Burnie Port Authority v General Jones Pty Ltd - [1991] TASSC 85

72/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Burnie Port Authority v General Jones Pty Ltd [1991] TASSC 85; [1991] Tas R 203; A72/1991

PARTIES:  BURNIE PORT AUTHORITY
  v
  GENERAL JONES PTY LTD

FILE NO/S: FCA 84/1988
JUDGMENT

APPEALED FROM: General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd & Burnie Port Authority 28/1988

DELIVERED ON:  11 September 1991
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Crawford and Zeeman JJ

Judgment Number: A72/1991
Number of paragraphs: 90

Serial No 72/1991
List "A"
File No FCA 94/1988

BURNIE PORT AUTHORITY v GENERAL JONES PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX J
CRAWFORD J
ZEEMAN J
11 September 1991

Order of the Court

Appeal dismissed

Serial No 72/1991
List "A"
File No FCA 94/1988

BURNIE PORT AUTHORITY v GENERAL JONES PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX J
11 September 1991

The appellant authority was held liable for damage sustained by the respondent company when fire escaped from a part of premises at Burnie in the occupation of the appellant to another part thereof occupied by the respondent pursuant to an agreement whereby the latter was given the sole right to the use of that part (stage 1). Prior to the fire, the appellant commenced building works comprised in stage 2 and engaged a contractor, Wildridge and Sinclair Pty Ltd (WS) to undertake a part of the works, no principal contractor being employed. The contract of WS required it to supply and install certain refrigeration and electrical services and it was known to the appellant's employees that welding would be carried out on stage 2 by workmen employed by WS as part of that contract. It was furthermore known by the appellant's employees that cardboard cartons containing isolite had been stacked in the ceiling void.

On 20 December 1979, as the result of negligence on the part of a workman employed by WS, sparks emitted in the course of welding being carried on by him in the appellant's premises fell on to the cardboard cartons which in turn ignited the isolite. This burnt fiercely and the fire spread rapidly to other parts of the building damaging goods of the respondent stored in the part occupied by it.

The learned trial judge found that the fire was caused by the negligence of WS's servant, that WS was an independent contractor engaged by the appellant, that WS was on premises occupied by the appellant at the request and for the purpose of the appellant, that the fire escaped to separate premises occupied by the respondent and that the respondent thereby sustained damage. His Honour held that:

"The rule is that an occupier of land is liable for damage caused by the spread of fire from his land caused by the negligence of his independent contractor. Since I have found that WS was negligent in this regard, and that it was an independent contractor employed on its premises by (the appellant) I must hold that (the appellant) is liable to (the respondent) under this head."

The appeal challenges this conclusion.

The earliest expression of the law in respect of the occupier's liability for the escape of fire from his premises to those of others is to be found in Beaulieu v Finglam (1401) YB 2 Hen 4, fo 18, pl 6 where Markham J said:

"I shall answer to my neighbour for each person who enters my house by my leave or my knowledge, or is my guest through me or through my servant, if he does any act, as with a candle or ought else, whereby my neighbour's house is burnt. But 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 burnt and my neighbours' houses are burnt as well, for this I shall not be held bound to them; for this cannot be said to be done by wrong on my part, but is against my will."

Nearly three centuries later, Holt CJ in Turberville v Stampe (1697) 1 Ld Raym 264 held that escape of fire from a close of heath onto an adjoining close of heath due to the act of God would excuse the defendant; that "a man ought to keep the fire in his field, as well from the doing of damage to his neighbour, as if it were in his house"; and (per Holt CJ, all the other justices agreeing) "if a stranger set fire to my house, and it burns my neighbour's house, no action will lie against me."

In Balfour v Barty–King [1957] 1 QB 496, Lord Goddard CJ, delivering the judgment of the Court of Appeal, further traced the history of the occupier's liability for the escape of fire and said (at pp503–504):

"Sir William Holdsworth, in his History of English Law, Vol XI, p 607, 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. This provision was re–enacted in the Fire Prevention (Metropolis) Act, 1774, s 86, an Act which has been held to extend to the whole country. That it was necessary to give this measure of exemption to householders seems to show that by the common law there was an absolute duty to prevent the escape of fire, and this was the opinion of Blackstone, who says (Commentaries I, p 431) that the common law was altered by the Statute of Anne. The two cases cited above, however, show that at common law the act of God and the act of a stranger were exceptions, and in Musgrove v Pandelis [1919] 2 KB 43; 35 TLR 299 it was held that the statute which protects the householder in the case of an accidental fire leaves the other heads of liability at common law untouched. The citation in that case from the judgment of Lord Denman CJ in Filliter v Phippard (1847) 11 QB 347, 354 shows that in his opinion the common law was that a person in whose house a fire originated and which afterwards spread to his neighbour's house was responsible for the damage, and it was to that liability that the statute was directed.
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. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger."

The Fire Prevention (Metropolis) Act 1774 initially in force throughout Australia by reception of English law (although repealed and not re–enacted in New South Wales – Hazelwood v Webber (1934) 52 CLR 268) was repealed "so far as it is in force" in Tasmania by the Local Government (Consequential Amendments) Act 1962, s33 but was re–enacted in substance by s37 of the same Act as s11(15) of the Supreme Court Civil Procedure Act 1932 which provides:
"(15) No action or process may be had, maintained, or prosecuted against a person on whose land a fire accidentally begins, and he shall not be required to pay recompense for any damage suffered thereby, any law, usage, or custom to the contrary notwithstanding."
By the middle of the 19th Century it was clear that a person in whose house a fire was caused by the negligence of himself or his servant was liable if it spread to that of his neighbour but he was not liable if the fire was caused by a stranger. What was not then clear was whether or not an occupier was liable for the negligent escape of fire caused by any person present on his premises with his leave or at his invitation so as to make him liable for the negligence of, say, an independent contractor.

In Laugher v Pointer (1826) 4 B & C 547 (108 ER 204), it had been decided that though in general terms a master was responsible for the acts of his own domestic servants, he was not necessarily responsible for the negligent acts of a servant supplied by an independent contractor. That was a case where the owner of a carriage who had hired horses from another was held not responsible for the negligence of the coachman whose services were supplied by the proprietor of the hired horses. Nevertheless, Littledale J said at p560 (ER at p209):

"The rule of law may be that in all cases where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants. The injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by any acts of persons whom he brings upon the premises. The use of the premises is confined by the law to himself, and he should take care not to bring persons there who do any mischief to others."

Abbott CJ said at p576 (ER p215):
"Whatever is done for the working of my mine or the repair of my house, by persons mediately or immediately employed by me, may be considered as done by me. I have the control and management of all that belongs to my land or my house; and it is my fault if I do not so exercise my authority as to prevent injury to another."

Still no case had been decided by this time where an occupier was held liable for the escape of fire through the negligent act of an independent contractor.

Subsequent to the decision in Rylands v Fletcher (1868) LR 3 HL 330, a number of cases can be found where an occupier was held liable for the escape of fire caused by the negligent act of an independent contractor. Of course negligence is not an essential ingredient of a claim in nuisance and some of the cases sustain the liability of the occupier irrespective of negligence. Thus, in Black v Christchurch Finance Co Ltd [1894] AC 48, the plaintiff claimed damages for the escape of fire in mid–summer in New Zealand lit by the defendant's independent contractor "in a negligent and improper manner" and "negligently permitted to spread" by the defendant. The jury was not asked to make any finding on the issue of negligence which was disputed but liability was established on the part of the defendant because it was proved that it had contracted with the independent contractor to clear and burn bush on its land and that the latter had done so at a time when admittedly, with a north west wind blowing, his act was attended with great risk to the plaintiff's property.

In Balfour v Barty–King (supra) the Court of Appeal held the occupiers of a building liable for the escape of fire due to the negligence of an independent contractor engaged to thaw frozen pipes in the loft. He had applied a blow lamp to the pipes which were in parts lagged with felt which caught fire. Lord Goddard CJ at p504 posed the question as to who is a stranger within the meaning of the common law rules set out in Turberville v Stampe (supra). He ventured the answer "clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his home to do work on it, and who does the work in a negligent manner."

