Burnie Port Authority v General Jones Pty Ltd

[1992] HCATrans 81

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H7 of 1991

B e t w e e n -

BURNIE PORT AUTHORITY

Applicant

and

GENERAL JONES PTY LTD

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Burnie 1 13/3/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 MARCH 1992, AT 9.33 AM

Copyright in the High Court of Australia

MR J.E. BARNARD, QC:  May it please the Court, I appear with

my learned friend, MR S.R. WORSLEY, for the

applicant. (instructed by Archer Bushby)

MR F.S. McALARY, QC: If Your Honours please, I appear on

behalf of the respondent with my learned friend,

MR A.J. ABBOTT.	(instructed by Dobson Mitchell &
Allport)

MASON CJ:	Mr Barnard.
MR BARNARD:	The applicant, the Burnie Port Authority have

been found liable for damages caused by fire to the

respondent's frozen goods which were stored in a cool store on the Port Authority land. The fire

started in a roof void and - - -

MASON CJ:  We are familiar with the facts so you need not be

concerned with the facts.

MR BARNARD: Well, if the Court is familiar with the facts,

I would go on and leave that.

MASON CJ: But before you move on to what is the real issue

in the case, so far as this application is

concerned, could I ask you this question: is this
question, as it were, a real live question so far

as the applicant is concerned It has an indemnity

against the perpetrator of these activities, has it

not?

MR BARNARD:  It has, but it is a live question financially.

The situation is, of course, so far as the

perpetrator is concerned, it cannot recover.	The
damages here have been agreed, so far as the
applicant and the respondent are concerned, at

$2,246,000-odd and then there is another $680,000

damage to the property and the indemnity that can

be got - and there are other amounts in issue too -

the indemnity is far short of that.	The
unindemnified would be approaching $1 million.
I may say at the outset, what we say are

matters of general application are the meaning, for

the purposes of the rule in Rylands v Fletcher of

what is a non-natural user, firstly, and secondly,
we say that this finding is inconsistent with the
reasoning in Stevens v Brodribb relating to strict

liability for dangerous or hazardous activities.

We go and point out that here there was no

negligence - the learned trial judge found there

was no negligence on the part of the Port Authority

and that finding that there was no negligence on

the part of the Port Authority was not challenged

Burnie 2 13/3/92

on appeal. That appears on page 123, where

Mr Justice Zeeman, at line 10, said:

This appeal does not call for a consideration

of whether it can be said that the appellant

is liable either as the result of its own

negligence or as the result of being

vicariously liable for the negligence of WS.

Wildridge and Sinclair, and that is the

refrigeration contractor. Mr Justice Crawford

agreed with the reasons given by Mr Justice Zeeman.

At the trial, as the Court is aware, the

Port Authority was held liable in accordance with the principles laid down in Beaulieu v Finglam and the Full Court has now ruled that that rule has

been absorbed into Rylands v Fletcher.

The learned trial judge had held that

liability could not be established on the basis of

Rylands v Fletcher because welding on the
appellant's premises was not a non-natural user and
he looked at the question of the use as being the

question as to whether welding itself was a

non-natural use.

We would point out that this was not a case of the appellant procuring the doing of the act which

caused the fire so that it is liable for the

consequences for anything necessarily involved but

being done. It is not a case similar to Black v

Christchurch Finance Company. The act which caused

the fire was a collateral act of the contractor and

this flows from the learned trial judge's findings

and from the statements of the judges on appeal.

The learned trial judge, at page 62, line 18

of the application book, had said:

The fire occurred because of failure to take

an extremely simple and easy precaution, which

any competent welder should without a second

thought have deemed it necessary to take;

namely, to remove the cartons of Isolite well

out of the possible range of any prospective

welding operations.

He made a similar statement at page 75, line 4, and

at page 59 he had gone through - - -

GAUDRON J: Could you just clarify something for me,

Mr Barnard? Was it your client's Isolite? It was

not the welder's Isolite, was it?

