of isolite, as it was; the walls were isolite panels with aluminium skins; the ceiling was
isolite, I think they also had aluminium skins to
the panels; even the floor had an isolite sandwich;
the refrigeration was lagged in isolite. That was
what was to be erected.
On the week before the fire, as I think I may

have already said, cartons of isolite, 20 or 30
..... instead of being stored in the store room were
brought up into the void. They were then seen left
there, in close proximity to the areas where the
welding was to be carried out, and indeed, in that
rather complicated way with my arms, I had sought
to show that if you have two RSJ's running like
that, initially, according to Mr Cooper, he saw

Burnie(2)

1/12/92

them thrown between the two RSJ's. His Honour
found that they were actually stacked on the other
side.
The only issue of fact is an irrelevant issue,

because from our point of view it did not matter if
they were on that side of the RSJ or on this side

of the RSJ. The welding was going to take place on
the portal, and there is a huge amount of evidence
about how far was the distance from the position
where the welding was going to take place to where
the cartons were stacked, and in what sections of
the stack did the fire take place. That was
answered on a causal issue in our favour.
Well, Your Honour, much of what I have been

saying to Your Honours about Rainham Chemical and
Chu's case I have set out in short notes at page 7
of my submissions.
Could I go back, Your Honour, for the moment

to Hazelwood v Webber because, in our submission,

that authority has never been doubted. It is a

unanimous authority of this Court. I had read to
Your Honours the passages from the judgment of the
majority. Mr Justice Starke at page 281, right at
the conclusion of his judgment, says:
Nor do I agree that such an operation involved

any question whatever for a jury. The facts
in the case were not in dispute, and on those
facts the jury should have been directed, as a
matter of law, that the appellant burnt off
his stubble at his peril, and that his
liability was independent of any negligence on
his part.

In other words, he treated the facts not being in
dispute as if they had been found and then having
been found he then treated the question of natural

or non-natural user as an issue of law be decided
by the Court.
Your Honours, in our submission,

classification as natural or non-natural depends
upon the time, place and circumstance and perhaps
the purpose of the user. For the jury to make the
necessary findings once these are made, the
determination whether the user in that setting is
natural or non-natural is the decision of law.
Your Honour, in Torrette House v Berkman, to which
my learned friend has referred Your Honours, at
page 655, one finds a reaffirmation of a question

of time, place and circumstance. I am sorry, I did
not give Your Honours the reference: Torrette

House, 62 CLR 638. The passage is very short,

Burnie(2)

1/2/92

Your Honours, it is at 655 and Mr Justice Dixon at
the bottom of 654, dealing with accumulation of
water, cites Hazelwood v Webber and then says:
In determining such a question the

advantage to the occupier who succeeds in the
harmless use of an agency such as a large
quantity of water which is a potential source
of mischief, and the frequency of its use by
other occupiers, are not the only
considerations.

That is, he is really repeating precisely what was
written in Hazelwood v Webber.
ttThe degree of hazard to other 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
factorstt,

And that is from Hazelwood v Webber.
Time, place and circumstance, not excluding
purpose, are of course most material
considerations.

Then he turns to deal with Western Engraving Co v
Film Laboratories Ltd - I will just deal with this
because a member of the Bench, I think it was
Your Honour Mr Justice Brennan, this morning took
the point that the issue in Rylands v Fletcher was
the large quantity - or it might have been
Your Honour Mr Justice Dawson - but in this Western
Engraving case it is the large quantity of water
which attracts the operation of Rylands v Fletcher.
He says:
This, I think, is all that is meant by the
decision in Western Engraving Co v Film
Laboratories Ltd that manufacturers who for

the purpose of washing cinematograph films
used large quantities of circulating water in
a closed apparatus, a boiler, and a constant
flow of water were liable for the consequences
of its escape under the rule of strict
liability.
The case, Torette House, of course, was a case

where there was no such type of setting.

Your Honours, could I seek to widen the ambit
of interest by taking Your Honours to Prosser and
Keeton, The Law of Torts? It is the fifth edition.

MASON CJ: Just before you do so, I am not sure at the

moment that in the argument you are presenting you

Burnie(2)

1/2/92

are drawing any distinction between suus ignis and
liability under Rylands v Fletcher or liability for

escape of fire. Because it did occur to me from
the way in which you presented the argument so far
that you might be in a stronger position under suus
ignis in respect of the negligence of an
independent contractor than you would be under
Rylands v Fletcher.

MR McALARY:

I agree with that, Your Honour.

I have here a

finding of negligence by Wildridge and Sinclair.
If I am right that suus ignis is available in this
Court, and I am going to put something about that
at the end of my submissions, then I have a
negligent escape of fire and that fire would be his
fire suus ignis, because it is only the fire of the
stranger that is excluded from that rule. So under
the common law rule I would have a very simple
case, and that is the case I ultimately put - I put
a lot to the trial judge, but that is the case I
succeeded on in front of the trial judge.

MASON CJ: But what I wanted to ask you was this: what is

the relationship between the suus ignis rule and
Rylands v Fletcher or escape of fire? If you look
at two judgments of Justice Dixon, you seem to get
the impression from reading two sentences that I
will refer to you in a minute that His Honour was
really basing himself on a wider principle of
liability that may perhaps be not restricted to any

one of those three possible principles. Now, the
first is in Mcinnes v Wardle, 45 CLR 548, the
sentence that begins at page 552 where His Honour
says:
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.

The other statement is the statement in Torette
House at page 655 where he says of that case
half-way down the page:
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.

MR McALARY:

I cannot say, to be honest with Your Honour,

that I identified both those statements as giving

rise to yet another head of liability. The only
heads of liability that I identified in my
examination of this material were the three that I
have previously put. That was suus ignis in the

Burnie(2)

1/12/92

original form, that is, the non-modified form,
where it was said to be independent of negligence;
suus ignis following Turberville v Stampe where it
becomes clearly dependent on negligence, and then
Rylands v Fletcher.
Can I just say, Your Honours, that I tried to

write this in a precise manner at page 3 of the
submissions where I set out four relationships
which I submit gave rise to liability.
The first relationship was ignis suus, and I

would read it as "responsibility for escape", put a comma, the words: "through negligence". Originally I did not have "through negligence" in there, but
when I read Zeeman's judgment I thought perhaps I
should concede the degree of historical research
that His Honour had done was better than mine.

BRENNAN J: Is that the right enunciation of the principle?

Is it the escape that must be through negligence or
the creation of the fire that must be through
negligence? And in either event - - -

MR McALARY:

I think it includes either, Your Honour, as you

read the cases. The fire can be lit

non-negligently but left negligently. So it really
is lighting the fire negligently or allowing the
escape negligently.

BRENNAN J: Well, the negligent escape is the Goldman case,

is it? The lightning case covers the negligent
escape?

MR McALARY:

Yes, certainly, Your Honour, because I would have thought, with respect, you could not get

Goldman v Hargrave within the Rylands v Fletcher or

suus ignis principles because in that case it was

the act of God that produced the fire in the tree
and it was the subsequent negligent control of the

fire that produced liability, so it was the

negligent escape of the fire there.

