Negligence—Fire caused by lightning striking tree—Fire capable of being extinguished—Spread of fire to neighbouring lands—Duty of care—Existence—Standard of care—Breach. Fire—Liability for damage—Fire accidentally beginning—Negligent failure to extinguish or control—Fires Prevention (Metropolis) Act, 1774 (14 Geo. III. c. 78), s. 86.

Decision

June 13. LORD WILBERFORCE delivered the judgment of their Lordships as follows: -
This consolidated appeal from a decision of the High Court of Australia, reversing that of the Supreme Court of Western Australia, arises out of a bush fire, which developed in the grazing area of Gidgegannup, Western Australia, and did extensive damage to the respondents' properties. The High Court decided that the appellant, on whose property the fire started, was liable for the damage, and this decision the appellant now contests. (at p459)

2. The circumstances in which the fire started are concisely stated in the judgments of the High Court, which accepted the findings of the trial judge. There was an electrical storm on 25th February 1961, and a tall redgum tree, about one hundred feet in height, in the centre of the appellant's property, was struck by lightning. This tree was about two hundred and fifty yards from the western boundary of the appellant's property (in which direction the respondents' properties lie) and rather less from the eastern boundary. The redgum caught fire in a fork eighty-four feet from the ground and it was evidently impossible to deal with the blaze while the tree was standing. Early in the morning of 26th February, the appellant telephoned the district fire control officer, appointed as such under the Bush Fires Act, 1954-1958 (W.A.), and asked for a tree feller to be sent. Pending his arrival the appellant cleared a space round the tree of combustible material and sprayed the surrounding area with water. (at p459)

3. The tree feller arrived at midday on 26th February, at which time the tree was burning fiercely, and it was cut down. The trial judge found, and the High Court accepted the finding, that up to this point the appellant's conduct in relation to the fire was not open to criticism. (at p459)

4. But the judge also found that if the appellant had taken reasonable care he could, on the Sunday evening (26th February), or at latest early on the next morning, have put out the fire by using water on it. The appellant indeed claimed that he spent two hours on Monday, 27th February, in extinguishing the fire, but his evidence as to this was rejected. The judge referred to evidence which indicated that the appellant's method of extinguishing a fire of this kind was to burn it out. "You burn it out" he was reported as saying "that is the only way I know to put a fire out." (at p460)

5. On Tuesday 28th February, the appellant was away…

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 Goldman v Hargrave

Details

AGLC: Goldman v Hargrave [1966] HCA 42
Case: [1966] HCA 42
Decision Date: 13 June 1966

CaseChat Overview and Summary

The case of *Goldman v Hargrave* concerned a dispute between a landowner, Mr Hargrave, and a neighbouring landowner, Mr Goldman. Mr Hargrave had employed contractors to clear a large area of bushland on his property. During the clearing process, the contractors used fire, which spread to Mr Goldman's property and caused damage. Mr Goldman sought to recover damages for the loss he suffered as a result of the fire. The case was heard by the Privy Council on appeal from the Supreme Court of Victoria.

The central legal issue before the Privy Council was whether Mr Hargrave was vicariously liable for the damage caused by the fire, notwithstanding that the work was carried out by independent contractors. Specifically, the court had to determine whether the work undertaken by the contractors was of such a nature that it cast on the employer a duty to take precautions against the risk of damage, and whether this duty was non-delegable.

The Privy Council held that Mr Hargrave was liable for the damage caused by the fire. Their Lordships reasoned that the work of clearing bushland by fire was inherently dangerous, and therefore, Mr Hargrave owed a non-delegable duty to his neighbour to ensure that reasonable precautions were taken to prevent the fire from spreading. The court distinguished between the employment of independent contractors for work that is not inherently dangerous, where the employer is generally not liable for their negligence, and the employment of contractors for work that carries a special danger, where the employer retains a personal duty to ensure that the danger is avoided. In this instance, the risk of fire spreading was a special danger inherent in the work, and Mr Hargrave could not escape liability by delegating the task to contractors.

The Privy Council affirmed the decision of the Supreme Court of Victoria, finding Mr Hargrave liable for the damage caused to Mr Goldman's property.

Orders