MR BARNARD:  The Isolite was lagging which was brought on to

the site, and purchased, by Wildridge and Sinclair,

Burnie 3 13/3/92

the independent contractor, for the purpose of

lagging the pipes.

GAUDRON J: It was their's then?

MR BARNARD: Well, it was their's. Of course, it was to

become the Authority's.

At the top of page 59, the learned trial judge

had said:

I find that WS was negligent in all these

respects, except particular (4)(i).

And he had gone through, on the previous two pages,

the particulars of negligence alleged against

Wildridge and Sinclair, and we would point out that

they involved acts which it failed to perform on

their close proximity to each other they would

the day, in other words, stacking the cartons of

catch fire; the fire would be difficult to
control; failing to provide any or any adequate

means by which the fire in the roof void could be

fought, controlled or extinguished, and I think I

need not read them, but they are all collateral

acts of negligence.

When one turns to the judges on appeal,

Mr Justice Zeeman, at page 127, line 21, says:

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 particular flammable
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.

So, what His Honour has done there is looked not

merely at the welding operations but the way in

which it was carried out, namely, the unsafe way by

doing it near cartons of Isolite where the

Burnie 4 13/3/92

cardboard cartons were liable to catch alight from

the products of welding.

He goes on:

Plainly it is no answer to liability upon

the basis of Rylands v Fletcher that the fire

was brought on to the appellant's premises by an independent contractor. It was not argued

that there was not an escape of fire from the

appellant's premises to the respondent's

premises so as to attract Rylands v Fletcher

type liability. In my view the appellant was

liable upon the basis of the principles

enunciated in Rylands v Fletcher as developed

in later cases.

Mr Justice Cox, at page 107, line 36, of the

application book, had said:

In the present case although welding was

a necessary part of the work contracted to be

done by WS and the emission of sparks or

molten metal in the course of that process was

inevitable, it was not argued that the

negligence of the contractor was other than

purely collateral. It follows that in my view

the appellant was not liable to the respondent

on the basis found by the learned trial judge.

He having, in the previous sentence, said:

The true rule in my view is that the occupier

will be responsible for the escape of fire due

to the negligence of his independent

contractor if the latter's act is one

expressly or impliedly authorized or directed

and the negligence is not purely collateral.

And he is referring to the Black v Christchurch

Finance Co type situation.

Again, at page 109, he had said, line 6: 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, agree with him that the actions 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.

MASON CJ:	What about the previous paragraph commencing on page 108?
Burnie	13/3/92

MR BARNARD:  Yes, I was going to deal with that. Let me say

in relation to this, and we can offer no

explanation of how he comes to this, but it is

apparent from pages 13 and 14 that the trial judge

found that the assistant engineer of the Port

Authority had gone up on the previous day when the

Isolite cartons were being raised up on the eastern

end of the building with a rope and pulley and his

evidence was that the cartons were being just

thrown in the roof void and, of course, the roof

void is a vast area, and where they might be

ultimately stacked would be another matter.

Other evidence had indicated they were being

stacked at that time. The trial judge expressly

rejected that other evidence at page 13 and

accepted the evidence of Mr Cooper, the engineer
employed by the Port Authority. In the last

sentence he said:

However, I prefer Mr Cooper's evidence to

Mr Lillico's for accuracy about details, and

where they differ on this point, I accept

Mr Cooper.

And, in fact, the evidence is that the Port

Authority or nobody representing the Port Authority

saw the Isolite boxes when they were stacked and

nor did anybody from the Port Authority go up into

the roof void on the day when the fire occurred,

and the evidence is that nobody in the Port

Authority was aware that this particular welding

operation was being carried out.

Now, I appreciate the comments that are made

there by Mr Justice Cox but we say we do not know

how they are founded and we say there is a clear

finding and it has never been challenged that there
was no negligence on the part of the Port

Authority.