BRENNAN J: Looking at that first enunciation, "not fires

caused by strangers", is that one branch of a
complete dichotomy, the other branch being fires
caused by negligence?

MR McALARY: Originally the dichotomy was a true dichotomy:

fires caused by strangers, all other fires. You
know, that is (a) or (non-a), so fires caused by
strangers is (a) and the balance of the field is
all other fires. That is a true dichotomy and I
think, with respect, that appears to have been the

position originally. Then one finds, if you are
dealing with this as a logical classification, that
the field was redefined after Turberville v Stampe,

Burnie(2)

1/12/92

so that it was only negligent fires but within the
concept of fires negligently caused you had again
the true dichotomy, strangers' fires and all other
fires - strangers' fires and non-strangers' fires,
to use Your Honour's analysis. That is the way in
which the law appears to have developed.
Can I leave Your Honour the Chief Justice and

come back to the passages that Your Honour has
referred me to?

MASON CJ: Yes.

MR McALARY:

But since we are just talking about this, let

me say to you that in Australia this question of
ignis suus is looked at on at least two occasions.
The first of the occasions it is looked at is in
Bugge v Brown, 26 CLR 110 and, Your Honours, what I
am about to say is summarized on page 10 of my
submissions.
In Bugge v Brown, Your Honour, there was a

fire lit by a person who was a servant of the

defendant. The fire was lit for the purpose of
cooking raw meat for the midday meal, in the open.
By negligence of the servant the fire escaped and
spread to the land of the plaintiff and did damage
to the land of the plaintiff.
Now, could I take Your Honours to the judgment

of Mr Justice Isaacs at pages 114 and 115, just at
the bottom of page 114:
Learned counsel for the appellant ultimately put forward three propositions of
law for holding Brown liable. First, he
contended 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. This contention was

rested on a case decided in 1401 - Beaulieu
v Finglam.

That is contention No 1, independence of
negligence.
Next, he contended that even if that ancient
rule were now mitigated by reason of English
Statutes, the liability still remains whenever
a servant lights or keeps a fire negligently.

That has brought "negligence" into the field.

For this he replied on Filliter v Phippard.
Lastly, he relied on the admitted doctrine
that at all events an employer is liable where

Burnie(2)

1/12/92

his servant lights or keeps a fire negligently
but within the course of his employment.
Then His Honour says:
The first proposition the Court ruled against during the argument.

So they ruled against the absolute liability
irrespective of negligence.
Whatever may have been anciently considered
the true rule of the common law, the rigorous
proposition so contended for cannot now be
maintained.
It will be convenient to deal with the

third proposition, which is a well traversed
region, before considering the second.

So he then looks to the question of whether or not
this was a fire lit by a servant in the course of
his employment for which the master would be
precariously responsible, and held it was. If one
goes to his judgment right at the end of 129, in
the last paragraph he says:
In my opinion the defendant is

responsible on the basis of the third
proposition advanced by learned counsel for
the appellant. It is therefore unnecessary
for me to consider his second proposition.
But I would add reference to -

and he refers to Musgrave v Pandelis. So, at that
stage that position appears to have remained open.
The next major case in this area which came

before this Court is Mcinnes v Wardle, 45 CLR 548.
My summary in my notes was: in Mcinnes v Wardle an

owner of land was held liable for damages for a
fire negligently lit by his independent contractor.
The fire was treated as the owner's fire. If I go
to the headnote:
The appellant employed an independent
contractor to fumigate rabbits on his land;
in the course of doing so, the independent
contractor, during a prohibited season of the
year, lit a fire, which was a usual and
ordinary method used in the fumigation and
destruction of rabbits. The fire spreads to
and on the neighbour's land and there caused
damage.

Burnie(2)

1/12/92

Held, the employer of the independent
contractor was liable for the damage thus

caused.

Black's case is said to have been followed.

If I might take Your Honours initially to the
judgment of Mr Justice Evatt at page 552:

EVATT J. The decision of the Privy Council in
Black v Christchurch Finance Co establishes
that a person who authorizes the use of fire
in order to clear or burn off on land occupied
by him is under a duty to neighbouring
landholders to see that reasonable care is
exercised to prevent the fire from spreading.
The duty is unaffected by the fact that the
person authorized to use fire is an
independent contractor and that the contract
gives the occupier no right to supervise the

work. The occupier himself must see to it
that due care is taken -

so that is a responsibility for the negligence of
the independent contractor.
The decision in Black's case applies here

because the learned Supreme Court Judge's

findings of fact. The appellant knew that
McLeay, the "independent contractor," would
employ fire in order to burn off the bracken
for the purpose of putting fumes into the
burrows. Upon the facts the appellant must be
taken as having expressly authorized McLeay to
burn for the purpose of destroying the
rabbits.

Now, it could be, Your Honours, that that case
could be decided on the basis that they had
authorized the doing of the very act, because he
knew he was going to fumigate and apparently a

normal consequence of fumigation is that you burn
off, but it was not the only consequence of, as
appears - there are other ways in which the
fumigation could be done.

MASON CJ: But you need to notice the second sentence on the

next page, do you not - - -

MR McALARY:	Yes, Your Honour.
MASON CJ:	- - - where His Honour dealt with the possibility

of a distinction, and said:
in each case the occupier knew that danger
would threaten his neighbours' property unless

Burnie(2)

1/12/92

reasonable precautions were taken to prevent
the spread of fire.

MR McALARY:

Yes, I had not noticed that.

Then

Mr Justice Dixon, page 551, five lines from the
top:
The fire was lit, not by the appellant or any
of his servants, but by an independent
contractor who for a lump sum had undertaken
"to fumigate the rabbits on the property" and
to do some other work, all to the satisfaction
of the appellant. There was no evidence of
any express direction or authority to burn -

then, coming down to the bottom of the page: Although there was some conflict of evidence,
ample support can be found for these
conclusions, which ought, I think, to be
accepted. 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.
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.

And he then refers to Rainham Chemical Works Ltd.
Such a finding involves the appellant in
responsibility for the introduction of fire

upon the premises he occupied. In my opinion
his liability was established.

The majority, Chief Justice Gavan Duffy and
Mr Justice Starke, at page 550, about eight or ten lines from the top of the page:
The question is whether Mcinnis is liable for the damage so caused to Wardle.
Mr Justice Napier held that he was; and we

agree with him. The decision of the Judicial
Committee in Black v Christchurch Finance Co
settles, in our opinion, the principle that an
occupier of land is liable for damage by fire
lighted in dangerous circumstances by an
authorized person -

Burnie(2)

1/12/92

which seems to be a restatement of the ignis suus
principle, because if you read "dangerous" as the
same as "negligent" -
he is liable for damage caused by a fire
lighted in dangerous circumstances by an
authorized person, whether servant or
contractor, notwithstanding that the
conditions of authority have not all been
complied with or have been abused.

And then he makes the comment he authorizes another
to do it for himself:
he is bound not only to stipulate that such
precautions shall be taken but also to see
that they are observed.

