Hazelwood v Webber

[1934] HCA 62

52 CLR 268

HAZELWOOD WEBBER Fire-Damage caused by escape-Fire lit to burn stubble-Senouldering stump-

Damage to neighbour's land-Careless Use of Fire Act 1912 (N.S.W.) (No. 28 of 1912), secs. 2, 5, 9*-Bush Fires Act 1930 (N.S.W.) (No. 14 of 1930)-Fires SYDNEY,

Prevention (Metropolis) Act 1774 (14 Geo. III. c. 78). Nov. 15, 16, 19; Dec. 19.

The appellant lit a fire on his land on 15th February 1933, for the purpose of burning off stubble. The stubble was burnt off as an ordinary farming opera- tion, and in the way in which the majority of farmers in the district burn their stubble. During the operation a tree stump became ignited and smouldered until 20th February, when a high wind caused the fire from the stump to spread to and damage the respondent's land.

Held (1) that the burning of vegetation in the open in midsummer is not a natural or ordinary user of the land and therefore the appellant was liable inde- pendently of negligence for the consequences of the escape of the fire; (2) that *The Careless Use of Fire Act 1912

(the grass being in an inflammable con- (N.S.W.), as amended by the Bush

dition), or within twenty-five yards of Fires Act 1930 (N.S.W.), provides, by

felled timber awaiting a running fire sec. 2 :---" Whosoever ignites or uses or

whereby the property of any other carries when ignited any inflammable

person is endangered, injured, or material within one hundred yards of

destroyed, shall for every such offence any stacks of corn, pulse, or hay or

be liable for a penalty not exceeding standing crops in an inflammable con-

fifty pounds or to be imprisoned with dition, or within ten yards of any grow-

or without hard labour for any period ing crops, stubble-field, or grass land

not exceeding three months." By sec.

52 CLR 269

the Careless Use of Fire Act 1912 (N.S.W.), and the Bush Fires Act 1930 (N.S.W.) do not limit the liability under the common law except SO far as they authorize the use of fire, and even in cases of authorized use liability is maintained if damage or injury is occasioned by the reckless or negligent use of fire.

Per Gavan Duffy C.J., Rich, Dixon and McTiernan JJ. The Fires Prevention (Metropolis) Act 1774 is not now in force in New South Wales.

Reid v. Fitzgerald, (1926) 48 W.N. (N.S.W.) 25, approved. Decision of the Supreme Court of New South Wales (Full Court): Webber Hazelwood, (1934) 34 S.R. (N.S.W.) 155 51 W.N. (N.S.W.) 53, affirmed.

APPEAL from the Supreme Court of New South Wales.

On 15th February 1933, Henry James Hazelwood, farmer, a member and formerly President of the Urana Pastures Protection Board, lit or consented to the lighting of a fire upon certain land, owned by him, at Urangeline, New South Wales, for the purpose of burning off about one hundred acres of stubble. The stubble was burnt off, but the fire lighted some tree stumps which smouldered for some time, and on 20th February sparks were blown, in a high wind, from one of these stumps on to adjoining land owned by Frederick John Webber, where it set fire to his grass, buildings and fences and did considerable damage. In an action brought by him in the Supreme Court of New South Wales, Webber claimed the sum of £1,500 from Hazelwood as damages for loss said to have been sustained by him through the careless, negligent and improper manner in which the fire had been lighted by Hazelwood and his servants, and the want of due and proper caution on their part which 3 Whosoever leaves, whether tem-

sixty-six feet in breadth, and after he porarily or otherwise, any fire which he

has given to the occupiers of all land has lighted or used in the open air before

contiguous to the land from or on the same is thoroughly extinguished

which the straw, stubble, grass, or shall, for every such offence, be liable

herbage is intended to be burnt, or to a penalty not exceeding fifty pounds or to be imprisoned for any period not

to be ignited, notice in writing at least exceeding six months." By sec. 4

twenty-four hours before burning or Notwithstanding anything in the

igniting as aforesaid of the time at next two preceding sections-(a) the occupier of any land may burn any

ignite (b) the occupier of any grass straw, stubble, grass or herbage, or

lands may between five o'clock in the ignite any wood or other inflammable material on such land after he has

noon, burn off any grass or herbage cleared of inflammable substance a

from any such land in his occupation space of land around the straw, stubble,

after giving the like notice in writing grass, or herbage intended to be burnt, or wood or other inflammable material

so to do to the occupiers of all land intended to be ignited, of not less than

contiguous to the land from which the

52 CLR 270

had allowed the fire to escape and extend to Webber's land The evidence established that the burning-off of stubble was an ordinary farming operation, and was a method used by seventy per cent of the farmers in the district in which the lands of the plaintiff and of the defendant were situate. It was also shown that as February is a summer month, the grass is then usually very dry and inflammable. A question put by the trial Judge to the jury as to whether there was any negligence on the part of the defendant or his servants was answered in the negative. The damage sustained by the plaintiff was assessed at £569. A verdict was thereupon entered for the defendant.