GAUDRON J: It does not necessarily follow that it would

remain unchallenged, does it, if special leave were

granted?

MR BARNARD:  It was not challenged on appeal before the Full

Court, and it was a very relevant matter to

challenge there. In our submission, they should

not be allowed to do it on appeal.

GAUDRON J:	I am just looking, Mr Barnard, at page 139 of the book where it is suggested that it is time to
develop a unifying principle, as it were, in this
area.
MR BARNARD:	Yes.

Burnie 6 13/3/92

GAUDRON J: It seems a little odd that you should advance

that by way of grounds for application for special

leave and at the same time emphasize that there has

been no challenge to the finding that there was no

negligence.

MR BARNARD:  We would say it is important in this case to

know that there is no finding of negligence against

the Port Authority and that that has gone

unchallenged because the case should be determined

now, the law should be determined on the basis of

that, and we say it is very important, having

regard to the decisions on non-natural use, that
the use of the land made by the Port Authority was

not a negligent use or one for which they can be

blamed.

MASON CJ:  Now, what are the propositions that you are going

to advocate if you succeed in obtaining special

leave?

MR BARNARD: 

The proposition that we are going to advocate,

the position being that it seems that the decision
of the Court here, and that is based on a line of

authorities, that, firstly, in determining whether

there is a non-natural user, that one cannot look

to the negligence of an independent contractor,
that - - -

MASON CJ: 

You argue that welding is a natural user of the

land?

MR BARNARD:  We would argue that welding is a natural use of

the land.

MASON CJ:  And so far you seem to have the views of the

Full Court on your side in relation to that.

MR BARNARD:  Well, it is the method of welding. They talk

of time, place and circumstance and convert welding

into a non-natural use.

MASON CJ: That you attack?
MR BARNARD:	And that is what we attack by looking at what

is done, the acts of an independent contractor. We

say that all the text writers complain that what is

a non-natural use is uncertain, and I was about to

refer the Court to those, and that the Court should

look at that issue, and the text writers, of

course, and why that is put in the affidavit, go on

and say that liability under Rylands v Fletcher is

almost equated with liability and negligence and

you never, or rarely, if ever, find liability under

Rylands v Fletcher if there also has not been

negligence at the same time and we say that that is

a matter that should be cleared by the Court.

Burnie 7 13/3/92

But we go on to say that quite clearly here

that we have been held liable for these collateral

acts of an independent contractor and we say that

is inconsistent with the Court's statements in

Stevens v Brodribb. The only difference here to us

being made strictly liable for dangerous or extra

hazardous activities is the fact that we are owner of the land. That fact has not contributed in any

way to what happened. And we would be in the

situation, if we are liable here, that if

General Jones had a truck sitting outside this cool
store full of its peas, waiting to put them in the cool store, and that truck had got burnt, we would not be liable for that but we would be liable,

under this decision, for the damage to the building

and we say that is a situation which would be

illogical and not justified on any view of the

facts that are taken here.

That is the way we put this matter, and I

would take the Court more specifically to those

matters.

MASON CJ:	What matters?
MR BARNARD:	To what we say about the question of

non-natural user and also about the inconsistency,

whether -

MASON CJ:  Yes. I do not think there is any occasion to do

it in detail, Mr Barnard.

MR BARNARD:  If the Court pleases. Well, that is the way

in which we put this appeal.

MASON CJ: Yes, Mr McAlary?

MR McALARY:  Your Honour, we submit that this is a simple

case within the principle of Rylands v Fletcher.

May I put to Your Honours the way in which we see

the case?	We would concede that industrial land on
the Burnie waterfront is naturally used for the

storage of materials and I would be even going so

far as to make the concession that the construction

of a building on that such land would fall within

the natural user of the land.