In Eriksen v Clifton [1963] NZLR 705, McGregor J dealt with the case of an occupier who desired to burn gorse off her property. She obtained a permit from the fire brigade, arranged with neighbours to do the burning off on a weekend and for them to be present with hoses to control the fire. A few days before, an independent contractor who had been requested by the occupier to do the actual burning, visited the property to inspect the proposed work. Without the occupier's knowledge or consent, he lit a fire which spread and caused damage to a neighbour's property. McGregor J held the occupier not liable for the fire, it not being, in the circumstances, "his (her) fire" (ignis suus). He said at pp709–710:

"... it seems to me if the fire is brought on to the property of the occupier by a third person, the fire is not the fire of the occupier unless such third person is one over whom the occupier must in the circumstances exercise a duty of control. It must be at least, in my opinion, a licence under which the bringing on to the land by the wrongdoer of the dangerous substance which may do damage in the event of its escape is or should be in contemplation so that the duty of control by the occupier arises. It is often said that liability is based on the maxim sic utere tuo ut alienum non laedas. In other words, the liability of the occupier is founded on the use to which he puts his property.
On the other hand, if the fire is started by an independent contractor, the employer may still be liable for the negligence of the independent contractor carrying out the work contemplated, or which should be in contemplation, under the terms of his contract. If it is or should be contemplated that fire will be a medium for the work to be done by an independent contractor, the fire is in reality the fire of the employer who is then under a duty to control such fire, and consequently is liable for its escape. If the employer delegates to an independent contractor work involving the use of fire, a duty arises to exercise control in regard to such action. If the employer fails to exercise such control he is responsible for the negligence of the independent contractor, but this is in truth personal negligence on the part of the employer in failure to exercise control. Likewise an occupier has a duty to control his guest when it should be in contemplation of the parties that fire or candle may be used by the guest. But in my view if the person who originated the fire is a trespasser or a licensee in such a situation where there is no duty to exercise control, no liability is imposed on the occupier."

The next English case in which it is asserted that an occupier is liable for the escape of a fire caused by the negligence of an independent contractor is H & N Emanuel Ltd v The Greater London Council [1971] 2 All ER 835. There the Master of the Rolls, Lord Denning held the Greater London Council as successor of the London County Council liable, as occupier, for the escape of fire negligently caused by an independent contractor employed to demolish and remove prefabricated bungalows. Notwithstanding a clause in the contract that no rubbish was to be burnt on the site, it was known to the Council that the contractor made a practice of burning off small pieces of wood on the sites where he was engaged to demolish such buildings. Lord Denning held the Council liable because it could anticipate that the contractor would act in this way. Having cited the dictum of Sir John Holt CJ, Lord Denning MR said (at p839):
"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: such as the person in Rickard v Lothian [1913] AC 263, [1911–13] All ER Rep 71. 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:
'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 [1936] AC 65 at 69, [1935] All ER Rep 555 at 558. It seems to me that the New Zealand case of Eriksen v Clifton (supra) falls within this category. 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'."

Another 20th Century English case of some significance is Honeywell & SteinLtd v Larkin Brothers Ltd [1934] 1 KB 191. There, the plaintiff, having temporary occupancy of a cinema theatre, engaged an independent contractor to take photographs of the interior. The contractor first took a photograph without a flashlight but as it was not satisfactory then took photographs with a flashlight which, according to the evidence, was the usual method of photographing interiors. This involved the ignition of magnesium powder in a metal tray held above the lens and when the powder was ignited it flared up and developed an intense heat. The contractor lit the powder close to a curtain which caught fire and caused damage. The trial judge found his action in so doing negligent. The Court of Appeal in a judgment read by Slesser LJ, held that the plaintiff, which was claiming indemnity from the independent contractor for the damage caused to the owner of the theatre, was liable to the latter for the negligent act of the independent contractor. The reason advanced for liability, that is, that where a person employs an independent contractor to do work which involves a special danger to another person's premises, he must, by reason of the extra–hazardous nature of the work, take reasonable precautions to see that it does not cause damage to the premises, has been criticised in Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 at p168 (affirmed 1939 (62) CLR 637), doubted in Stoneman v Lyons (1975) 133 CLR 550 and rejected in Stevens v Brodribb Sawmilling Company Pty Ltd (1985) 160 CLR 16, but the ultimate conclusion that the plaintiff was liable to the owner has not, in my understanding, been said to be wrong.

The last two mentioned cases in the High Court reaffirm the expression of principle by Jordan CJ in Torette House Pty Ltd v Berkman (supra) on the vexed question of the liability of a person for the acts of his independent contractor. At p165 his Honour said:
"... there is no general rule that a person who procures the doing of an act which is lawful, in the sense that it is not inherently unlawful and needs no statute to authorise it, becomes in all the circumstances subject to a legal duty to see that reasonable care is taken to prevent injury to persons exposed to the consequences of anything and everything that may be done in the course of the performance of the act. He is of course subject to such a duty if he does the act himself. And if he procures it to be done by an agent, he is liable for everything done by the agent within the scope of his employment. If, however, he employs an independent contractor to do the act, then although he is liable for all the consequences of the results contracted for, he is not as a general rule responsible for damage occasioned by negligence on the part of the contractor in applying the methods selected by the contractor for achieving those results, these methods and their application being matters over which the employer has no control, and not being methods which must necessarily be used and from which damage must necessarily result."
At p167 Jordan CJ referred to Honeywell & SteinLtd v Larkin Brothers Ltd (supra) but prefaced his criticisms of the doctrine of extra–hazardous activities enunciated by Slesser LJ by remarking that the person found liable had "employed an independent contractor to take the photograph for him which involved the use of a flashlight and the photographer in doing the very thing that was contracted to be done caused a fire which injured the premises." [My emphasis]. At p170 his Honour said:

"A person who procures the doing of an act is liable for its actual consequences and for anything necessarily involved in its being done whomsoever he may have procured to do it. He is liable for the acts of any agent of his acting within the scope of his employment. For the actual breach of any duty owed by himself he is responsible whatever steps he may have taken or agency he may have employed to endeavour to prevent a breach. In certain special circumstances, if he causes an act to be done he incurs a liability to see that care is used to prevent injury from being caused by methods incidentally used to produce the result, whomsoever he may employ to produce it. But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is 'dangerous,' 'hazardous,' or 'extra–hazardous'."