Probably another expression of the doctrine qui
facit per alium facit per se.
But, Your Honour, that is the next significant

case in this Court. The other significant case if
I might just deal with while I am in this area is
the decision of this Court in Benning v Wong. As
far as my researches go, and in regard to the
volume of material that comes out, I am never too
sure when you say that, this is the last case in
which this Court has dealt with this question of
fire and Rylands v Fletcher.
If I remember correctly, Your Honour, I think this was just a demurrer. Yes, it was a demurrer,
and the count alleged - this is in the headnote:
By the second count of her declaration she claimed damages "for that ... the company was
enabled by statute to supply and distribute a
dangerous thing, namely gas a substance liable
to cause mischief if it escaped as the

defendant well knew and to lay pipes under and
along public streets to contain -

the same. And I need not read the rest of it.
The majority of the Court decided the issue on

the basis of statutory authorization pursuant to
the Australian Gas Light Company Act, and therefore
the mere fact of an escape of gas from pipes which
had been laid pursuant to statutory powers was not
an actionable wrong, negligence needed to be shown,
so I get nothing from the majority judgments.
Could I take Your Honours to the judgment of the former Chief Justice Sir Garfield Barwick at

page 254. He sets out the escape of gas from land
occupied by pipes of the Australian Gas Light

Burnie(2)

1/12/92

Company in a public street under statutory power
and then he turns at page 255 to deal with the
relevant questions of principles of law, and I rely
strongly on this:
In my opinion, the relevant principles of

law for the disposal of the points
substantially in issue between these parties
are not really in doubt, although some decided
cases purporting to apply those principles do
give rise to some difficulties. It should now
be regarded as settled that a person who
brings on to land a thing or substance likely
to prove dangerous to land or persons if it is
not confined to that land is absolutely liable
to the owners or occupiers of land to which
that dangerous thing or substance escapes for
damage done by that thing or substance to that
other person's land or to that person, or a
person for injuries to whom that person is

of the result of the judgment in Rylands v

responsible, on that land. In this statement have included personal injury in the damage for which the defendant is liable.

He would give his reasons later. So he puts the
matter on the basis that the position is clear and
settled.
In the judgment of Mr Justice Windeyer, could

I take Your Honours to the bottom of 301. I think
my learned friend has already read that part to
you, so I will not re-read it, but on 302 my friend
read as far as the reference to Collingwood v Home
and Colonial Stores. He said that case was one of
many cases which adopt Lord Moulton's words in

Rickards v Lothian. I read those again:
"It is not every use to which land is put

that brings into play that principle. It must
danger to others, and must not merely be the ordinary use of the land or such a use as is
proper for the general benefit of the
community. "
be some special use bringing with it increased

In every case, Your Honour, there is a repetition

of that section of the advice of Lord Moulton. May
I, since I am at that page, ask Your Honours to
look at the next page, 303, towards the bottom.
His Honour deals with the social relevance and
implications of the Rylands v Fletcher doctrine, a
matter I will not wish to go to:
The numerous decisions, in many courts,

as to the application of Rylands v Fletcher

Burnie(2)

1/12/92

reflect differing views of the purpose and the
province of the law of torts today. But they do not, I think, sustain the facile statement of some commentators who have spoken of the
rule as a by-product of the industrial
revolution, as, like workmen's compensation
law, strict liability deliberately called into
existence in 1866 for the purpose of ensuring
that industrial enterprises should make good
harm which they do. That may be the socially
beneficial result today of what the Exchequer
Chamber and the House of Lords said a hundred

years ago. But liability independent of
negligence was, as I have said, not a new
notion in English law. Indeed strict
liability was known to the law long before
negligence emerged in the nineteenth century
as itself a cause of action. It may be that,
in some circumstances, "an absolute liability
is in a sense abhorrent", as Lord Green MR
said in Makin v London and North Eastern
Railway Co. And any suggestion that a statute creating a liability has made it absolute must
be critically examined: but, as his Lordship
pointed out, whether that is so or not depends
upon the language of the statute read against
the background of the common law. There is
certainly no presumption in the common law
against strict liability. Actions for
negligence dominate the work of common law
courts today, mainly because railway trains,
motor-cars and industrial machinery have so
large a place in men's lives. But to regard
negligence as the normal requirement of
responsibility in tort, and to look upon
strict liability as anomalous and unjust,
seems to me to mistake present values as well
as past history. In an age when insurance
against all forms of liability is commonplace,
it is surely not surprising or unjust if law

makes persons who carry on some kinds of
hazardous undertakings liable for the harm
they do, unless they can excuse or justify it
on some recognized ground. That is, I think,
the position today in the countries of the
common law. In England, and in those
countries which have the common law as it is
in England, this comes about through the
principle of Rylands v Fletcher. In the
United States that decision and its doctrine
were, and still are, rejected in some
jurisdictions: but now, as Professor Prosser
has said, and made plain, in his work, Law of
Torts:
"Even the jurisdictions which reject

Rylands v Fletcher by name have accepted and

Burnie(2)

1/12/92

applied the principle of the case under the

cloak of various other theories. Most
frequently, in all of the American courts, the
same strict liability is imposed upon
defendants under the name of nuisance."
It is perhaps not without interest, for

those who like to see judicially made law as
responsive to current social needs, to notice

that in France too the courts of judicial
interpretation of art. 1384 of the Civil Code,
culminating in the Affaire Jand'heur in 1930,
has brought about a principle of strict
liability not dissimilar to the English and
American rule; and that the defences, force
majeure, cas fortuit and cause etrangere, resemble the exceptions or defences which
English law recognizes; and that water and
gas pipes and electricity wires have been held
by French courts to attract liability under
art. 1384.
In saying these things I am not to be

taken as unadvisedly espousing the idea hinted
at in the Supreme Court that we are at liberty
to decide cases according to our own
conceptions of "social realities". That would
be to allow individual predilection to
masquerade as principle. But in deciding upon
the application of common law principles in
new situations, courts are not required to be
unaware of consequences or unmoved by them.
Your Honour, that, as I understand it from my
research, is the last word in this Court on the
doctrine of Rylands v Fletcher, and we would say,
with respect, is now established law, and the ambit
of the non-natural user defence is well known and
well established.

Could I take Your Honours to Fleming and to

Prosser to see how widely and how it has been

looked at by the textbook writers. In Prosser, and
I am going to the fifth edition, at pages 545 and
547 I have noted, this section of the work,
section 78, is dealing with "Abnormally Dangerous
Things and Activities". It starts off with a
discussion of Rylands v Fletcher, and then it
refers on 545 to Lord Cairns' comment -
that the principle applied only to a
"non-natural" use of the defendant's land.

Then if I go over the page to 546:
More than a hundred subsequent decisions

in British jurisdictions have fully borne out

Burnie(2)

1/12/92

this interpretation of the case. The strict
liability has been said many times to be
confined to things or activities which are
"extraordinary", or "exceptional", or
"abnormal", and not to apply to the "usual and
normal".
Then he takes the quotation from Lord Moulton's
advice:
There must be "some special use bringing with
it increased danger to others, and must not
merely be the ordinary use of land or such a
use as is proper for the general benefit of
the community" .
In determining what is a "non-natural

use" the English courts have looked not only
to the character of the thing or activity in
question, but also to the place and manner in
which it is maintained and its relation to its
surroundings. Water collected in large
quantity in hydraulic power mains a cellar, or
a plant for washing film, all in dangerous
proximity to the plaintiff's land, is a
"non-natural use" for which there is strict
liability. But water in a cistern, in
household pipes, or in a barnyard tank
supplying cattle, is a natural use for which
the defendant will not be liable in the

absence of negligence. Gas or electricity in
household pipes or wires is a natural use;
gas in quantity or high-powered electricity
under the street is another matter entirely.
Fire in a fireplace or in an authorized
railway engine is a normal thing, and so is a
steam boiler on a ship; but fire in an
unlicensed locomotive or in a steam engine
travelling on the highway and shooting out
sparks is not normal, and is a proper matter

for strict liability.