The issue in the case is whether this

welding - and the emphasis there is on the word

"this" - was an ordinary accepted incident of such building operations. Now, in order to answer that

question, one comes to what seems to me to be the

major point in the appeal and that is how do you

look at welding. There are two ways it can be

dealt with: one was adopted by the trial judge;

the other was adopted by the Full Court. The trial

judge said that the welding operation was to be

Burnie 13/3/92

considered simpliciter; it was to be considered as

taken with its all its proper proportions, and if

you took it simpliciter, devoid of time, place and

circumstance, and with all its proper precautions,

it was a natural user. That, of course,

Your Honours, involves a hypothetical inquiry.	You
are not looking at any question of fact, you are
looking at an inquiry as to the way in which a
welding can properly be carried out.	It does not

deal with how you would bring to account time,

place and circumstance.

The Full Court took the other view,

Your Honours. They said that welding has to be

considered in its setting; it has to be considered

in the time, place and circumstance in which it

occurs. So, for the Full Court, the inquiry was a

factual inquiry to be determined by them.

Now, with respect, we submit, Your Honours,

that the authorities on this issue are all one way.

Without taking Your Honours to them in detail, I

rely upon what was said by this Court in Hazelwood

v Webber where the matter is set out in some

detail. I will read you the passage in a moment,

Your Honours. It is repeated in Torette House v

Berkman by Sir Owen Dixon, as the former

Chief Justice then was, and there is a final

passage in Reid v Lyons where the way in which this

issue is to be dealt with.

So, what I say, with respect, Your Honours, is

that the issue in the appeal is an issue between

whether you do deal with the matter on some

hypothetical basis, that is, that you take welding,

with all its precautions - and I do not know under

what temperature conditions or what conditions it

is to be taken, but that is my learned friend's

position and that was the trial judge's position.

Could I take Your Honours just for a moment to

material in the judgment of the Chief Justice what seems to me to be the best statement of this	Justice Gavan Duffy, Rich, Dixon and McTiernan in
Hazelwood v Webber. I had Your Honours three
copies of that.

MASON CJ: Thank you.

MR McALARY:  Your Honours, Hazelwood v Webber was the

lighting of a fire under arid conditions - summer

conditions with apparently a high ambient

temperature. There was no negligence. If one goes

to page 276, right at the bottom the discussion

commences:

Burnie 9 13/3/92

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, there is no negligence. Then we deal with the

basis for the doctrine of Rylands v Fletcher:

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 -

and this is where we tend to deal with a

non-natural user -

effectual use and enjoyment of land in a

reasonable manner according to its character

and the uses for which it is adopted,

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 then could I turn over the page. They mention

the development of the non-user doctrine and then

at page 278, about the eighth line down:

Burnie 10 13/3/92

Now in applying this doctrine to the use of

fire in the course of agriculture, the benefit

obtained by the farmer who succeeds in using

it with safety to himself and the frequency of

its use by other farmers are not the only

considerations. The degree of hazard to

others involved in its use, the extensiveness
of the damage it is likely to do and the

difficulty of actually controlling it are even

more important factors. These depend upon

climate, the character of the country and the

natural conditions. The question is not one

to be decided by a jury on each occasion as a

question of fact. The experience, conceptions

and standards of the community enter into the

question of what is a natural or special use

of land, and of what acts should be considered

so fraught with risk to others as not to be

reasonably incident to its proper enjoyment.

Then they turn to deal with the situation in

relation to arid conditions in Australia.

Now, Your Honours, in Torette House v Berkman

you find this passage that I have just read quoted

by Mr Justice Dixon, and he then goes on to

emphasize - I will just pick the sole words up.	He
says:

Time, place and circumstance, not excluding

purpose, are of course most material

considerations.

And Reid v Lyons is the well-known passage by

Lord Porter to the same effect.