In Stoneman v Lyons (supra) Stephen J said at p564:
"An employer will, whether or not the activity is regarded as extra–hazardous, be liable in negligence for the consequences to third parties both of acts which he specifically authorizes or directs and of methods not so authorized but which are necessarily involved in performing those acts. For the consequences of other negligent conduct of the contractor the employer will not be liable; he did not, in the language of Jordan CJ, have control over that conduct. In my view the significant fact is that it formed no part of that which the employer, by the contract, required the contractor to perform. In the terminology of the doctrine of extra–hazardous activity that conduct is likewise excluded from the area of the employer's liability by being described as collateral negligence. As Pollock CB said, in Hole v Sittingbourne & Sheerness Railway Co (1861) 6 H & N 488, at pp498–499 [158 ER 201, at p204]:
'Where the act complained of is purely collateral, and arises incidentally in the course of the performance of the work, the employer is not liable, because he never authorized that act – the remedy is against the person who did it.'
To regard the matter as depending upon authorization, express or necessarily implied, as did Jordan CJ, avoids the search for the elusive criteria which must serve to identify both the suggested category of 'extra–hazardous activities' and those acts styled 'collateral negligence'. It seems to me to be a preferable approach."
In Stevens v Brodribb Sawmilling Co Pty Ltd (supra) Wilson and Dawson JJ said at p42: "The direction taken in this Court has also been away from strict liability for tortious behaviour" and at pp43–44 said:
"Where an independent contractor is employed to do the very thing which, if done by the employer himself, would constitute a breach of duty on his part, then the employer will nevertheless be liable for any consequent loss or damage. Moreover, where precautions can be taken against loss or damage and the failure of an employer to ensure that his independent contractor takes those precautions amounts to an authorization of the act or omission causing the harm, then the employer will also be liable. That is the explanation of cases such as Bower v Peate (1876) 1 QBD 321 and Dalton v Angus (1881) 6 App Cas 740. With them may be contrasted a case such as Stoneman v Lyons (supra). In that case an owner of land employed a builder to carry out work which required the wall of an adjoining building to be underpinned. The builder, without consulting the owner or his architect, dug a trench along the whole of the wall and excavated pockets under the wall so that when rain fell the wall collapsed. The owner was held to be not liable for the damage but the result would have been different if the owner had required the builder to do what he did or had countenanced it by failing to require underpinning. As it was, the builder was guilty of what Lord Blackburn in Dalton v Angus (supra), called 'collateral negligence', for which the owner was not liable."
That, with respect, seems to me to be the true basis upon which liability could have been said to rest in Honeywell & Stein Ltd v Larkin Brothers Ltd (supra). The photographer's act was not an act of collateral negligence but was impliedly authorized by the employer. The method of conducting the work in fact employed was necessarily involved in performing the work authorized. Equally, in my view, the negligent acts of the independent contractors in both Balfour v Barty–King (supra) and Emanuel v The Greater London Council (supra) might be said to be acts impliedly authorized. It is true that Lord Goddard CJ in the former case seemed to regard the negligence of the independent contractor as collateral for he contrasted the case with that of Black v Christchurch Finance Co Ltd (supra) which he did not find of much assistance saying (at p504), "the lighting of the fire was not a casual, or, as it is sometimes put, a collateral act of negligence; it was the very thing that he was employed to do." In any event, Black's case was decided in nuisance and for that reason alone was of limited assistance in resolving Balfour's case. Nonetheless, his Lordship made the point in argument at p498, "if the use of a blow lamp is one of the recognised methods of thawing frozen pipes, is there not an invitation to the workman to use that recognised method?" and in the judgment of the Court (at p505), "Mr Stevenson's argument was that in the present case it was not the defendant's fire as the contractor was not employed to light a fire or to use a blow lamp or any other form of fire. But that is answered by the fact that the use of a blow lamp is an ordinary way of freeing frozen pipes." It seems clear from these excerpts that his Lordship in fact regarded the use of flame from a blow lamp as, by necessary implication, a method authorized by the employer.

The same approach can be taken to the case of Emanuel v The Greater London Council (supra). Lord Denning MR at p837 referred to the evidence which showed that, despite the stipulation in the contract, it was the regular practice of the contractor to burn rubbish on site and (at p838) to the inference which he drew that the Greater London Council knew of the practice notwithstanding the prohibition in the contract. The act of creating the fire was not so alien to the invitation in either case as to constitute the independent contractor a "stranger" but in each case was one which the employer knew, or ought to have known, would be done in the performance of the contract and was accordingly authorized. Lord Denning MR it is true did not rest his decision any more than did Lord Goddard on the basis that the occupier was liable for the independent contractor's negligence in doing what the former authorized or directed him to do but rather on the proposition derived from Beaulieu v Finglam (supra) that "the occupier is liable for the escape of fire which is due to the negligence of anyone other than a stranger" (at p839), the authority for the act being relevant to his status as a person other than a stranger. However Edmund Davies LJ who concurred in the dismissal of the appeal while not dissenting from Lord Denning's line of reasoning rested his decision as well on the personal negligence of the occupier saying at p841:

"There was in my judgment in the present case personal negligence by the London County Council in failing to exercise control in the circumstances."

He also relied on the principle enunciated in Rylands v Fletcher (supra). The third member of the Court, Phillimore LJ adverted to the case of Beaulieu v Finglam (supra) but seems to have rested his judgment on the proposition that the London County Council was vicariously liable for the negligence of the Ministry of Works which, though not the occupier, had engaged the contractor on behalf of the London County Council. He concluded his judgment (at p842):
"Now, it seems to me that if an occupier owes a duty, he cannot, by handing over the performance of the work on his land to somebody else refrain from any sort or kind of supervision, say: 'well I have delegated my responsibilities to the Ministry.' I think the LCC and consequently the GLC are liable for what was in effect the negligence of the Ministry of Works in failing to supervise the activities of the contractor. The Ministry of Works was on the site with leave and licence and indeed at the request of the LCC, and the LCC cannot escape liability for their act or omission any more than could the owner of the house in Beaulieu v Finglam".

With respect, the case of H & N Emanuel Ltd v Greater London Council & Anor (supra) does not show a united and unequivocal acceptance of the principle that the common law imposes strict liability on an occupier for the escape of fire caused by the negligence of an independent contractor.

None of the Australian cases cited in argument directly affirm or reject the proposition than an occupier of land is liable for damage caused by the spread of fire from his land caused by the negligence of his independent contractor in all circumstances. Many cases involving the liability of the occupier for the escape of fire were decided in nuisance and did not involve negligent conduct (McInnes v Wardle (1931) 45 CLR 548; Hazelwood v Webber (1934) 52 CLR 268; Hargrave v Goldman (1963) 110 CLR 40) by the majority Taylor and Owen JJ, (Windeyer J dissenting as to nuisance); others have been decided in negligence but of servants rather than independent contractors. (Bugge v Brown (1919) 26 CLR 110; Wise Brothers Pty Ltd v Commissioner for Railways (NSW) (1947) 75 CLR 59; Pett v Sims Paving and Road Construction Co Pty Ltd [1928] VLR 247; Smith v Badenoch [1970] SASR 9). Still others have been resolved on the basis that the defendant was not in reality the occupier (eg Whinfield v The Lands Purchase and Management Board of Victoria & Anor (1914) 18 CLR 606). Nevertheless, as my brother Zeeman J points out in his reasons for judgment which I have had the advantage of reading, there have been a number of observations suggesting that the liability of an occupier other than in nuisance is not absolute. (See for example the comments of Windeyer J in Hargrave v Goldman (supra) at p58 relying on Hazelwood v Webber (supra) and those of Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Co Pty Ltd (supra) at p42). 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.

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. However it was argued by the respondent that in that event the appellant would nonetheless be liable for the consequences of the fire in nuisance on the principle of Rylands v Fletcher (supra), a basis rejected by the learned trial judge.

In Hazelwood v Webber (1934) 52 CLR 268 in a joint judgment of Gavan Duffy CJ Rich, Dixon and McTiernan JJ, their Honours said at pp277–278:

"Accordingly, when the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way. The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. In his judgment in Bamford v Turnley (1860) 3 B & S 62, at p83; 122 ER 25, at p33, where the earliest expression of the ground of the qualification appears, Bramwell B spoke of the common and ordinary use of land as opposed to use in an exceptional manner. Lord Cairns in his speech in Rylands v Fletcher (supra), by which the generality of the qualification upon the rule was established, spoke of use 'in the ordinary course of the enjoyment of land' and of 'non–natural use'. Others have preferred the simple epithets 'extraordinary' or 'exceptional.' But in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v Lothian (1913) AC 263, at p280, Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from 'some special use bringing with it increased danger to others' and 'not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community'."

The application of the doctrine will necessarily vary with the nature of the potentially mischievous element or thing and the circumstances in which it is used. Thus in the same case in applying the doctrine to the use of fire in the course of agriculture their Honours continued at p278:

"... 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."

In Read v Lyons [1947] AC at p176, Lord Porter said that in deciding the question whether the particular object can be dangerous or the particular use can be non–natural "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".

In Benning v Wong (1969) 122 CLR 249, Windeyer J made some observations on the phrase "non–natural use of the land" and said at pp301–302:

"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 Unites Stated '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 (supra), and the discussions by Professor Newark in his article in the Modern Law Review, (1949), vol65, at p488, and by Dr Stallybrass in the Cambridge Law Journal (1929), vol3, p 376, seem to me inconclusive."

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.

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.