Upon an appeal by the plaintiff to the Full Court of the Supreme Court this verdict was set aside, and a verdict in the sum of £569 was entered for the plaintiff Webber v. Hazelwood 1,

From this decision the defendant now appealed to the High Court. E. M. Mitchell K.C. (with him Stuckey), for the appellant. The evidence shows that in addition to the burning-off of the stubble being in accordance with local custom it was also a necessary measure for the proper cultivation of the land. Liability for accidental fires was not part of the law of England at the time of the settlement of New South Wales therefore it was not at any time the law of this country. The intention of the Legislature as expressed in the statutes which followed the Imperial Fires Prevention (Metropolis) Act 1774, namely the Careless Use of Fire Act 1866, the Careless Use of Fire Act 1912, and the Bush Fires Act 1930, was that liability for damage from fires lit in the open depended in the civil Courts

negligence or recklessness. The burning-off of the stubble grass or herbage is intended to be

owner or occupier SO neglecting or burned." By sec. 5 :---" (1) If the

omitting to clear shall at his own occupier of any land clears the same of

costs and charges cause such fence to be inflammable materials for the space of

repaired and re-erected twenty feet from any fence dividing

sec. 9 Nothing in this Act con- such land from the land of any other

tained shall take away or interfere with owner or occupier, and such other

the right of any person to sue for and owner or occupier neglects or omits SO

recover, at common law or otherwise, to clear his land, and any damage from

compensation for or in respect of any fire happens to such dividing fence

damage or injury occasioned by the through such neglect or omission, the

reckless or negligent use of fire."

1(1934) 34 S.R. (N.S.W.) 155; 51 W.N. (N.S.W.) 53. 52 CLR 271

an ordinary and reasonable use of the land; therefore the matter is within the exceptions from the rule enunciated in Rylands V. Fletcher 1, as formulated in Rickards v. Lothian 2. There is not any English case which extends the rule in Rylands v. Fletcher (1) to fires used for the ordinary purposes of husbandry. That rule was not referred to in any of the judgments of the Court in McInnes V. Wardle 3.

[RICH J. referred to Whinfield v. Lands Purchase &Management Board of Victoria and State Rivers &Water Supply Commission of Victoria 4.]

That was a negligence case where it was held that liability does not attach for damage resulting from a natural and ordinary use of the land.

[STARKE J. referred to Pett v. Sims Paving and Road Construction Co. 5.]

The matter was also dealt with on the basis of negligence in Whitfield v. Turner 6. The jury negatived negligence. Burning-off is advocated by government departments in the course of administer- ing the Pastures Protection Act 1912 (N.S.W.), the Prickly Pear Act 1924 (N.S.W.) and other statutes, for the purpose of eradicating various diseases from the land. The onus is upon the respondent to prove the burning-off was neither a natural use nor an ordinary use of the land (Pett v. Sims Paving and Road Construction Co. 7 ). The relevant statutes of New South Wales provide a special rule in respect to fire, and in that way differentiate the position from anything which exists in England. Absolute liability does not arise in respect to a fire employed as an incident of essential farming operations.

[DIXON J. referred to Turberville v. Stampe 8.] It was decided in that case that as regards domestic fires there is an unlimited liability, and a limited liability only as regards fires occasioned in the course of farming operations. The history of the law on this topic is traced in Beven on Negligence, 4th ed. (1928), vol. 1., pp. 618 et seq. A person who exercises reasonable precaution in