So, Your Honours, with respect, we suggest the

authorities here require and rationally require

that the question of whether or not the user is to

be treated as natural or non-natural is to be

determined by what occurred at the time and place

and in the circumstances. Otherwise, you are

involved in some form of hypothetical inquiry which

really can never be satisfactorily formulated

because if you are trying to say whether the use of

fire is a natural or non-natural user, if I just go

to the Hazelwood v Webber situation, you would be in the position of trying to determine whether it

is a natural user when the ambient temperature is

high or low or where it is; the conditions of

foliage; the volume of combustible material. All

these, with respect, we suggest, just have to be

brought to account, as the courts have always said,

in deciding whether the user is natural or

non-natural.

Burnie 11 13/3/92

Now, Your Honours, in the present case the relevant circumstance was not a high ambient

temperature as in Hazelwood v Webber.	What you had
here was something quite different.	You had the
storing of some 20 to 30 cartons of Isolite.	Now,
Isolite was a highly inflammable, combustible
system.	Once it got going it gave rise to a

conflagration and that happened in this very case.

The fire developed within - I can take you to the

evidence - two to four minutes. The men had to

flee the roof void to avoid being burnt to death.

The whole building collapsed in about four minutes.

Now, this welding operation was carried out in proximity to the Isolite. There was not the normal precautions taken so that it was clear in the end

that if the fire originated from the welding

operation, as the trial judge found, and not from

static electricity and all sorts of other

alternatives that were run at the trial, but if it
came from the welding operation, that was the

source of the fire, then there was clearly

negligence on the part of Wildridge and Sinclair.

So, what we would say, with respect, is that

when you come to assess whether or not welding is a

natural or a non-natural user, one has to take it

in its setting, and if you take it in the setting
in which it occurred here, then every consideration

which has been referred to in Hazelwood v Webber

speaks in my favour, because this was a ferocious

fire, as described. People ran; it caused millions

of dollars damage. Attempts to put it out were

hopeless. People who ran to the fire - they saw it

just as a small blaze, just a little blaze - people

ran and tried to pull the cartons away and were

driven back by the heat, it developed so speedily.

A man took a fire extinguisher and emptied it upon

the fire. He could not maintain his position. He

came back. The whole roof started to blaze

within - and the time given is two to four minutes.

They vacated the thing and the building was gone.

So, if you turn to look, therefore, at those considerations which are referred to by

Mr Justice Dixon in this Court in Hazelwood v

Webber, the damage which it would do; the inability

to control it; the risks involved; all, in our

submission, answer this as being a non-natural

user. Indeed, I would have said it would be

impossible to argue, if you can have regard to

those factors in assessing whether it is a natural

or non-natural user, that it could be found that it

was a natural user.

DEANE J:  Mr McAlary, you are really putting it as if it is

irrelevant whether the fact that the Isolite was

Burnie 12 13/3/92

there was known by the Authority or not.	Is that
the way you are putting it or - - -?

MR McALARY:  I say, with respect, it is so irrelevant but we

say, in addition, the Authority knew that it was

there and that is the point about Mr Cooper's

evidence.

DEANE J:  I follow the strength of what you say if the

Authority knew where it was and where the welding

was taking place. It is not self-evident to me

that what you are saying is to the point if the

Authority did not know that the Isolite was there.

MR McALARY:  Your Honour, in the court below there was no

discussion about negligence at all. It was argued

on the basis, initially, that the ..... rule

applied and then Rylands v Fletcher was put as an

alternative. I would have disputed my learned

friend's assertion that the issue of collateral

negligence was even dealt with in the court below

as such. There was an issue about what the

Authority knew and what they saw because Mr Cooper

was present and saw the cartons hoisted up.	I
cannot remember all the details.	I did not look at

all the details of the evidence. But the way I

would have said, with respect, Your Honours, is

that this was a question of fact in the end and the

Full Court had ample authority to decide the

question of fact. I can give Your Honours the

references, but the matter is a rehearing under

section 46(1) of the Tasmanian Supreme Court Act

and under section 47(2), where the appeal is from a

trial judge sitting without a jury, they have full

power to review the judgment of questions of both

fact and law.

MASON CJ: But the issue was one of conflict of oral

testimony, was it not?