In my view the appellant was liable for the respondent's loss in nuisance and notwithstanding the error in assigning liability upon the basis of Beaulieu v Finglam (supra), judgment was rightly entered for the respondent. I would dismiss the appeal.
File No FCA 94/1988

BURNIE PORT AUTHORITY v GENERAL JONES PTY LTD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
11 September 1991

Subject to the comments I make, I agree that the appeal should be dismissed, for the reasons expressed by Zeeman J

On the subject of Rylands v Fletcher (1886) LR 3 HL 330 I do not see that Sochacki v Sas [1947] 1 All ER 344 supports an argument that the categorisation of a use as being "natural" or "non–natural" is to be made without reference to time, place or circumstances. The particular place and circumstances surrounding the lighting of the fire (in a fire place and so on) were taken into account by Lord Goddard CJ when reaching his conclusion that the room was being used "in the ordinary, natural way in which the room could be used". That the defendant had left the room for two or three hours with the fire burning, with no fire guard or fender, raises the question whether the ultimate determination of fact, that there was a natural user, was correct. But I see no statement of legal principle by Lord Goddard CJ that is open to question.

With respect I do not agree with the explanation of Zeeman J of British Celanese Ltd v AH Hunt (Capacitors)Ltd [1969] 1 WLR 959. I think that the decision of Lawton J in that case, insofar as it concerned Rylands v Fletcher, proceeded on wrong principle. Lawton J expressly concluded, on the facts pleaded, that the manufacturing of electrical and electronic components was not a special use of land in 1964, and also that the bringing and storing on the premises of metal foil was not a special use in itself. He concluded that there was a natural user. He apparently chose to ignore a number of pleaded facts which included that the defendants caused or permitted a large quantity of the strips of metal foil to lie about in open air where they were liable to be blown away. The judgment does seem to me to support the appellant in this case. But if so, I consider that Lawton J was in error and that time, place and circumstances are relevant in the sense explained by Zelling J in Smith v Badenoch [1970] SASR 9 at pp13–14.
File No FCA 94/1988

BURNIE PORT AUTHORITY v GENERAL JONES PTY LTD

REASONS FOR JUDGMENT FULL COURT

ZEEMAN J
11 September 1991

The appellant is the occupier of land at the port of Burnie. In 1977, the appellant constructed upon this land a large building intending to fit it out in stages as cold stores. From 1 July 1978, three cold rooms and an office, forming part of that building, were occupied by the respondent upon the terms of an agreement expressed to have been made on 14 February 1979 whereby it was provided that the appellant agree to grant and the respondent agree to take "a licence giving the respondent the sole right to use the said premises for a period commencing on the 1st day of July 1978 expiring on the 30th day of June 1983 upon the terms and conditions hereinafter contained." At all material times, the respondent remained in occupation of these premises pursuant to the terms of this agreement. Whether the rights described by the agreement could accurately be described as constituting a licence may be doubted, but nothing appears to turn on this. The building was fitted out in stages. That portion of the building occupied by the respondent was comprised in Stage 1. During the course of 1979, the appellant was engaged in building works comprising Stage 2. No head contractor was involved. The appellant let contracts for various portions of the work. One of those contractors was Wildridge and Sinclair Pty Ltd ("WS"). Its contract required it to supply and install certain refrigeration and electrical services. On 19 December 1979, WS brought 30 cardboard boxes containing an insulation material known as "Isolite" on to the premises and hoisted those into the roof void where they were stacked. During the morning of 20 December 1979, an employee of WS was engaged in welding an RSJ at the premises. Some 10 to 20 minutes after the employee had completed that welding task, some of the boxes of Isolite were seen to be alight. The learned trial judge found that a fire commenced in the stack of cartons and that that fire was the product of sparks emitted as a result of the employee's welding operations. The fire spread very rapidly to other portions of the building, including that portion occupied by the respondent pursuant to the terms of its agreement with the appellant. It appears that substantial damage was done to goods which the respondent had stored upon the premises.

A number of actions were commenced claiming damages alleged to have been suffered by various parties as a result of the fire. The present appeal arises out of an action commenced by the respondent against the appellant and WS wherein the learned trial judge found the appellant and WS liable for such damages as had been suffered by the respondent. The quantum of those damages remains to be assessed. The learned trial judge ordered that WS indemnify the appellant in respect of the damages which the appellant might pay, and in respect of its costs. The only issue which falls for determination upon this appeal is whether the learned trial judge was right in holding the appellant liable for the damage suffered by the respondent.

The learned trial judge held that the appellant was liable upon the basis that an occupier of premises is absolutely liable for damage occasioned as a result of the escape of fire from his premises through the negligence of an independent contractor retained by the occupier. The earliest expression of principle as to the nature and extent of an occupier's liability for damage done by fire emanating from his premises is said to be found in Beaulieu v Finglam (1401) YB 2 Hen IV, fo 18, pl 6.

There is no question but that the appellant was the occupier of the premises where the fire started; that the fire started as the result of the negligence of an employee of WS; that WS was an independent contractor engaged by the appellant; that WS was upon the appellant's premises at the request and for the purposes of the appellant; that the fire escaped; and that the fire caused damage to the separate premises occupied by the respondent. The learned trial judge so found and those findings have not been challenged.

Having reviewed the authorities, the learned trial judge concluded as follows:

"The rule is that an occupier of land is liable for damage caused by the spread of fire from his land caused by the negligence of his independent contractor. Since I have found that WS was negligent in this regard, and that it was an independent contractor employed on its premises by BPA, I must hold that BPA is liable to GJ under this head."

If the learned trial judge was correct in so concluding, then this appeal must fail. If such rule does not form part of the law of Tasmania, or, if upon a correct formulation of the rule, the facts of the present case place it outside its operation, then a further question falls for determination. At the trial, the respondent asserted an alternative basis for relief against the appellant in that it submitted that the appellant was liable upon the basis of the rule laid down in Fletcher v Rylands (1868) LR 1 Ex 265, affd sub nom Rylands v Fletcher (1868) LR 3 HL 330. The learned trial judge rejected this argument, but on the hearing of the present appeal, the respondent submitted that if the learned trial judge was wrong in holding the appellant liable for the negligence of its independent contractor, then the appeal ought nevertheless to be dismissed upon the basis that the learned trial judge should have found the appellant liable upon the basis of Rylands v Fletcher (supra).

The learned trial judge held that the modern law in England as to the liability of an occupier of land for the spread of fire from that land to land of another caused negligently was as stated by Lord Denning MR in H & N Emanuel Ltd v Greater London Council [1971] 2 All ER 835 at p838, in the following terms:

"After considering the cases, it is my opinion that the occupier of a house or land is liable for the escape of fire which is due to the negligence not only of his servants, but also of his independent contractors and of his guests, and of anyone who is there with his leave or licence. The only circumstances where the occupier is not liable for the negligence is when it is the negligence of a stranger. It was so held in a case in the Year Books 570 years ago, Beaulieu v Finglam (supra) which is well translated by Mr Fifoot in his book on the History and Sources of the Common Law. The occupier is, therefore, liable for the negligence of an independent contractor such as the man who comes in to repair the pipes and uses a blowlamp: see Balfour v Barty–King [1957] 1 QB 496; and of a guest who negligently drops a lighted match: see Boulcott Golf Club Inc v Engelbrecht [1945] NZLR 556. The occupier is liable because he is the occupier and responsible in that capacity for those who come by his leave and licence: see Sturge v Hackett [1963] 3 All ER 166. But the occupier is not liable for the escape of fire which is not due to the negligence of anyone."

The learned trial judge considered a number of Australian authorities which were cited to him for the proposition that even if what Lord Denning MR said in H & N Emanuel Ltd v Greater London Council (supra) correctly stated the law in England, then it did not reflect the state of the law in Tasmania. Having reviewed all those authorities, his Honour concluded that none of them affected the law as stated by Lord Denning MR and that the law as stated by Lord Denning MR applied in Tasmania.