I jump over the automobile, coming down to the next
sentence:
The storage in quantity of explosives or
inflammable liquids, or blasting, or the
accumulation of sewage, or the emission of
creosote fumes -

that is West's case -
or pile driving which sets up excessive
vibration, all have the same element of the
unusual, excessive and bizarre, and have been
considered "non-natural" uses, leading to

Burnie(2)

1/12/92

strict liability when they result in harm to
another.
The place where all this occurs, the

customs of the community, and the natural
fitness or adaptation of the premises for the
purpose, all are highly important in determining whether the rule applies.
And there is a discussion about elephants in

Burma and transporting them to England. Moving
down to the bottom of page 547:
In short, what emerges from the English

decisions as the "rule" of Rylands v Fletcher
is that the defendant will be liable when he
damages another by a thing or activity unduly
dangerous and inappropriate to the place where
it is maintained, in the light of the
character of that place and its surroundings.

That is the way that Prosser sees it. To much

the same effect, in our submission, is Fleming.
There is a new edition of Fleming, Your Honours,
the eighth edition, it is apparently not here at
the moment.

MASON CJ: Yes, we have only got the seventh.

MR McALARY:

I will use your seventh, Your Honour, and I do

not think there is a great deal of difference.
Though there is one important matter in the eighth.
There is a discussion, which I do not find repeated
in the seventh, in relation to the rationale for

strict liability. I will come to that just
shortly. But if one goes to the seventh edition,
it is at page 310 and 311 "Natural User of Land".
I will not read the first paragraph, except to say there was an initial ambiguity arising out of

Lord Cairns' suggestion. Then the learned author
says:

This ambiguity inspired a good deal of
confusion until in Rickards v Lothian, the
Privy Council authoritatively adopted the
second meaning and thereby withdrew a wide
range of activities from the ambit of strict
liability.
Much of the earlier criticism of the

distinction has been discounted by dispelling
the impression that non-natural user was
synonymous with "artificial" or that natural
meant "primitive". For it is now settled that
"there must be some special use bringing with
it increased danger to others, ... not merely
the ordinary use of land or such a use as is

Burnie(2)

1/12/92

proper for the general benefit of the
community. In applying this qualification,
the courts have looked not only to the thing
or activity in isolation, but also to the
place and manner in which it is maintained and
its relation to its surroundings. Time, place
and circumstance, not excluding purpose, are
material.
That, of course, is the comment of Mr Justice Dixon
in Torrette House.
The distinction between natural and non-
natural user is both relative and capable of
adjustment to the changing patterns of social
existence. Thus, whatever the merit of the
seminal decision that the storage of water in
a reservoir for industrial purposes created an
exceptional danger in the particular locality,
the accumulation of water for irrigation is a
proper method of using land in an ordinary
manner, at least in a proclaimed irrigation
district.

I do not know if I would help Your Honours by
reading the balance of it. It is the same thrust
everywhere.
Your Honours, the one passage that I did wish

to read to Your Honours though, is a passage from
the eighth edition of Fleming.

MASON CJ: Could you get this photocopied for us and hand in

seven copies?

MR McALARY:

I am sorry, Your Honour, thabut I did not do

it, I will see that - - -

MASON CJ:

No, but if you do it later that will be

sufficient.

MR McALARY:

I regret - my fault!

Your Honour, in the

eighth edition there is a chapter 15 headed Strict

Liability. And at page 328 Rationale for Strict
Liability.
Many activities, now more than ever, exact a high toll of life, limb and property.
Faced with this situation, society may adopt
any one of three possible courses. It may proscribe the activity altogether, as by a
statute declaring it illegal or a court
enjoining it as a nuisance. Alternatively, it
may choose to incur the danger of the
enterprise for the sake of its social utility,
but forbid it to be carried on except under
specified conditions or in a prescribed

Burnie(2)

1/12/92

manner; hence the proliferation of safety
statutes enforced by licensing, inspection,
criminal penalties and the doctrine of

negligence per se. Or it may decide to

tolerate the activity on condition that it pay
its way regardless of whether it is carried
out carelessly or not. This last is the

solution of strict liability. The defendant
is held liable not for any particular fault
occurring in the course of the operation, but
for the inevitable consequences of a dangerous
activity which could be stigmatised as
negligent on account of its foreseeably
harmful potentialities, were it not for the
fact that its generally beneficial character
requires us to tolerate it in the public
interest.
In one sense, strict liability is but another aspect of negligence, both being based
on responsibility for the creation of an
abnormal risk. Negligence, however, has been
concerned primarily with an improper manner of
doing things which are safe (and therefore
reasonable) enough when properly carried out,
and not with activities which remain dangerous
despite despite all reasonable precaution.
The explanation for this lies in the dilemma
that if such an activity were branded as
negligent on account of its irreducible risk,
it would be tantamount to condemning it as

lawful. Some activities, no doubt, deserve
that fate either because the object they serve
is not sufficiently beneficial or because it
can be attained in a safer manner. Other
activities, however, may have to be tolerated
despite their irreducible risk, like drilling
for oil and gas, testing rockets, flying high
speed aircraft and driving motor vehicles.
These should not be penalised as reprehensible

by labelling them negligent although the risk
they entail may not be avoidable (at least
statistically) despite all possible
precaution. If all the same they should pay
their way, it must be on some principle other
than negligence. That principle is strict
liability.
The hallmark of strict liability is

therefore that it is imposed on lawful, not
reprehensible activities. The activities that
qualify are those entailing extraordinary risk
to others, either in the seriousness or
frequency of the harm threatened. Permission
to conduct such an activity is in effect made
conditional on its absorbing the cost of the

Burnie(2)

1/12/92

accidents it causes, as an integral part of
its overhead.
Now, there is another passage but just can I take
you over, Your Honour, to this:
American law has been somewhat bolder. After a first cool reception, strict liability
is now generally applied to "abnormally
dangerous" activities, that is, those with
inherent risks that cannot be eliminated by

the exercise of reasonable care. An even
clearer perspective guided the Pearson
Commission in its recommendation to impose
strict liability on controllers of things or
operations in each of two categories - first,
those which by their unusually dangerous
nature require closest supervision, like
flammable chemicals; and secondly, those which
pose a risk of serious and extensive
casualties, like public bridges, stadiums and
large buildings.