MR McALARY:  No, it was not, really, Your Honour.

MASON CJ:  Was it not?

MR McALARY:  No. No, there is no question of conflict of

oral testimony on this point. There was conflict

of oral testimony about whether or not the sparks
could travel and did travel but one would need to

examine the material at the trial. The man who was

doing the welding was not called so you had a lot

of oral testimony about how many cartons there were

stacked and just how high they were stacked and

structure, of that nature, but the matters that I

have been putting to you are common ground matters,

that is, that there was this stack of cartons;

whether it was in one, two or three rows, I do not

really rely on. The nature of the conflagration

Burnie 13 13/3/92

that resulted is not a matter about which there was

any dispute.

DEANE J: But the point we are, I think, trying to direct your attention to is do you support what is said

from page 108 to 109 which is the passage the

Chief Justice referred Mr Barnard to? That is the

last two lines on page 108 and the rest of the

paragraph?

MR McALARY:  Yes, Your Honour, I certainly do. I thought I

had made that clear when I answered Your Honour's

questions previously:

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 - - -

DEANE J: Well, that is where it stops.

GAUDRON J:	Is the evidence all one way as to the part of the premises where these cartons were stored?
MR McALARY:	Your Honour, that is difficult to answer. There is no doubt that it is all one way in the
sense it was at one particular end of the building,
but whether it was so many feet from the end of the building or additional area - - -

GAUDRON J: Well, what you would say if it came to that, I

suppose, is, well you knew the Isolite was there;

you knew the welding operations were there. There

was some sort of obligation to check.

MR McALARY:  Yes, Cooper saw them pulled up through

the - - -

GAUDRON J: Yes.

MR McALARY:	The boxes of Isolite were drawn up outside the building in the old way they used to load and
unload kegs from a ship into a warehouse. They
pulled them up outside the building, took them
through a void and stored them on the ceiling.
Now, whether they stored them 10 feet in or 5 feet
in was a matter of great dispute.  The reason it
was such a matter of dispute was that there was no

Burnie 14 13/3/92

doubt where the welding was taking place. Everyone

could identify that.

So, the question of how far it was from where

the welding was taking place and where the cartons

were was a matter of enormous dispute because of

the issue as to whether sparks would fly that far.

Now, that was where the issue was. It was whether

or not a person using this welder at this point

could send sparks far enough to ignite the cartons.

His Honour found so after examining a great deal of

material in which other suggestions were made.

I submit, with respect, Your Honours, that

there is no basis for the grant of special leave.

This is a simple case falling within Rylands v

Fletcher and the principles are clear and

relevantly applicable.

GAUDRON J: What do you say, Mr McAlary, about the absence

of any challenge to the finding of no negligence?

MR McALARY:  Your Honour, I submit with respect - I did not

try to base a case what I would call on negligence

simpliciter.	I based my case in Rylands v
Fletcher.	Now, in those terms the question of

whether you have negligence simpliciter is not a

direct issue. It arises in relation to the

question of whether the user is natural or

unnatural but it is simply a factor, and it was in

that area that there was some discussion about what
had occurred. But in terms of saying that the

Burnie Port Authority was responsible for the

negligence of Wildridge and Sinclair simply because

Wildridge and Sinclair were negligent, that was not

put.

Those are my submissions.

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

MR BARNARD:  If the Court pleases. We say this, that it is

perfectly clear from page 13 that there was a
conflict of evidence as to what was done on the day

before in lifting the cartons up and whether they were stacked in Mr Cooper's presence or not then,

and Mr Cooper's evidence about that was accepted.

We say my learned friend supports that proposition

on pages 108 and 109. There is no doubt the

evidence as to where the cartons were stacked was

dependent upon the evidence of Wildridge and

Sinclair's employees and there was no evidence of

other persons in relation to that, and, of course,

there was argument as to whether they were as far

away from the welding as they said they were.