In Beaulieu v Finglam (supra) Markham J said:

"I shall answer to my neighbour for each person who enters my house by my leave or my knowledge, or is my guest through me or through my servant, if he does any act, as with a candle or aught else, whereby my neighbour's house is burnt. But 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 neighbours' houses are burned as well, for this I shall not be held bound to them; for this cannot be said to be done by wrong on my part, but is against my will."

This case is cited as authority for the statements appearing in Comyns' Digest and in Viner's Abridgment that by the common law a man in whose house a fire originated, though by no act or fault of his, and even if were accidental, was liable for whatever damage it caused to the house or goods of another. Whether that was ever correct may be doubted, at least to the extent that there was liability for accidental damage. "Negligence" was alleged as the gist of the action in Beaulieu v Finglam (supra) by the words "tam negligenter custodivit" used in the writ. However, as the learned authors of Winfield on Tort 8th ed said, at p438, "What 'negligenter' meant can only be conjectured, for the old authorities are confused". Winfield's conclusion was that "negligenter" was "a pleader's adverb" and did not carry the technical meaning of modern negligence. (See also Balfour v Barty–King (supra) at p503; McAuliffe v Hubbell [1931] DLR 835 at p839; and Whinfield v The Lands Purchase and Management Board of Victoria (1914) 18 CLR 606 at p614). Any suggestion that an occupier might be liable for a purely accidental fire was removed by the Statute 6 Anne c. 58 (c.31 Ruffhead) and its successors, now part of the law of Tasmania as s11(15) of the Supreme Court Civil Procedure Act 1932.

The action in Beaulieu v Finglam (supra) was counted upon a common custom of the realm as to which the whole court said that "the common custom of the realm is the common law of the realm." Allen, Law in the Making, (7th ed, at p73) refers to Blackstone's "general customs" or "customs of the realm" as being "those fundamental principles in legal relationships which for the most part are not to be found in any express formulation but are assumed to be inherent in our social arrangements. They are, in short, the Common Law itself. Their origin, discoverable only in social practices of which we have, at most, fragmentary evidence, is necessarily obscure." (See also Bebb v The Law Society [1914] 1 Ch. 286 at p296; Charlton v Lings (1868) LR 4 CP 374 at p383; and Greer: "Custom in the Common Law" 9 LQR 153 at p158).

The principle expressed in Beaulieu v Finglam (supra) was not a reflection of the prevailing view as to the nature and extent of the liability of a master for the acts of his servant. At that time the general principle appears to have been as expressed in Holdsworth, History of English Law, (3rd ed), vol3, p384, namely that a servant "will only render his master liable if he does that very thing which his master commanded him to do, and if that thing is a wrongful act. It is only if the act of the servant is the act of the master that the master can be held liable." Reference may be made to the observations of Martin J in YB 9 Hen VI, Mich pl 37. Holdsworth (supra) (at p385) described those general principles governing the liability of masters for their servants' misdeeds as being "logical deductions from the prevailing principles as to civil liability." The learned author considered the case of fire to be one of the exceptions (all relating to acts obviously dangerous) to the general rule, and said, at p385:

"In certain cases the master was regarded as being under a legal duty to avoid certain kinds of acts which were obviously dangerous. In these cases, if an act of this kind were done, either by the master or by his servants or by other persons for whom he was regarded as being responsible, and damage was caused, the master was held to be liable, because he had failed in the duty which the law had placed upon him.
(1) One of the most important of these cases was the liability for damage by fire. The law imposed a duty upon all householders to keep their fires from damaging their neighbours. Hence if a fire arose in a house by the act of any of the servants or guests and damage was caused to the houses of others, the owner was liable. He could only escape from liability if he could show that the fire had originated from the act of a stranger."

Pollock and Maitland, History of English Law, (2nd ed), vol2, p528, said:

"Before that date [ie 1688] there lie several centuries, comprising the age of the Year Books and the days of the Tudors and Stuarts, during which exceedingly few hints are given to us of any responsibility of a master for acts that he has not commanded, ...".

The learned authors then referred to Beaulieu v Finglam as apparently being the most important case in the Year Books imposing such responsibility upon a master.

"Negligence" on the part of the occupier (whatever may have been encompassed by that concept) was always alleged as being essential to the cause of action. In Allen v Stephenson (1699) 1 Lutw 90; 125 ER 47, a declaration alleging fire caused by the negligence of a lodger, but not alleging the negligence of the occupier, was held to be bad for "strangeness and insufficiency". It seems that the occupier's liability was primary liability for his tort rather than vicarious liability for the tort of another. In Shelly v Burr (1625) Bendloe (ed 1661) 153; 73 ER 1020, an action for fire on the custom of the realm was held not to lie against the occupier's wife, servant or guest.

What the early authorities do appear to suggest is that if a fire occurred in a man's house, he was prima facie bound to control it so as to prevent damage to his neighbour, and that such a failure prima facie established the cause of the fire was to be found in the neglect of some person in that house. That view is confirmed by Becquet v MacCarthy (1831) 2 B & Ad 951, 109 ER 1396 where Lord Tenterden CJ said, at p958 (ER p1399):

" ... by the law of this country before it was altered by the statute 6 Ann. c31, s6, if a fire began on a man's own premises, by which those of his neighbour were injured, the latter, in an action brought for such injury, would not be bound in the first instance to shew how the fire began, but the presumption would be (unless it was shewn to have originated from some external cause) that it arose from the neglect of some person in the house".

Turberville v Stampe (1697) 1 Ld Raym 264, 91 ER 1072 may be taken as authoritatively deciding what was then the common law based upon the custom of the realm expressed in the medieval cases, namely that by common law a man in whose house or field a fire originated, though by no act or fault of his, and even if it were accidental, was liable for whatever damage it caused to the house or goods of another, but subject to the following exceptions:

(1)Where the fire was caused by the act of a third person without any intervention of the terre tenant (see Co Lit 53a), or as Holt CJ said in Turberville v Stampe (supra), "... if a stranger set fire to my house and burns my neighbour's house, no action will lay against me."
(2)Where the damage was caused by the unexpected intervention of a natural agency and the act creating the fire is one done in the natural, ordinary and proper enjoyment of property. The Court, in dealing with the argument that the fire had spread by the act of God, said this "was good evidence to excuse the defendant at the trial".

Two general observations may be made in relation to the cases which I have mentioned and the other early authorities cited at the bar:

(a)none specifically dealt with the case of a fire started as a result of the act or default of an independent contractor; and
(b)all were decided prior to Rylands v Fletcher (supra).

Almost immediately after the decision in Rylands v Fletcher (supra) it became accepted that fire is a dangerous thing within the rule there laid down. At the same time, from its original formulation, the rule made an occupier liable for the acts of his independent contractors in circumstances where in all other respects the facts attracted the operation of the rule.

It is appropriate to examine a number of cases decided after Rylands v Fletcher (supra) but before the unequivocal re–affirmation of the medieval rule of strict liability on the part of an occupier for damage caused by fire emanating from his premises (subject to statutory modification) in Balfour v Barty–King (supra) and H & N Emanuel Ltd v Greater London Council (supra).

Jones v The Festiniog Railway Company (1868) LR 3 QB 733 was a case where the plaintiff's haystack had been fired by sparks from a railway engine operated by the defendant. The defendant was held liable upon the basis of Rylands v Fletcher (supra). The reported argument and the judgments do not suggest that any strict liability other than that arising upon the basis of the rule in Rylands v Fletcher (supra) was considered to exist although Turberville v Stampe (supra) was cited. Blackburn J (at p736) relied upon the rule in the following terms:
"The general rule of common law is correctly given in Fletcher v Rylands (supra), that when a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril; and is liable for the consequences if it escapes and does injury to his neighbour".
More relevantly, Lush J (at p738), in discussing the nature of the defendant's liability at common law, said:
"The case of Fletcher v Rylands (supra), and the authorities referred to in Com Dig Tit Action, upon the case for negligence (A.6), illustrate this principle".
It is appropriate to observe that Beaulieu v Finglam (supra) is one of the authorities so referred to in Comyns' Digest.

