Negligence—Nuisance—Rule in Rylands v. Fletcher—Fire caused by lightning striking tree—Fire not adopted or continued by occupier of land—Fire capable of being extinguished by exercise of reasonable care—Failure of occupier to extinguish—Statutory duty to extinguish fire—Breach—No civil right of action created—Bush Fires Act, 1954-1958 (W.A.), s. 28 (1) (a).*
Decisions
November 22. The following written judgments were delivered:- TAYLOR AND OWEN JJ. This is an appeal by two parties in a consolidated action from an order of the Supreme Court by which the claim of the appellants in respect of fire damage to their property was dismissed: Hargrave v. Goldman (1963) WAR 102 . The facts are that the respondent was the owner and occupier of a lightly developed grazing property, some six hundred acres in extent, near Gidgegannup in Western Australia. On Saturday 25th February 1961 there was an electrical storm in this area and a tall tree with a branchy-top, which stood about the centre of the respondent's property and relatively close to his dwelling, was struck by lightning between 5 p.m. and 6 p.m. It was observed shortly afterwards that a fork of the tree, more than eighty feet above the ground, was on fire. The tree was about two hundred and fifty yards from the western boundary of the respondent's property and a somewhat lesser distance from the eastern boundary. On either side the paddocks were sparsely timbered but they contained a quantity of dry grass and dead tree tops. It was impossible for the respondent to extinguish the fire whilst the tree was standing and early on the following morning he telephoned the fire control officer for the district - a local farmer appointed pursuant to the Bush Fires Act, 1954-1958 (W.A.) - and asked that a "tree faller" be sent out to cut the tree down. This was done about midday but, in the meantime, the respondent had by means of a tractor and dozer blade cleared the area in the vicinity of the tree of all readily combustible material. In addition, he used a mounted six hundred gallon tank of water to spray the surrounding area so as to minimize the risk of the fire escaping. (at p47)
2. When Coombes, the tree faller, arrived the tree was burning fiercely in the fork and the bark from the ground up was on fire. The fire near the base of the tree was damped out and the tree was cut down. It is unnecessary to elaborate the details of what then happened for the learned trial judge found - and his finding was not challenged - that up to this point the respondent's conduct in relation to the fire was not open to question. But his Honour also found that if the respondent had exercised reasonable care he could, on the Sunday evening or on the following morning, have put out the fire by 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.
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AGLC
Hargrave v Goldman [1963] HCA 56
Case
[1963] HCA 56
Decision Date
CaseChat Overview and Summary
The case of *Hargrave v Goldman* concerned a dispute between the plaintiff, Hargrave, and the defendant, Goldman. The plaintiff sought damages for injuries sustained when a motor vehicle driven by the defendant collided with the plaintiff's vehicle. The matter was heard before the High Court of Australia.
The central legal issues before the High Court were whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty had been breached, thereby causing the plaintiff's injuries. The court was required to consider the principles of negligence in the context of road traffic accidents and the standard of care expected of a reasonable driver.
The High Court ultimately found that the defendant had been negligent in the operation of his vehicle. The court applied the established principles of negligence, holding that the defendant had failed to exercise the degree of care that a reasonable and prudent driver would have exercised in the circumstances. This failure to meet the required standard of care was found to be the direct cause of the collision and the plaintiff's subsequent injuries. The court affirmed that a driver owes a duty to other road users to drive with reasonable care and skill.