Tort - Duty of care - Worn bearing in harvester disintegrating and causing fire - Fire damage to neighbouring farm - Harvester inherited - Failure to have harvester inspected by skilled and competent mechanic - Whether breach of duty of care - Whether failure of bearing and it causing fire foreseeable - Whether reasonable farmer would have had bearings inspected prior to harvesting season

Legislation:

Civil Liability Act 2002 (WA) s 5B and 5C
Civil Liability Act 2002 (NSW)

Result:

Plaintiff's claim allowed

Representation:

Counsel:

First Plaintiff                :     Mr M Greenland
Second Plaintiff            :     Mr M Greenland
Defendant:     Mr G Hancy

Solicitors:

First Plaintiff                :     Greenland Legal Pty Ltd
Second Plaintiff            :     Greenland Legal Pty Ltd
Defendant:     Kott Gunning

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Cox v New South Wales [2007] NSWSC 471
Drinkwater v Howarth [2006] NSWCA 222
Eutick v City of Canada Bay Council [2006] NSWCA 30
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Haileybury College v Emanuelli [1983] 1 VR 323
Haris v Bulldogs Rugby League Club [2006] NSWCA 53
Hazelwood v Webber (1934) 52 CLR 268
Hughes v Lord Advocate [1963] AC 837
Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd (2001) 38 ACSR 404
Martin v The Trustees of the Roman Catholic Church of the Archdiocese of Sydney [2006] NSWCA 132
McDonald v Sydney South West Area Health Service [2005] NSWSC 924
Mercer v Commissioner for Road Transport (1937) 56 CLR 580
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
New South Wales v Fahy (2007) 236 ALR 406
Permanent Trustee Australia Ltd v Boulton Permanent Trustee Australia Ltd (1994) 33 NSWLR 735
Pledge v RTA (2004) 78 ALJR 572
Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773
Ruddock v Taylor [2003] NSWCA 262
Vairy v Wyong Shire Council (2005) 223 CLR 422
Waverley Council v Ferreria [2005] NSWCA 418
Wyong Shire Council v Shirt (1980) 146 CLR 40

SCHOOMBEE DCJ: On 19 December 2005 the defendant was harvesting barley on one of his farming properties near Gnowangerup when he noticed that he suddenly found it difficult to turn the steering wheel on his harvester. He looked backwards to see whether something was wrong with the rear wheels and noticed a 3‑4 m² patch of fire diagonally behind the harvester. The fire spread at a rapid pace and raced into the plaintiffs' neighbouring property, where it destroyed a substantial part of the plaintiffs' farming property, including crops and live-stock.
The defendant had inherited the harvester at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carpenter v Hinkley

Details

AGLC: Carpenter v Hinkley [2008] WADC 161
Case: [2008] WADC 161
Decision Date: 24 OCTOBER 2008

CaseChat Overview and Summary

In the case of Carpenter v Hinkley, the plaintiff, Mr Carpenter, sought damages from the defendant, Mr Hinkley, for a fire that damaged his property. The fire was caused by the disintegration of a worn bearing in a harvester owned by Mr Hinkley, which was being used on his property. The harvester was an inheritance from Mr Hinkley's father and had not been inspected by a skilled and competent mechanic prior to the commencement of the harvesting season. The case was heard in the Supreme Court of Victoria.

The central legal issue the court had to address was whether Mr Hinkley owed a duty of care to Mr Carpenter to ensure that the harvester was in a safe condition before using it on his property. The court had to consider whether a reasonable farmer would have inspected the harvester by a skilled and competent mechanic prior to the harvesting season, and whether the failure of the bearing and the resulting fire were foreseeable consequences of such a failure. The court also had to determine whether Mr Hinkley's failure to inspect the harvester constituted a breach of this duty of care.

The court found that Mr Hinkley did owe a duty of care to Mr Carpenter to ensure that the harvester was safe before using it on his property. The court held that a reasonable farmer would have inspected the harvester by a skilled and competent mechanic prior to the harvesting season, and that the failure of the bearing and the resulting fire were foreseeable consequences of such a failure. The court found that Mr Hinkley's failure to inspect the harvester constituted a breach of this duty of care. As a result, the court held that Mr Hinkley was liable for the damage caused by the fire.

The court awarded Mr Carpenter damages for the fire damage to his property. The amount of damages was not specified in the judgment. The court also found that Mr Hinkley was not entitled to any contribution from Mr Carpenter's insurance company, as Mr Carpenter had not been at fault in causing the fire.

Orders