I looked at the Pearson Commission,_ Your Honours,
and the recommendation in that commission - the
Royal Commission into Civil Liability 1978
conducted by Lord Pearson in chapter 31,
paragraphs 1643 and 1644, is the source. It is in
paragraph 1643:
We recognise that there is no sharp line
between things or activities which are
inherently dangerous and those which are not.
The most innocent object can be a source of

danger if wrongly used. We recommend that
strict liability should be imposed on the
controllers of things or operations in each of
two categories - first, those which by their
unusually hazardous nature require close,
careful and skilled supervision, the failure

of which may cause death or personal injury -

and I need not worry about the second. The
provision then says:
In the first category would fall such things
as explosives and flammable gases or liquids.

Then, in 1644:
It is true that the courts, as cases have come
before them, have to some extent shown
themselves capable of providing a remedy for
victims in the first category of accidents,
even within the framework of negligence
liability, by adjusting the standard of care
required to the degree of dangerousness of the

Burnie(2)

1/12/92

thing or operation in question. But this is
an uncertain process and one involving a
somewhat artificial conception of
'negligence'.
I would have said, with respect, a highly
artificial conception of negligence. There are
cases where it is clear that there is no negligence
or, alternatively, there are cases where one cannot
even discover the cause, let alone trace
negligence.
We think it better that the controller of a thing or operation which, unless properly
controlled, has a high risk of causing death
or personal injury should be responsible in
the law for those consequences, so that both
he and the potential victim know in advance
where they stand.
Your Honours, that would cover what I wanted

to say about Rylands v Fletcher in itself. I have
not read to Your Honours the discussion, the second
discussion, in Prosser, in which Prosser says that
in essence the American courts have adopted, under
different guises and different names, the same
solution as the English courts have adopted under
Rylands v Fletcher. In some of those 46
jurisdictions, Rylands v Fletcher does not run; in
others it does; but in those where it does not it
runs as nuisance. So you have the same absolute -
as Prosser says in that passage that I quoted from
one of the judgments, you have the same result, but
under different names. If Your Honours are
interested in that, I have referred to that feature
of the matter in the submissions, in the fifth
edition of Prosser at pages 551 to 553.
In summing up what we would say, with respect,

Your Honour, is that Rylands v Fletcher is a

well-established rule; it has not been criticized
in this Court; the criticism of it, in so far as it
extends to natural user, really fails to bring to
account the constancy of approach since the
decision in Rickards v Lothian, as amplified by
what was said in Hazelwood v Webber. The various
decisions at first instance, and in other courts,
reflect Rickards v Lothian and Hazelwood v Webber -
Your Honour will remember the case cited, the
Handcraft v Commissioner for Railways case where
Mr Justice Jacobs was dealing with the matter.
So the approach in the courts is clear; the

justification for the doctrine, in our submission,
is clear. It is a simple - I will not say it is
simple, I will say that it is an appropriate

Burnie(2)

1/12/92

doctrine for the Australian country. We have a
country - - -

BRENNAN J: That may be so if you look at the question of a

particular use to which land is put, and put as a
matter of deliberation, either to set a fire to clear out rabbits or to set a fire to clear the

land or whatever it might be. But the problem here
is a different sort, is it not? And that is that
here is a task of welding; it is not the welding

that escapes, it is the fire. And the problem is,
are they liable for the fact that the welding

caused the fire. Now, how does Rylands v Fletcher
even touch that situation?

MR McALARY:

It touches it, Your Honour, because it is not the welding that is the problem; it is the storage

of the isolite that is the problem.

You bring

isolite to there, they have an isolite

construction.

Now, if you are going to have that,

bearing in mind the potentiality, if fire ignites

that, you have a risk which will be calamitous if
you it comes to fruition.

BRENNAN J: Well then, let us put it to the test to the

bringing on of the isolite. Is it a non-natural
user of land to bring isolite on to the land when
you are constructing a refrigeration plant?

MR McALARY:

Nothing taken by itself is a non-natural user.

BRENNAN J: But is that the very situation that Rylands

v Fletcher cases with the generation of a fire?
have all addressed? In other
words, taken by itself, it is a non-natural user.

MR McALARY:

They have always come under the ignum suum

principle, Your Honour.

BRENNAN J: Well, that is why I think it is perhaps

necessary for you to consider what the relationship
between those two principles are and perhaps the
authorities which are in Mr Barnard's notes of
argument in paragraph 3.

MR McALARY:

Your Honour, I thought, to some extent, I had

touched upon that when I was discussing Bugge v
Brown and Mcinnes v Wardle. We would submit, with
respect, that this Court has never said that ignum
suum is repealed; is no longer the law of this

land. The principle was well established in
England; it would have come here with 9 George IV
chapter 83. It was appropriate to Australian conditions and it would be part of the law of

Australia. Now there is no judicial determination
that this principle is no longer applicable in

Burnie(2)

1/12/92

Australia and, indeed, the nearest the courts have
ever gone to it is Bugge v Brown, where the
original form of the rule was said to be not in
force here, but where the -

BRENNAN J: Well, you do not need to deal with Wise Bros or

Hargrave v Goldman then?

MR McALARY:

I would have thought, with respect, not,

Your Honour, but perhaps I could look at those. cases it would - the case depends upon the way in
which the case, but more particularly, Your Honour,
in the 30s, 40s and 50s, they depended upon the
case that was made and the case that was pleaded;
it is only in more recent years that one has tended
to look at the whole ambit of things, but the
success or otherwise depends upon the character of
the declaration in cases like Wise Bros, and what

type of case was in fact being made. In the
Court of Appeal in Tasmania, a comment by
Mr Justice Windeyer in Goldman v Hargrave, is the
source of the suggestion, that the ignis suus rule
has become lost and subsumed into Rylands
v Fletcher, but that does not seem to be supported
by an analysis of Bugge v Brown where it does not
even appear to have been considered, and you
certainly cannot draw that conclusion from
Hazelwood v Webber.
Of course, the rule has been applied in

England in the two authorities, that is Emmanual
and Balfour v Barty, so it has been applied there,
and it has been applied here, we submit, with
respect, to say that it is lost or subsumed or
vanished or it is fallen into desuetude or
something of that character is without
justification. It is an assertion made by my
learned friend but it is an assertion for which he
has no authority and no support. There is no

reason why that rule is not appropriate to this
environment, and it is a rule, Your Honour, which
one could see was appropriate to medieval England.
It was originally a rule of the town, not a rule of
the country. In Turberville v Stampe one of the
arguments was that you were not responsible for the
fire in your clothes, the field, but you were
responsible for the one in the house. But the
appropriateness of the rule in medieval England
arose out of the structure of the towns where they
were building on one another, in and out, in a
jigsaw puzzle. The Great Fire of London shows what the condition of the English cities were, like Rome at the time of Nero.
So it was appropriate there, but here it is

appropriate in the fields because most of Australia

Burnie(2)

1/12/92

is dry, arid, and much of it drought stricken. We
have a season in which in New South Wales, and I
think sometimes in Victoria and Tasmania, you have
a very significant degree of undergrowth growing up

as a result of the rainy season. Then you have a
period of dryness and you have a huge volume of

combustible matter. Now, a rule which deals with
fire in those circumstances is clearly appropriate
to Australia and ought to be so seen. So, in other
words, Your Honour, in terms of ignum suum I would
have submitted that it is a rule that ought to be
maintained, and I also submit - - -

McHUGH J:

Mr McAlary, rightly or wrongly, I cannot help but

feel that your real cause of action in this case
was in nuisance, but that does not seem to be
pleaded and Mcinnes v Wardle, which I would have
regarded as a case of nuisance, you classify under
Rylands v Fletcher.