Powell v Fall (1880) 5 QBD 597 was a similar case and the Court of Appeal affirmed Jones v The Festiniog Railway Company (supra). The later case in turn was followed in Gunter v James (1908) 24 TLR 868. In that case the defendant sought to escape liability upon the basis that there was an absence of negligence, relying on Filliter v Phippard (1847) 11 QB 347; 116 ER 506 and Vaughan v Menlove (1837) 3 Bing (NC) 468, 132 ER 490. That argument was rejected but such rejection cannot be taken as having denied the existence of a further cause of action had negligence been established.

The importance of these cases, and of Mansel v Webb (1918) 88 LJ KB 323, is that none suggest the continuing existence of a cause of action against an occupier for damage occasioned by the escape of fire from his land independently of liability upon the basis of the rule in Rylands v Fletcher (supra). Further the dictum of Lush J in Jones v The Festiniog Railway Company (supra) to which I have referred appears to have treated Beaulieu v Finglam (supra) as being illustrative of the general principle expressed in Rylands v Fletcher (supra).

Black v The Christchurch Finance Co Ltd [1894] AC 48 was essentially determined by way of interpretation of a contractual term. It appears to have been common ground before the Judicial Committee of the Privy Council that if the contractor who had lit the fire which caused damage to the plaintiff had burnt bush by way of acting under his contract with the defendant, then the defendant was liable. The only question which had been left to the jury was whether the fire which caused the relevant damage had been lit by the contractor. The Judicial Committee did not embark upon any consideration of the legal basis of the defendant's liability if upon a proper construction of a contract the contractor had acted pursuant to its terms.

Prior to the decision in Balfour v Barty–King (supra), Black v The Christchurch Finance Co Ltd (supra) was cited in texts in support of the propositions that the special medieval rule as to an occupier's liability as to fire continued to have operation and that an occupier was liable for the acts of an independent contractor in this respect. It may be doubted whether that case is authority for either of those propositions. The Judicial Committee, at p54, expressed the obligation imposed upon a person lighting a fire or authorising the lighting of a fire on land in the following terms.

"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). And if he authorises another to act for him he is bound, not only to stipulate that such precautions shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences. See Hughes v Percival (1883) 8 App Cas 443 and authorities there cited."

Their Lordships appear to have based their reasoning upon the doctrine of liability for dangerous operations or extra hazardous acts. The existence of such a doctrine was denied by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1985–1986) 160 CLR 16 at pp30, 42 and 47.

Spicer v Smee [1946] 1 All ER 489 appears to have been decided upon the basis that whilst generally a person is not liable for the default of an independent contractor, the position is different in the law of nuisance. Doubts have been expressed as to the correctness of that broad principle (eg A I Ogus, "Vagueries in Liability for the Escape of Fire", 27 CLJ 108 at p118) and the principal authority relied upon in that case for that broad proposition, namely Bower v Peate (1876) 1 QBD 321, was otherwise explained in Stevens v Brodribb Sawmilling Co Pty Ltd (supra) at p43. In any event Spicer v Smee (supra) did not purport to rely upon the existence of any rule derived from Beaulieu v Finglam (supra).

It would appear that the only direct English authority for the propositions that the cause of action referred to in Beaulieu v Finglam (supra) still survives and that the occupier of land is vicariously liable for damage caused to adjoining property by fire started upon his land by the negligence of an independent contractor is to be found in Balfour v Barty–King (supra) and H & N Emanuel Ltd v Greater London Council (supra). After the decision in Rylands v Fletcher (supra), but prior to those cases having been decided, there had been no suggestion but that the source of absolute liability for damage done by the escape of fire was to be found by applying the rule in Rylands v Fletcher (supra) and not otherwise.

The leading judgment in H & N Emanuel Ltd v Greater London Council (supra) was delivered by Lord Denning MR As I understand his judgment, (at pp836–840), it propounds the following propositions of law expressed to be based on the authorities to which I refer:

(1)An occupier of a house or land is liable for damage done by a fire which escapes from his house or land due to negligence except where the negligence is that of a stranger (Beaulieu v Finglam (supra)).
(2)For these purposes, a stranger is anyone who in lighting a fire or in permitting it to escape acts contrary to anything which the occupier could anticipate that he would do.
(3)An independent contractor is not by virtue of having that status a stranger (Balfour v Barty–King (supra)).

I have difficulty with the judgment of Edmund Davies LJ His Lordship appears to have proceeded upon the basis that the evidence established that there was personal negligence on the part of the occupier in failing to exercise any degree of supervision and control over the independent contractor and his servants. His Lordship did not find it necessary to consider the question of strict liability at common law. For the proposition that the occupier was liable in failing to exercise control in the circumstances he referred to Balfour v Barty–King (supra); McInnes v Wardle (1932) 45 CLR 548; and Erikson v Clifton [1963] NZLR 705.

Phillimore LJ, whilst referring to what Markham J said in Beaulieu v Finglam (supra), appears to have decided the case upon the basis that the occupier was liable for the personal negligence of the Ministry of Works in failing to supervise the activities of the independent contractor rather than being vicariously liable for the activities of the independent contractor.

Having regard to the differing approaches on the part of the various members of the court, it may be doubted whether that case is in fact authority for the propositions which I have distilled from the judgment of Lord Denning MR It is, however, appropriate to consider Balfour v Barty–King (supra) upon which his Lordship appears to have relied significantly, and which appears to be the first case directly dealing with the question as to whether or not an occupier may be liable for the escape of fire from his premises when such fire has been occasioned by the negligence of the occupier's independent contractor. At pp502–504 Lord Goddard CJ, delivering the judgment of the Court, said:
"The question which this court has to consider is whether Havers J was right in holding that for the spread of the fire from their premises to those of the plaintiff, the defendants are responsible, although the fire was caused by the negligence of independent contractors brought on to the defendant's premises to do the work that I have described. On this matter there seems to be no direct authority. From very early times it seems to have been recognized in our law that there is a special duty to guard against an escape of fire. It is perhaps not without interest to observe that in dealing with the meaning and derivation of 'curfew,' the Oxford Dictionary points out that its imposition was not an act of political repression. It was a precautionary measure, that people should not retire for the night and leave their fires burning. The Encyclopedia Britannica says that curfew was rung at Oxford in the days of Alfred the Great. In days when houses were built mainly of timber and when thatch was the commonest roofing, a spark might, and indeed in a country village may still, do almost incalculable damage.
The earliest case on the subject which the industry of counsel or our own researches have discovered is Beaulieu v Finglam (supra) conveniently translated in Mr Fifoot's History and Sources of the Common Law, 1st ed (1949), p 166. 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 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 (supra). 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 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".'
Sir William Holdsworth, in his history of English Law, Vol XI, p 607, 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. This provision was re–enacted in the Fire Prevention (Metropolis) Act, 1774, s 86, an Act which has been held to extend to the whole country. That it was necessary to give this measure of exemption to householders seems to show that by the common law there was an absolute duty to prevent the escape of fire, and this was the opinion of Blackstone, who says (Commentaries I, p 431) that the common law was altered by the Statute of Anne. The two cases cited above, however, show that at common law the act of God and the act of a stranger were exceptions, and in Musgrove v Pandelis (supra) it was held that the statute which protects the householder in the case of an accidental fire leaves the other heads of liability at common law untouched. The citation in that case from the judgment of Lord Denman CJ in Filliter v Phippard (supra) shows that in his opinion the common law was that a person in whose house a fire originated and which afterwards spread to his neighbour's house was responsible for the damage, and it was to that liability that the statute was directed.
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. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose a house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger.
Who, then, is a stranger? Clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his house to do work on it, and who does the work in a negligent manner.
It ought to be observed that his Lordship does not appear to have dealt with the question of the effect (if any) of the decision in Rylands v Fletcher (supra) upon the earlier cases. Whilst that case was referred to in argument it does not appear to have been argued that it affected the continued existence of a separate basis of absolute liability in the case of fire. Balfour v Barty–King (supra) goes back to the medieval rule but does not examine the development of the common law exemplified by Rylands v Fletcher (supra) nor consider whether such development had resulted in the earlier specific rule having been subsumed into wider principle.