There was dispute about that, but there was never

any question, in our submission, and my learned

Burnie 15 13/3/92

friend has not raised it, about the knowledge of

the welding going on, of this particular piece of

welding going on, and there was never any evidence

of the Authority people having seen the cartons in

their stacked position once you accept the evidence

of Mr Cooper, as did the learned trial judge.	And
that never became an issue before the Court of Appeal.

Now, my learned friend has referred to Torette

House, and particularly to Sir Owen - - -

MASON CJ:  Now, before you leave that question, Mr Barnard,

it does seem to me at the moment that it is a very

important question because whilst it may be said

that the general question that you seek to agitate

is a question of some importance which would, in a

suitable case, warrant the grant of special leave

to appeal, if we are left with the impression that

there is another issue of fact which, if ultimately

determined favourably to the respondent, would

result in the respondent's success, then we would

not be inclined to pick up this case as a suitable

vehicle for determining the principal question that

you are seeking to agitate.

MR BARNARD: With respect, if the Court please, all one can

make statements about what the evidence is and one can look at the judgment of Mr Justice Neasey, and

had this been known - had there been evidence which

could have implicated the Authority, one would have

been expected it to be dealt with in such a long

detailed judgment or to have been raised before the

Court of Appeal specifically as negligence on the

part of the Authority, but it never comes up

anywhere that they knew this operation was going on

or had reason to expect it to be going on.

MASON CJ: But, of course, the respondent was not the

appellant before the Full Court, was it?

MR BARNARD:  The respondent?

MASON CJ:	The respondent?
MR BARNARD:	Before the Full Court we were the appellant,

but they were supporting a finding they had got and

they sought to support it in other ways.

MASON CJ: They could have supported it in other ways.

MR BARNARD:  They could have supported it by saying there

was negligence and he should have found negligence.

MASON CJ:  Now, on this question of knowledge - your

client's knowledge - was it merely a contest

Burnie 16 13/3/92

between the evidence of Cooper and the evidence of

Lillico, was it?

MR BARNARD: Lillico, yes. Well, that was the only evidence

of what took place with regard to the stacking.

MASON CJ:  And the only evidence that bore on your client's

possible knowledge?

MR BARNARD:  Our client's engineers gave evidence. Well,

Mr Cooper gave evidence and, of course, Mr Berwick

was not involved in either of this and did not go

on either day. Mr Cooper was the man who went to

the site. His evidence as to what was going on is

the other way and, in our submission, there could

be no other source unless somebody had said they

saw him there or saw him up in the roof void on the

day of the fire.

GAUDRON J: But is there any doubt, Mr Barnard, but that

your client knew that welding operations would take

place?

MR BARNARD:  None whatsoever. A refrigeration engineer has

to weld pipes to put them in.

GAUDRON J:  And there was no doubt that it knew that

Isolite was on the premises?

MR BARNARD:  The walls of the building were made of Isolite.

The Isolite had to go around all the pipes.	The
whole building was made of Isolite.

GAUDRON J:  And it knew that there were cartons of Isolite

on - - -?

MR BARNARD:  Well, we certainly knew. We knew that it had

to come in cartons.

GAUDRON J:  And the only point of contention is whether you

knew precisely where the cartons were located?

MR BARNARD: Certainly. But, of course, that is in the

context that welders, wherever they do their

welding, are obliged to keep flammable material

away from where they do their welding, a safe

distance away from it. And here, I should say, it

is not the Isolite that presents the danger in

being present, it is the cartons that provide the accelerant to light the material. The issue here

is, and as indicated by the findings of negligence,

the real negligence is doing it when you have got

cardboard cartons where spatter from the welding

can hit those cartons.

DEANE J: But I am missing something. You concede that your

client knew the welding was going on?

Burnie 17 13/3/92

MR BARNARD:  Not this particular piece of welding.

DEANE J:  I see. But your client knew where the Isolite was

stored?