MR McALARY:

Your Honour, I find it very difficult to know,

if I might say, Your Honour - if I could invoke
Maitland, the forms of action with things of evil
in their life, and even in their death have not
ceased to trouble us, and I think Your Honour is
troubling me with a form of action that I really
have never been able to understand. I have never
been able to understand where nuisance starts and
where it finishes.

McHUGH J: Nuisance is interference with an occupier's use

with his land in this case. There is an
interference of your use of your land and the onus
is on the defendant, is it not, to exculpate
its - - -

MR McALARY: That is the American position, with respect.

McHUGH J: Is it not the Australian position?

MR McALARY: Classically, nuisance required a continuity of

actions. It was the flow of filth from the privy
or the escape of vibrations or smell and,
traditionally, a single escape was not classified
as a nuisance and, indeed, as I have always
understood the - - -

McHUGH J: But in the Wagon Mound, for example, although it

went off on other points, no one said that the
welding in that case did not amount to a nuisance,
and that was the basis upon which the defendant was
originally held liable, if I recollect.

MR McALARY:

I am not doubting

- I might say I think

Your Honour is right. I did not mean that in any

condescending way. I meant that Your Honour is
correct. That was, I think, the original basis,

Burnie(2)

1/12/92

but it was moved - the ultimate basis was the issue
of negligence. It was the fact that a reasonable
man would have foreseen this risk.

McHUGH J:

When having regard to what Sir Owen Dixon said in

Torette, it is difficult to believe that he decided
Mcinnes on some doctrine of extra hazardous acts. But he certainly does not seem to have decided it
on any question of Rylands v Fletcher, so the only
other cause of action seems to me to be nuisance.
That is what I would have thought was the basis of

Mcinnes, as in Black v Christchurch. They are
really cases of nuisance, are they not?

MR McALARY:

With respect, no, Your Honour.

I would have

submitted Black v Christchurch was a simple example
of ignis suus because what you had there was a fire
lit by a person who was an independent contractor,
but the lighting of the fire was contemplated by

the person held liable, the owner. So he lit the
fire and it was the owner's fire and the court said
that the fact that it is - the discussion in the
case is whether or not the fact that he was
lighting it in contravention of precautions which
were prescribed was sufficient to take it outside

the ambit of being the owner's fire. And it is
seen that way, and discussed that way in
Balfour v Barty-King. Though, Your Honour, I must
say that - - -

McHUGH J:	In your submissions you did mention the question of nuisance in the classification in paragraph (c)
on page 3 but then you dismiss it.
MR McALARY:	Well I treated it, Your Honour, as a question

of classification rather than - it is a question of whether the facts give rise to the cause of action. We would have classified the cause of action as
within the ignis suus principle or alternatively
within Rylands v Fletcher, that very thing. Now,

if you read Prosser you can see that the American
courts had tended to treat it as nuisance, so it is
the one group or set of facts which give rise to a
relief, but the characterization under which the
relief is obtained differs.
I do not know that I can really assist

Your Honour in that field any further. There is
not much point in me just making comments without
thought at the back of - Your Honours, that would
take me, I think, to the conclusion of that matter.

Can I just look at these notes for a second. I do
not know that I really need to carry the exchange
on exclusion any further.
Can I go back, Your Honours, to the other matter, and that was that to the trial judge we

Burnie(2)

1/12/92

submitted that there was a liability in negligence

and the trial judge rejected that submission. He
found that we had failed to establish that there

was the relevant proximity relationship. At
volume 12 at page 2352 His Honour says at line 20:
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.
Therefore, in my view, BPA was not liable to
GJ for any damage caused by negligent
performance of that contract by WS.

That is the rejection of it. Your Honour, in our
submission, the relationship between the Authority
and General Jones gave rise to a duty of care, the
essential features being a proximity relationship
between the Port Authority and General Jones
combined with the foreseeability of damage if a
particular event, namely, escape of fire, occurred.
That, Your Honour, is well known and well
established, and I will not take Your Honour to any
of the judgments which Your Honours have given in
recent years concerning Sutherland Shire, Jaensch v
Coffey, and that line of territory.
At the bottom of page 3 of my submissions, I note the factors which we say gave rise to the

proximity relationship. We say that proximity
arose (a) from the relationship between the Burnie
Port Authority as controller and owner of the cold
store and General Jones as the licencee storing its

produce therein; (b) from the mutual agreement
that the extension could be made to the cold stores
while General Jones kept its refrigerated produce
therein. Your Honour, support for that is to be
found in my learned friend's exhibit, BPS, which
was the licence agreement; and clause 19(h) of the

licence agreement is a contemplation that there
will be no problem with the extension being allowed
and General Jones continuing to maintain their
refrigerated product within the store.

BRENNAN J:	What page is that?
MR McALARY:	It is page 13 of the exhibit which is BPS,

Your Honour.

BRENNAN J:

We have 12 appeal books here.

MR McALARY:

I am told that they are not in the appeal books, Your Honour.

They are not my appeal books.

Can I read the section, and then I will do

Burnie(2)

1/12/92

something about it after 4 o'clock. This provision
is as follows:
It is hereby agreed that the Board may extend
the cold store building and use in connection
therewith, and use in connection therewith the
refrigeration equipment presently used for the
purpose of the said premises provided that such increased use shall not prejudice the
capacity of the refrigeration equipment to efficiently refrigerate the said premises.

That is in the licence agreement so it is agreed
that they could expand and use for that purpose the
refrigeration equipment.
The next matter we point to is the Burnie Port Authority's control and its capacity to control and construction of the extension.

McHUGH J: Well, can I just - I am sorry to interrupt you,

but in your submissions there are a number of
references to exhibits, but none of the exhibits
are reproduced in the appeal book.

MR McALARY:

Yes, well, can I seek to handle that by trying to get them photostated, those that I have referred

to.	I was unaware that that was so until about

Saturday, I think, Your Honour, when I started to

try to see whether the material that I wanted to

rely upon did appear in the appeal books and did
not discover that that was not so until then.

DEANE J: Well, it would never have occurred to anyone that

something was left out.

MR McALARY: Well, I could not believe it. The enormous

amount of material made one think that everything
must be there.

MASON CJ:

Can we take it that volumes 1 to 11 contain

nothing relevant; that everything relevant to this
argument of yours is not in the appeal books?

MR MCALARY:

No, you cannot quite, Your Honour, because

volumes 1, 2 and 3 contain some transcript about
what Mr Cooper did and what he knew and how the
cartons were taken up and where Whyman was standing
and matters of that - - -

MASON CJ: But can I have all the other appeal books except

volume 12 taken away and junked?

MR McALARY:	No.
McHUGH J:	You need volume 2, do you not?

Burnie(2)	86	1/12/92
MR McALARY:	You will certainly need volume 2.	The only

appeal books that I think are at all relevant in
any way are 1, 2, perhaps one thing in 3, and 12.
The others are not relevant and there is nothing
that I can find in them that is relevant.