It is appropriate to consider the various Australian authorities. In Hargrave v Goldman (1963) 110 CLR 40, Windeyer J said at p58:

"This Court has held that the old rules [of an occupier's liability for fire emanating from his premises] have been absorbed into the principle of Rylands v Fletcher (supra) and that the strict liability of the common law is subject to the qualifications of and exceptions to that principle: Bugge v Brown (1919) 26 CLR 110, at pp 114, 115; Hazelwood v Webber (1934) 52 CLR 268."

It is necessary to examine the two cases referred to by his Honour. If in fact they are authority for the proposition that the old rules have been absorbed into the principle of Rylands v Fletcher (supra), then the learned trial judge's conclusion finding the appellant liable upon the basis of strict liability separate to that based upon the rule in Rylands v Fletcher (supra) must be erroneous.

The respondent in Bugge v Brown (supra) was the owner of grazing land. He employed a servant to work on the land. As part of his remuneration, the servant was supplied with cooked meat. On one occasion the servant was supplied with raw meat for his mid–day meal and was instructed by the respondent to cook it at a certain house on the land. Contrary to those instructions, the servant lit a fire at another place on the land nearer to his place of work. By the negligence of the servant, the fire escaped and spread to the land of the appellant and did damage there. The majority of the court held that in the circumstances the lighting of the fire was within the scope of the servant's employment, and that notwithstanding that the servant had disobeyed the respondent's instructions as to the place where the fire should be lit, the respondent was liable for the consequences of his servant's negligence.

The appellant submitted that the respondent was liable upon each of three bases. Isaacs J, at p114, summarised those submissions as follows:

"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 (supra). 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. For this he relied on Filliter v Phippard (supra). Lastly, he relied on the admitted doctrine that at all events an employer is liable where his servant lights or keeps a fire negligently but within the course of his employment."

His Honour dealt with the first of those submissions briefly, at p115:

"The first proposition the Court ruled against during the argument. Whatever may have been anciently considered the true rule of the common law, the rigourous proposition so contended for cannot now be maintained."

The reported argument does not indicate the court's reasons for ruling against that argument nor does it dictate the court's view as to the way in which the ancient rule had been mitigated. However, I infer that the court was of the view that the ancient rule had been mitigated by the English statutes. His Honour held the respondent to be liable upon the basis of the third proposition advanced on behalf of the appellant, and therefore found it unnecessary to consider the second proposition. A consideration of his Honour's reasons for upholding the third basis of liability does not appear to support the proposition advanced by Windeyer J in Hargrave v Goldman (supra). However, some support for that proposition may be found in the judgment of Higgins J At p 130, his Honour said:
"The principle on which the Judicial Committee of the Privy Council has based the liability for damage by fire as between adjoining owners is that expressed in the maxim Sic utere tuo ut alienum non laedas (see Black v The Christchurch Finance Co (supra)). But for an Act, 14 Geo III c 78, sec 86, it would seem that ordinarily the law as to fire is the same as with regard to other dangerous things introduced on land, and that the owner of the land on which the fire starts is liable to his neighbour for the consequences of its escape. That Act, however, according to the decisions (Filliter v Phippard (supra)) limits the liability to cases of negligence; .... But the negligence may be on the part of employees, or even on the part of an independent contractor (Black v The Christchurch Finance Co (supra))."

The third member of the court, Gavan Duffy J, dissented and expressed his agreement with the reasons for judgment in the court below, [1918] VLR 413, where Irvine CJ determined the action by considering whether or not the servant had acted within the scope of his employment, and, having held that he did not so act, dismissed the action.

In Hazelwood v Webber (supra) the appellant had lit a fire on his land for the purpose of burning off stubble as an ordinary farming operation and using methods adopted by the majority of farmers in the district to burn their stubble. During the operation, a tree stump became ignited and smouldered for some five days, when a high wind caused the fire from the stump to spread to and damage the respondent's land. The joint judgment of Gavan Duffy CJ, Rich, Dixon and McTiernan JJ commences, at p274, with the following statement of principle:

"Apart from statute 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. This prima facie liability might be answered by more than one ground of excuse or exception. The special responsibility arising from the use of fire has come to be regarded as no more than an application of a wider general rule governing the liability of occupiers of property and, perhaps, others who introduce an agency from which harm may reasonably be expected unless an effective control of it is maintained. The grounds of excuse or exception have arisen in the development of this general rule rather than in connection with the ancient strict liability for the escape of fire. Their precise nature and limits appear not yet to be well understood."

At p277, their Honours said:

"The full enjoyment of the occupation of land according to the reasonable standards of behaviour prevailing in a community or locality is not possible without the occupier's making some use of things which, if there be a failure or removal of physical control or restraint upon their natural behaviour, will or probably will cause injury to neighbouring occupiers. The principle upon which a prima facie absolute liability appears to be imposed by the law is that no man should at the expense of his neighbour introduce upon his own land a potential source of harm which is considered to require continual and effective control or restraint to prevent mischief. If through a failure or relaxation of control damage to his neighbour occurs, although without negligence on his part, he should indemnify his neighbour. But when, to obtain effectual use and enjoyment of land in a reasonable manner according to its character and the uses for which it is adapted, occupiers find that the introduction of such a potential source of harm is generally necessary, to insist upon the prima facie rule would be to restrict the proper enjoyment of the land or to impose a special responsibility for loss arising from a danger to which by the recognized use of the land every occupier exposed himself and other occupiers. Accordingly, when the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way. The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. In his judgment in Bamford v Turnley (1860) 3 B & S 62, at p83; 122 ER 25, at p33, where the earliest expression of the ground of the qualification appears, Bramwell B spoke of the common and ordinary use of land as opposed to use in an exceptional manner. Lord Cairns in his speech in Rylands v Fletcher (1868) LR 3 HL, at pp338, 339, by which the generality of the qualification upon the rule was established, spoke of use 'in the ordinary course of the enjoyment of land' and of 'non–natural use.' Others have preferred the simple epithets 'extraordinary' or 'exceptional.' But in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v Lothian [1913] AC 263 at p280, Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from 'some special use bringing with it increased danger to other' and 'not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community'."

With respect, Windeyer J's view that Hazelwood v Webber (supra) was a case where the High Court held that the old medieval rules as to liability for the escape of fire had been absorbed into the principle of Rylands v Fletcher appears to be well founded. That appears to be the effect of the majority judgment. That judgment appears to reject the continued existence of a special category of liability arising out of the escape of fire as distinct from other dangerous things.

The learned trial judge correctly said that Hazelwood v Webber (supra) was decided upon the basis of Rylands v Fletcher (supra). He appears to have distinguished it for that reason. With respect, that overlooks the reasons for that case having been decided upon that basis, namely that any special responsibility arising from the use of fire was held to be no more than an application of the wider rule which their Honours then proceeded to apply. For that reason alone, I would conclude that the learned trial judge erred in holding that the ancient medieval rule applied in England in cases culminating in H & N EmanuelLtd v Greater London Council (supra) is a source of liability separate to the rule in Rylands v Fletcher (supra).

In any event, there are sound reasons of principle for not applying the rule so as to make occupiers of land liable for the incidental negligence of an independent contractor engaged in carrying out lawful works. The rule that in general a person engaging an independent contractor is not responsible for wrongs committed by such contractor was not established until Laugher v Pointer (1826) 5 B & C 547; 108 ER 204. Since then the law has developed further. There has been a divergence between the common law of England and the common law of Australia. The High Court has been inclined against strict liability in tort. As Wilson and Dawson JJ said in Stevens v Brodribb Sawmilling Co Pty Ltd (supra), after referring to the rejection by the House of Lords in Read v J Lyons & Co Limited [1947] AC 156 of any general doctrine of strict liability for hazardous activities, at p42:

"The direction taken in this Court has also been away from strict liability for tortious behaviour."