MR BARNARD:  No. My client saw the Isolite being lifted or

its engineers saw it being lifted into the roof

void.

DEANE J: At one stage if knew where the Isolite was stored

because it is common ground, is it not, that

Mr Cooper did see where it was stored even though he might have been mistaken?

MR BARNARD:  No. That is at page 13, with respect, when the

learned trial judge speaks of what happened on the

day before, at the beginning:

Mr Cooper, an engineer who was employed on the site by BPA as an assistant to its then

acting Port Engineer, Mr Berwick, saw a number

of such cartons, which he estimated to be

between 20 and 30, being hauled up using a

rope and pulley, on the afternoon before the

day of the fire. One man was on the ground

and another in the roof void receiving the

cartons. Mr Cooper entered the roof void

while that operation was going on, in order to

speak with the foreman of the WS welding gang,

Mr Ian Whyman. Mr Cooper said there was only

one man receiving the cartons, and he was not

stacking but throwing them to one side at the

eastern end of the ceiling, just on the

southern side of the centre one of the three

vertical steel mullions (though he conceded

his recollection was uncertain about this last

point).

Mr Cooper's evidence in this respect

differed from that of Mr Lillico -

and he goes on, and he speaks of Mr Lillico, and

then at the bottom he says:

However, I prefer Mr Cooper's evidence to

Mr Lillico's for accuracy about details, and

where they differ on this point, I accept

Mr Cooper. This means that the cartons must

have been stacked at some later time, before

the fire.

So that Mr Cooper does not know where the cartons

were being stacked because his - - -

DEANE J:  I am missing something. It seems to me that

His Honour is clearly accepting that Mr Cooper saw what was happening.

Burnie 18 13/3/92

MR BARNARD:  Saw them being lifted up, yes.

DEANE J: But may be mistaken seven years later.

MR BARNARD:  No, no. His Honour is saying that Mr Cooper

saw them being lifted up; being hauled up by rope

on the afternoon.

Mr Cooper said there was only one man

receiving the cartons, and he was not stacking

but throwing them to one side at the eastern

end -

so that he specifically finds they must have been

stacked at some later time. But it would not

matter, even if he had seen them stacked, he would

have had to have known that welding was going to go

on at this particular point.

This roof void is a very large area and the

work of joining pipes had not got anywhere near the

eastern end at the time when this fire occurred,

and there was all sorts of other welding work that

took place, pieces that had to be welded up to

support the pipes and matters of that nature. But

there was nothing to lead to the conclusion that he

would know welding would go on near cartons or at

that point on that day or about that time.

If the Court pleases, my learned friend

referred to the statement of Sir Owen Dixon in

Torette House v Berkman which the Court has but I

would point out that was the case where it was a

matter of an escape of water from one premises to

another and that is where Sir Owen Dixon referred

to, as my learned friend properly quoted, to time,

place and circumstance, not excluding purpose are,

of course, most material considerations and that

was the case where the plumber had come on and

turned on a stopcock with the mains water off and

later had turned on the mains water and gone away

without turning off the stopcock and the water had

escaped in that way, and it was held that the use

of the water in the premises was a non-natural use
and the negligence of the independent contractor,

the plumber, was not taken into account, as my

learned friend would have it, to turn what was a

natural use into a non-natural use.	As His Honour
said:

As the plumber was an independent

contractor the defendant cannot, in my
opinion, be held vicariously responsible for
his negligent act.

The very facts of that case are against the proposition for which my learned friend contends.

Burnie 19 13/3/92

MASON CJ: Yes, thank you, Mr Barnard. The Court will give

its decision in this matter immediately following
the luncheon adjournment. There is no occasion,

Mr Barnard or, for you, Mr McAlary, to be present on that occasion.

AT 10.25 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.06 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case.

MR ABBOTT: If Your Honour pleases.

AT 2.07 PM THE MATTER WAS ADJOURNED SINE DIE

Burnie 20 13/3/92