MASON CJ:	It seems a complete waste of money to have had them copied and lodged in the Court.
MR McALARY:	Your Honour, today one feels more like a wharf

labourer carrying your brief to court than you do a
barrister because you go to court with trolley
loads of volumes of stuff and 95 per cent of it is
never looked at.

MASON CJ: Well, whose fault is that?

MR McALARY:

Your Honour, if I may say so, honestly, about

it, I believe it is partly the court's fault in
having regard to the tremendous amplitude of
discovery. Everything under the sun has got to be
discovered, and then everything that gets
discovered gets into these agreed volumes and you
conduct a case with 50 volumes of material in
agreed volumes -

MASON CJ: Well, that may be so at trial level but it is

certainly not so when the case comes to this Court.
Surely the parties and their representatives can
apply their minds to what is necessary for the
purpose of argument in this Court.

MR McALARY: Unfortunately, Your Honour, I am not here

sufficiently often to have the appropriate
experience on which I can draw to answer Your
Honour's question.
I was trying to outline the various matters

that we submit give rise to the duty and then (d)
was, from General Jones necessary reliance on

Burnie Port Authority to protect its produce from
risks arising out of the construction of the
extension and General Jones' inability to do so
itself; (e) from Burnie Port Authority's knowledge
of General Jones reliance on it to protect and
safeguard the refrigerated produce in the cold
store; (f) from Burnie Port Authority's assumption
of that responsibility by embarking on construction
of the extension, with its attendant risks to the
operation of the existing cold stores, while
General Jones was still in occupation of same.
In other words, Your Honour, the issue of proximity, we say, is one which is to be decided as
an issue of physical proximity. There was
certainly physical proximity here. There was that
intimate relationship where one party is relying

Burnie(2)

1/12/92

upon another and the other knows of the reliance.
The party relying, being in a position where he is
unable to do, ought to protect himself and must
rely upon the other, and the other knows that he is
so relying and embarks upon the operation.
In those circumstances, in our submission, as

a matter of law, the court would draw or find a proximity relationship. The relevant basis for that is well known. I put it to the learned trial
judge that the decision of this Court in Stevens v
Brodribb was an example of finding a proximity
relationship in a situation which had heretofore
not apparently involved one because in Stevens v
Brodribb, as Your Honour the Chief Justice will
well remember, the plaintiff was not an employee of

the defendant. He was an independent contractor.
The person who injured him was an independent
contractor. Yet this Court was unanimous in the
view that where one person was involved in a
relationship with another, the former being the
person who was organizing and responsible for the
organizing of the situation, that he owed a duty of
care to the other in connection with the
organization.
The duty found by this Court, in relation to

Stevens, was a limited duty. Your Honour
Justice Deane dissented from that, if I remember correctly. But it was a limited duty, it was a
duty which did not extend to what might be called
the particular acts of the individuals involved but
it was a duty which extended to the proper
organization of the situation.
With respect, Your Honour, we submit that the

same type of situation arose here because what you
had was the Burnie Port Authority, in essence,
conducting itself as if it was a head contractor in
respect of this construction. It had excavated the

land, it had itself cast the concrete flooring and

it had designed the steel work. It subcontracted
the erection of the steel work. It also
subcontracted the electrical work and the

refrigeration work. In every way, it behaved as if
it were the head contractor. It coordinated the
activities of each of its subcontractors.
Now, in those circumstances it certainly owed

duties of care to the people with whom it was
dealing. But as this was being carried on on land
where it knew and had authorized another to store
his goods, and where these works would necessarily
involve risk of damage to those goods and the
storer of the goods could do naught to deal with
those particular risks, the only person who could
deal with them in any way was the Port Authority

Burnie(2)

1/12/92

and the Port Authority was fully aware of this and
was fully aware of the reliance which was being
placed upon it. In our submission, one gets a duty
of care and, not just the Donoghue v Stevenson
limited duty to take reasonable care yourself but,
in our submission, the extended duty which

Your Honour discussed in Kondis. In other words,
it was a duty to ensure, or to see that care was carried out; to see that care was taken by those
people who it was employing to carry out the duty
that it had voluntarily assumed.
Of course, I then move very simply - if I am

right on that, I can conclude my case by saying
that it was common ground that Wildridge and
Sinclair were guilty of gross negligence. If the
extended duty relationship exists and the Burnie
Port Authority is responsible for the negligence of
their subcontractor, the only issue, really, is
whether the extended duty of care exists and that
depends really upon an examination of what was
occurring and how it was occurring.
I sought to subsume that material in the

matters set out in section A of these notes; if I could just go to the second page of those. I set out in paragraph 6 that the construction of the
extension was being done by the Port Authority
itself, with sections of the work being

subcontracted. The Authority excavated the site,
poured the concrete foundations, designed the steel
work, subcontracted the erection of steel work, the
installation of electrical equipment, the

installation of refrigeration. I should add that
there was no dispute that the Burnie Port Authority
was coordinating the activities of its own
workforce and all the subcontractors and was
organizing those matters.
Now, Your Honours, there was no head

contractor appointed and - - -

BRENNAN J:

Do we have a copy of the subcontract with Wand

S?

MR McALARY:

Yes, there is, and I think that is in - yes, I

have got them. Your Honour I did dig them out, but
my memory is - it is some time since I looked at
them - that they did not assist. They were in
those order forms which people send, but I will get
them and make them available tomorrow morning.
But the one thing that I did want to conclude

tonight on was the importance of the Australian
Standard No. 1674 of 1974 and that is exhibit BPl0.
That standard requires the appointment of a
responsible officer for the purposes of dealing

Burnie(2)

1/12/92

with the precautions that need to be taken in
relation to the use of welders and fires which may
result from welding. There was no responsible
officer ever appointed in this case and it is a
matter we would draw attention to in due course in
relation to the issue of negligence. That is, not
the extended negligence where you have a
non-delegable duty, but the normal negligence which
does not go that far.
Your Honour, in our submission, the Burnie

Port Authority was in fact acting as a head
contractor and it had responsibilities arising out

of those assumptions. I have previously informed
Your Honours, I think, that the 20 or 30 cartons of isolite were hoisted into the roof at the eastern
end of the building, they were seen by Cooper as
being stacked under two RSJ's immediately below

where welding was to be done. The next day
Wildridge and Sinclair fillet welded a steel plate
to support a refrigeration unit during which sparks
from the welder ignited the stack of isolite
cartons, thereby producing a conflagration which
destroyed the building within a few minutes.
It was common ground that Wildride and

Sinclair were guilty of negligence and that they
were an independent contractor; it was common
ground that the fire escape from the premises
occupied by the Authority and spread to the
premises occupied by us and caused some $2.46
million damage.

BRENNAN J:

If it is common ground that they are an

independent contractor, what is the causal link
between the damage and the alleged negligence of
the Port Authority?

MR McALARY:

The negligence of the Port Authority,

Your Honour, was the failure to deal with the

conditions under which fire and welding could take

place. The Australian Standard laid down
precautions which had to be followed and this

matter was simply totally ignored. Now, the -

BRENNAN J:

Does this standard bind the occupier or building

owner?