1(1868) L.R. 3 H.L. 330. 2(1913) A.C. 263 16 C.L.R. 387. 3(1931) 45 C.L.R. 548. 4(1914) 18 C.L.R. 606. E.R. 1072; 12 Mod. Rep. 152 ; 88 5(1928) V.L.R. 247. 6(1920) 28 C.L.R. 97. 7(1928) V.L.R., at pp. 256, 257. 8(1697) 1 Ld. Raym. 264 91 52 CLR 272

and about the lighting of a fire upon his land is not liable for damage done to a neighbour's property (Black v. Christchurch Finance Co. 1; Hughes v. Percival 2; McInnes v. Wardle 3 ). The WEBBER. decision in Black's Case 4 was analyzed in Pett v. Sims Paving

and Road Construction Co. 5 where it was decided that liability in respect to the burning-off of land used for agricultural pursuits rests on the basis of negligence and not upon the basis of the rule in Rylands v. Fletcher 6. The burning-off was not a special use of the land and did not bring increased danger to others the method employed was reasonable, and has become a necessary incident of farming operations (Rickards v. Lothian 7 ), especially in the district where the land is situate (Madras Railway Co. v. The Zemindar of Carvatenagarum 8 ). Sheehan v. Park 9 was decided prior to Rickards v. Lothian 10, and therefore cannot now be regarded as a concluding authority on the matter see also Salmond on Torts, 7th ed. (1928), pp. 344 et seq. The principle of absolute liability for damage arising from fire, irrespective of negligence or otherwise, was discarded in Bugge v. Brown 11.

[STARKE J. referred to Jones v. Festiniog Railway Co. 12.] The question has been dealt with by the Courts in South Africa and Canada respectively (Eastern and South African Telegraph Co. V. Cape Town Tramways Cos. 13; Goch v. Youschak 14 ).

[STARKE J. referred to Cyclopedia of Law and Procedure (1908), vol. 29, p. 460.]

An occupier is not liable for fire caused through the use of his land in the ordinary way (Rickards v. Lothian 15 ). Whether the land was used in an ordinary way is a matter dependent on the circumstances of each particular case, and is a matter for the jury (Whinfield v. Lands Purchase &Management Board of Victoria and State Rivers &Water Supply Commission of Victoria 16 )

1(1894) A.C. 48, at pp. 53, 54. 2(1883) 8 App. Cas. 443, 3(1931) 45 C.L.R., at pp. 550 4(1894) A.C. 48. 5(1928) V.L.R., at p. 258. 6(1868) L.R. 3 H.L. 330. 7(1913) A.C., at pp. 279 et seq. 8(1874) 30 L.T. 770. 9(1882) 8 V.L.R. 25. 10(1913) A.C. 263 ; 16 C.L.R. 387. 11(1919) 26 C.L.R. 110. 12(1868) L.R. 3 Q.B. 733. 13(1902) A.C. 381. 14(1924) 4 D.L.R. 508. 15(1913) A.C. 263. 16(1914) 18 C.L.R. 606. 52 CLR 273

The onus of proving in any particular case that the land was not used in an ordinary way is on the plaintiff or party complaining (Pett V. Sims Paving and Road Construction Co. 1 ).

Roper (with him Clancy), for the respondent. The Fires Prevention (Metropolis) Act 1774, is not in force in New South Wales the relevant section of that Act, sec. 86, was re-enacted in the same terms in the Sydney Buildings Act 1837, which was subsequently repealed (Reid v. Fitzgerald 2 ). In any event those statutory provisions do not apply to fires produced intentionally or by negli- gence as here, but are limited to fires accidentally " started (Filliter V. Phippard 3 ). The provisions of sec. 4 of the Careless Use of Fire Act 1912 are not applicable to this case. It was not the intention of the Legislature, as expressed in that Act, to restrict the civil consequences which would flow from the use of fire in any circumstances. Under the common law in its original form a person was absolutely liable in respect of a fire which escaped from his land and did damage to his neighbour's land, unless he could show that its escape was due to an act of God or an act of a third party (Turberville v. Stampe 4 Jones v. Festiniog Railway Co. 5 ). That absolute liability has been modified only to the extent shown in Whinfield v. Lands Purchase &Management Board of Victoria and State Rivers &Water Supply Commission of Victoria 6 and Bugge v. Brown 7. Liability under the rule in Rylands V. Fletcher 8 still exists (Musgrove v. Pandelis 9; Clerk and Lindsell on Torts, 8th ed. (1929), pp. 385-412). The starting of the fire by the appellant was a contravention of the provisions of sec. 2 of the Careless Use of Fire Act 1912; he is liable for whatever conse- quences flow from that unlawful act. Fire is inherently dangerous (Whinfield v. Lands Purchase &Management Board of Victoria and State Rivers &Water Supply Commission of Victoria (6) ).