There are no sound policy reasons for maintaining a rule, having its origins in the social conditions of medieval England, in present day Australian society. I conclude that the law as expressed in H & N Emanuel Ltd v Greater London Council (supra) does not represent the law of this State. In this State, there is no separate liability based upon principles based upon Beaulieu v Finglam (supra). Any strict liability upon the part of the appellant is to be found in an application of the rule in Rylands v Fletcher (supra).

I have expressed the view that liability based upon what was said in Beaulieu v Finglam (supra) was not a form of vicarious liability. 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. Both sides argued this appeal upon the basis that the only issues for determination were whether the learned trial judge was right in concluding that the appellant was strictly liable upon the basis of Beaulieu v Finglam (supra) and that the appellant was not strictly liable upon the basis of Rylands v Fletcher (supra).

It becomes necessary to consider whether the learned trial judge was correct in holding that the appellant was not liable upon the basis of the principles laid down in Rylands v Fletcher (supra). The respondent has submitted that the learned trial judge was wrong in so holding. His Honour's reasons for judgment deal with this matter quite briefly, at p89, in the following way:

"However, in my opinion liability cannot be established against [the appellant] 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. That is to say, it is an ordinary and usual way of using property. It is not a 'special use, bringing with it increased danger to others' – 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, Fleming, The Law of Torts, 6th edn pp308–310; Prosser and Keeton on Torts, pp545 ff."

The approach of the learned trial judge appears to have been to consider whether or not welding operations carried out within a building on an industrial site constituted a natural user of such a site. That approach appears to have been limited to considering the intrinsic nature of the use without regard to the surrounding circumstances of that use. In approaching the question in that manner, I consider that he was in error. The relevant law is conveniently summarized by Zelling J in Smith v Badenoch [1970] SASR 9 at pp13–14, in the following terms:

"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 p471 the rule still awaits authoritative determination. Lord Macmillan in his speech in Read v J Lyons & Co Limited [1947] AC 156, at p174 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 pp486–487. 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 judgment 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).' 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 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."

The views expressed by Zelling J as to the matters to be taken into account in determining whether a particular user is a non–natural user appears to accord with the expressions of opinion to be found in Read v J Lyons & Co Ltd (supra), per Lord Porter at p176 and Torette House v Berkman (1940) 62 CLR 637, at pp654–655, per Dixon J (as he then was) where his Honour considered time, place and circumstances as relevant to the question of whether the use is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier.

The distinction between "natural" and "non–natural" user is not to be confused with the distinction between those things likely to do harm, if they escape, and those things not likely to cause harm in those circumstances. The questions of the categorisation of the user and the danger or otherwise of the object the subject of accumulation on the land by reason of that user each "make room for judicial discretion in applying or withholding strict liability" (Fleming, The Law of Torts, 7th ed at p313).

There can be no argument but that the fire upon the appellant's premises was likely 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 (supra). 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 [1947] 1 All ER 344 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 fireplace 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 (supra), saying, (at pp344–345):

"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). ...".

With respect, I do not consider those expressions to accord with principle. If it can be said that this case supports the view expressed by the learned trial judge then I do not consider that it ought to be followed.

The appellant also cited the judgment of Lawton J in British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959 as authority supporting the learned trial judge's conclusions. That case may readily be distinguished. Lawton J was determining a preliminary issue, namely whether upon the facts pleaded in the statement of claim the defendants were, in law, liable for the damage claimed. The report does not suggest that the statement of claim asserted any special circumstances whereby the particular use which, in normal safe circumstances might be considered to be a natural user, was attended by particular risks making the user "non–natural".

The learned trial judge made various findings of fact as to how the fire started and as to matters relevant thereto. None of those findings have been challenged. His Honour found upon the balance of probabilities that a product of welding carried out by an employee of WS was the cause of the fire. His Honour set forth the main consideration leading him to that conclusion as having been as follows:

"1Cartons of material which constituted in certain circumstances a combustible system were stacked not far from a point where overhead arc welding took place.
2In those circumstances, no adequate precautions were taken to prevent molten or very hot particles from the welding process reaching the stack.
3The welding took place at a time in relation to the commencement of the fire, and at a distance from the stack of cartons, such that it was at least reasonably possible for the cartons to be set alight by a product or products emitted by the welding process.
4The danger of fire being caused to combustible material by products of the welding process if any such material is within range is well recognised. Ordinary common sense and experience would indicate such danger. The danger is well recognised in the welding trade. A number of safety precautions are commonly prescribed for welding operations, and are taught to persons being trained in welding. Governmental authorities recognise the fire danger occasioned by welding.
...
5No alternative explanation for the fire has been seriously put forward, except perhaps Mr Goninon's welding operation at ground level. I have earlier dismissed this possibility.
6A fire occurred in fact, in the circumstances above mentioned, these circumstances being consistent with a reasonable possibility of it having been caused by the welding process. The improbability of any particular piece of slag or spatter or sparks, or any group of such material, causing such a fire, as shown by the experimental evidence, is substantially outweighed by the aggregation of relevant circumstances."

In the course of dealing with the case against negligence against WS, the learned trial judge made a number of findings, also relevant for present purposes, as follows:

"The sine qua non of the fire was that the employees of WS stored the cartons of Isolite in a place where on any view they should not have been stored in view of the work which was to be done, and allowed them to remain in that position while welding was carried out. That was an incidental use of the goods which was not reasonably foreseeable. The ways in which cardboard cartons of Isolite could be negligently stored, so as to be in danger of being set on fire, would be numerous and the manufacturer could not be expected to foresee them or advise means to circumvent them.
In addition, the goods were not, in my view, relevantly dangerous. The main seat of vulnerability to ignition in these cartons of Isolite lay in the cardboard cartons themselves. Isolite alone is not unusually or dangerously vulnerable to ignition. In all ordinary usage it is inert and safe. It needs a fire source which is both sustained and pursuing in order to be set alight. A burning cardboard carton in which the material is contained can provide such a source, and once ignited, the 'system' comprised of the material contained within the carton will unimpeded set up an intense and powerful fire."

The following matters of fact are also relevant:

(a)It was common ground at the trial that at the time of the fire there were two RSJ's mounted between portals 12 and 13 on the southern part of the eastern end of Stage 2, running east and west, parallel with the apex beam of the steel framing. Those RSJ's were suspended just above the top of the ceiling by two vertical steel beams welded to each end of the longitudinal pieces, and attached to the underside of the portal by a steel plate welded to each. Welded to the underside of each of the longitudinal pieces, towards the eastern end, were two steel cross channels, underneath which an FDC would have been suspended by steel rods attached to the cross pieces and passed through the ceiling.
(b)It was also common ground at the trial that an employee of WS carried out an arc welding operation (being the operation which the learned trial judge found to have been the cause of the fire) at the point where the connecting plate at the top of the vertical steel member holding up the western end of the northernmost of the two longitudinal steel beams was joined to the underside of portal 12.
(c)The learned trial judge found that some time prior to the occurrence of the welding operation, between 20 and 30 cartons of Isolite were placed in the roof void, just to the south of the RSJ's, forming a rectangular pile running east and west approximately ten feet wide and about 12 – 15 feet long, with the bottom layer on the edge and two top layers laid flat. The northern edge of the stack was about one foot or so south of the southern of the two RSJ's used to sling the FDC, there being room for a person to walk between the RSJ and the stack. His Honour accepted the witness's estimates of distance, size, appearance and location of the stack of cartons only as being very rough estimates.
(d)The learned trial judge concluded that for practical purposes, air movement within the roof void, at least up to the point when ignition occurred in the cartons of Isolite and the fire had been established, could not be treated in any specific way as being relevant to the issues to be determined.

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 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.

Plainly it is no answer to liability upon the basis of Rylands v Fletcher (supra) 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 (supra) as developed in the later cases.

I therefore conclude that whilst the learned trial judge erred in the basis upon which he found the appellant to be liable, nevertheless the appellant was liable upon a basis rejected by the learned trial judge. In the result, I would dismiss the appeal.