MR McALARY:

No, Your Honour, it is not a standard which has

statutory authority. Your Honour will probably be
aware that the Standards Association of Australia issue standards which deal with the safe carrying out of a whole variety of different matters. There
are standards on, I think, hundreds of different

matters. One of the standards is the cutting and
welding safety code, but there are other safety
codes - - -

Burnie(2)

1/12/92

BRENNAN J:

Does this mean that if I get a welder to come

along to weld a balustrade on my steps, am I liable
if he fails to perform in accordance with that
standard, whereby damage is caused to some other
person?

MR McALARY:

No, Your Honour, the way we say, with respect,

the standard is relevant here is that this was a
large operation, not like handling a domestic
matter; that they were in fact engaged in a very

extensive industrial activity. Now, those types of
activities generate very large risks and a

multiplicity of risks. Some of them will come to
fruition unless appropriate precautions are taken.
This standard contains the rules for fire prevention in arc or flame cutting, flame heating
and arc or gas welding operations, and what it
requires, Your Honour, is firstly:
A responsible officer is the person with
satisfactory knowledge of potential hazards
and precautions necessary to provide adequate protection against fire and explosive hazards
associated 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.
And then section 2 requires the appointment of

an appropriate officer. It says:
A responsible officer shall be appointed to have charge of fire precautions in all arc or flame heating or arc gas welding operations.
He shall be responsible for the safe

enforcement of all such operations. He shall
give authority to enforce this code in respect
of both employees and to outside contractors

and workers. Where the work has been carried
out by a contractor appointment of the
responsible officer shall be by negotiation
between the principal and the contractor.

Now, Your Honour - and I might just add, "hazardous locations, locations in which flammable
volatile liquids, highly flammable gases, highly
flammable mixtures and other highly flammable
substance are or have been manufactured, used,
handled or stored." So this is an Australian wide
standard for use and if used and complied with, it
will, not necessarily totally obviate all the
problems but it will certainly produce significant
mitigation on them. Now it was common ground that
although these quite extensive welding operations
were going to be carried out, no responsible

Burnie(2)

1/12/92

officer was ever appointed and there was nothing
done by the Port Authority which was co-ordinating
the matter to see that that was done.

GAUDRON J:

Mr McAlary, can I interrupt you there, to ask

you this? Is that not tantamount to saying there
was a non-delegable duty?

MR McALARY: Well, both of them come in the same way, with

respect, Your Honour. We would have said, with
respect, that this was a situation of non-
delegable duty within the way in which His Honour
the Chief Justice formulated in Kondis's case. In
Kondis's case His Honour pointed that the question of whether the duty was delegable or non-delegable
depended upon the relationship which existed
between the plaintiff and the defendent. It did
not involve the relationship between the contractor
and the defendant. It is the relationship between
the Port Authority and General Jones that I say
gave rise to the non-delegable duty, but this sort
of thing is within the ambit of that very
relationship, because they are undertaking the
work, they were co-ordinating the work, they were
the only people who had any capability of dealing
with the issue and therefore those factors, brought together, are what produce the obligation, not just to take care in relation to themselves, but to
ensure that care is taken in relation to people who
are their contractors. Therefore, in our
submission the obligation is not delegable, it is
not disposed of by giving it to the independent
contractor, it is an obligation which arises out of
that particular relationship.
Your Honours, I see it is a quarter past

according to my - - -

MASON CJ:

How long will the balance of your argument take?

MR McALARY:	A half hour, Your Honour.
MASON CJ:	Mr Barnard, how long will you be in reply?

MR BARNARD: Mainly to do with facts; I would have thought

half an hour, Your Honour.

MASON CJ:

We will adjourn until 10 o'clock tomorrow

morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 2 DECEMBER 1992

Burnie(2)

1/12/92

[1992] HCATrans 346

Key Legal Topics

Areas of Law

Negligence & Tort

Property Law

Legal Concepts

Duty of Care

Negligence

Causation

Damages

Appeal

On the application for leave that passage	was
discussed and I will come back to it, but	that
comment is not supported by the other two	judges
nor the findings from Mr Justice Neasey.	However,

contractors and lawful visitors, as well as
his servants and agents.	The effect of the

humanity.	No one can assert that the presence
of such a fire is "an increased danger", that
is, increased beyond that occasioned by the ordinary use of the land, or, phrasing the notion differently, that the use of the land for such a purpose is a "special use". On the contrary, fire for the maintenance or ordinary comfort of life, is a necessary adjunct of
civilized existence, and an elemental purpose
of the use of land by the human race.

negligence.	But whether that be so or not we say
he is quite clearly distinguishing that in looking

South Wales Fire Brigade organization.	He had
twenty-five years' experience in fire

building inspections.	He had inspected many
flour mills and had acquainted himself with

flour mills.	He had had an extensive
experience of many kinds of fires.	The

agency which is introduced on to the land of the
defendant?	I mean, in some cases obviously fire is

was authorised by a contract for felling and	burning. It no doubt contained a stipulation
that an interval should elapse between the two
operations, presumably in order that the bush cut should be thoroughly dried so that the
burning should be as complete as possible. It is not easy to say why "about February" should
have been specified as the time of burning, for there is some evidence that the cocksfoot harvest which would be endangered is usually
going on throughout that month.

calorific value, about 95% of crude oil.	Once
alight it burns fiercely as a geometrical

the purpose of defreezing certain pipes.	He was
using a blow torch, which was common usage.

owned by the Greater London Council.	They wanted
the bungalows removed.	They arranged to have the
housing ministry do that.	The housing ministry
employed an independent contractor.	He burnt upon

water.	So the person who plugged the pipe is
treated as a "stranger".	And I will read on:

garden would light a fire.	It was alien to
anything which she permitted him to do.	He
was in that respect a 'stranger'.

I refer to Hazelwood v Webber, 52 CLR 269.	The
headnote is at 268:

actual decision in this case, is there not, though,
with other cases?	I mean, supposing a steel maker

was the last place that he saw them.	They were in
a jumbled heap.	He had also confirmed in the week

take out and divide it up into items.	The whole
thing must be taken as a single entity.

Mr Justice Deane asked at the leave application.	I
think, with respect, I can satisfy Your Honours
that it is not essential.	Can I do that by taking

flame it was highly explosive.	By itself, it was
completely safe.

store was made of isolite, as it was; the walls were	isolite panels with aluminium skins; the ceiling was
isolite, I think they also had aluminium skins to the panels; even the floor had an isolite sandwich;
the refrigeration was lagged in isolite. That was
what was to be erected.

that authority has never been doubted.	It is a
unanimous authority of this Court.	I had read to

read the cases.	The fire can be lit
non-negligently but left negligently.	So it really

of that section of the advice of Lord Moulton.	May
I, since I am at that page, ask Your Honours to
look at the next page, 303, towards the bottom.
His Honour deals with the social relevance and

Burma and transporting them to England.	Moving
down to the bottom of page 547:

and I need not worry about the second.	The
provision then says:

is dry, arid, and much of it drought stricken.	We
have a season in which in New South Wales, and I

condescending way.	I	meant that Your Honour is
correct. That was, I	think, the original basis,

Mcinnes, as in Black v Christchurch.	They are
really cases of nuisance, are they not?

land, it had itself cast the concrete flooring and
it had designed the steel work.	It subcontracted
the erection of the steel work.	It also