A higher standard of duty and liability is imposed upon an occu- pier who uses something which is inherently dangerous. Whether a particular thing is dangerous or not is a question of law. The

1(1928) V.L.R. 247. 2(1926) 48 W.N. (N.S.W.) 25. 3(1847) 11 Q.B. 347, at p. 358 4(1697) 1 Ld. Raym. 264 ; 91 5(1868) L.R. 3 Q.B. 733. 6(1914) 18 C.L.R. 606. 7(1919) 26 C.L.R. 110. 116 E.R. 506, at p. 510. 8(1868) L.R. 3 H.L. 330. 9(1919) 2 K.B. 43. E.R. 1072; Comb. 459; 90 E.R. 590. 52 CLR 274

OF burning-off, especially over SO large an area, was not an ordinary

and natural use of the land, nor was it a necessary operation. The

HAZELWOOD evidence does not show that there was any disease in either the

land or the crops. "Natural user" is a question which should be determined by the Court.

[DIXON J. referred to St. Anne's Well Brewery Co. v. Roberts 1. Assuming, without admitting, that the question was one for the jury, the onus was upon the appellant to show that the burning-off was a natural and ordinary user of the land; there was not any onus upon the respondent (West v. Bristol Tramways Co. 2 ) The provisions of the Pastures Protection Act 1912, and the Prickly Pear Act 1924, referred to, only serve to show that the use of fire is a non-natural user of the land.

E. M. Mitchell K.C., in reply. The cause of action in West V. Bristol Tramways Co. 3 was framed in nuisance; the question of negligence did not arise in that case, but here it was the only question put to the jury. Moreover West's Case (3) does not deal with the ordinary use and occupation of the land. The decision in Musgrove V. Pandelis 4 conflicts with the decision of the Privy Council in Rickards v. Lothian 5, and should not be followed by this Court. The decision in Job Edwards Ltd. v. Birmingham Navigations 6 was based upon negligence or no negligence. Jones v. Festiniog Railway Co. 7 is distinguishable the damage there complained of did not arise from an ordinary and natural use of the land, as here. What constitutes a natural use of land is shown in Beven on Negligence, 4th ed. (1928), vol. I., pp. 608, 609; see also Smith V. Fletcher 8.

Cur. adv. vult. The following written judgments were delivered :-

GAVAN DUFFY C.J., RICH, DIXON AND McTIERNAN JJ. 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

1(1928) 140 L.T. 1. 2(1908) 2 K.B. 14, at p. 24. 3(1908) 2 K.B. 14. 4(1919) 2 K.B. 43. 5(1913) A.C. 263 : 16 C.L.R. 387. 6(1924) ] K.B. 341. 7(1868) L.R. 3 Q.B. 733. 8(1874) L.R. 9 Ex. 64, at p. 67. 52 CLR 275

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 HAZELWOOD 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. In the present case, we are concerned with one only of these grounds. The fire, which travelled from the defendant's land to the plaintiff's, was lit by the defendant for the purpose of burning off stubble, a thing beneficial to the land which many farmers do. The use of fire for such a purpose is said by the defendant to be a recognized incident of the proper enjoyment of the land which, he claims, falls outside the application of the prima facie rule of absolute liability. The question whether this claim is well founded is that upon which the decision of the case must turn unless the common law has been superseded by statute. But, on behalf of the defendant, it is contended that in fact statute has abrogated or modified the common law rule in New South Wales. We do not think that this contention is correct. Sec. 86 of the Fires Prevention (Metropolis) Act 1774 (14 Geo. III. C. 78) was, we think, part of the law which, under 9 Geo. IV. C. 83, was originally in force in New South Wales. Its provisions, notwithstanding that the statute in which it occurs related to London, have been held of general application (Richards v. Easto 1 ). It soon ceased, however, to be the formal expression of the law in New South Wales. Its provisions were transcribed in sec. 74 of the local statute of 8 William IV. No. 6, called the Sydney Buildings Act 1837. This section should, in our opinion, also be construed as of general applica- tion. The repetition of the section by the colonial legislation operated as an implied repeal of the British enactment SO far as it applied to New South Wales. But, in its turn, the statute of 1837 was repealed. The repeal was effected by the City of Sydney

1(1846) 15 M. &W. 244 ; 153 E.R. 840. 52 CLR 276

OF Improvement Act 1879 (42 Vict. No. 25). In Reid v. Fitzgerald

1, Harvey, C.J. in Eq., held that another section of 14 Geo. III.

HAZELWOOD C. 78, viz., sec. 83, was not in force because it had been exactly

reproduced by sec. 71 of 8 William IV. No. 6 which should be held, like its prototype, to be of general application. He said 2: In my opinion the repeal of that Act would not have the effect of J. reviving the old Imperial enactment, even assuming it was at one

time in force by reason of 9 Geo. IV. c. 83." It appears to be correct that the repeal would not revive the Imperial provision which the repealed statute had, in its application to New South Wales, previously repealed. For sec. 4 of the Acts Shortening Act (22 Vict. No. 12), uses the term "enactment," a term apt to include Acts of the British Parliament in force by virtue of 9 Geo. IV. c. 83. The Act of 1774 may, therefore, be regarded as not in force in New South Wales.

By the Careless Use of Fire Act 1866 (29 Vict. No. 21), lighting fires in the open was regulated under penal sanctions. Sec. 6 of the Act provided that nothing contained in the Act should interfere with the right of any person to recover at common law or otherwise compensation for damage occasioned by the reckless or negligent use of fire. This provision is repeated in the Careless Use of Fire Act 1912 (No. 28) which, together with the Bush Fires Act 1930 (No. 14), states when the lighting of fires in the open is allowable and when penal. An argument was advanced that, upon a proper consideration of this legislation it should be understood as an exhaus- tive statement of the civil as well as the criminal liability involved by the use of fire in the open, and that the civil liability was limited to its reckless or negligent use. We are unable to agree in this reading of the Act. We think that it was intended to justify civilly the use of fire in the manner and on the occasions prescribed by secs. 4 and 5 of the Careless Use of Fire Act 1912, subject to a condition that there should be no carelessness or recklessness, but otherwise to leave the law of civil liability unaltered.

The case, therefore, turns upon the question whether the use of the fire made by the defendant was such as to fall outside the strict liability independent of negligence and expose him to civil liability

1(1926) 48 W.N. (N.S.W.) 25. 2(1926) 48 W.N. (N.S.W.), at p. 26. 52 CLR 277

only on the ground of negligence which the jury's verdict has negatived. 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 1, 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 2, 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

1(1860) 3 B. &S. 62, at p. 83 ; 122 2(1868) L.R. 3 H.L., at pp. 338, E.R. 25, at p. 33. 52 CLR 278

"non-natural" use." Others have preferred the simple epithets "extraordinary" or "exceptional." But in the decision which

HAZELWOOD finally confirmed the general application of this exclusion of absolute

responsibility, namely, Rickards v. Lothian 1, 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 J. 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." Now in applying this doctrine to the use of fire in the course of agriculture, the benefit obtained by the farmer who succeeds in using it with safety to himself and the frequency of its use by other farmers are not the only considerations. The degree of hazard to others involved in its use, the extensiveness of the damage it is likely to do and the difficulty of actually controlling it are even more important factors. These depend upon climate, the character of the country and the natural conditions. The question is not one to be decided by a jury on each occasion as a question of fact. The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts should be considered SO fraught with risk to others as not to be reasonably incident to its proper enjoyment. In Australia and New Zealand, burning vegetation in the open in midsummer has never been held a natural use of land. That it should be SO con- sidered does not appear to have occurred to the Supreme Court of Victoria. "If a person choose to bring fire into an arid place, he does SO at his own risk, and the question whether he was guilty or not guilty of negligence as to the fire spreading does not arise (per Stawell C.J., Sheehan v. Park 2 ). Nor to that of New 'It is admitted that

the law in New Zealand is that if a person lights a fire on his own land he must at his peril prevent its spreading to the land of his neighbours" (per Williams J., Kelly V. Hayes 3 ). In Canada the view taken in the Western Provinces has been the same: see Goch v. Youschak 4, although in Upper Canada a contrary doctrine was adopted as early as 1846 (Dean v. McCarty 5 ); see the judgment of Patterson J. in Furlong v. Carroll 6.

1(1913) A.C. 263, at p. 280. 2(1882) 8 V.L.R. (L.), at p. 28. 3(1902) 22 N.Z.L.R. 429, at p. 433. 4(1924) 4 D.L.R., at p. 513. 5(1846) 2 W.C.R. 448. 6(1882) 7 Ont. App. 145, at p. 161. 52 CLR 279

Nothing which was said by the Privy Council in Black v. Christchurch Finance Co. 1 supports the view that burning vegetation in such countries as New Zealand and Australia is anything but an extra- HAZELWOOD ordinary or special use of land involving exceptional danger to others. Indeed, Lord Shand said 2 :- 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)."

In our opinion the operation of burning stubble exposed the appellant to liability independently of negligence for the consequences of the escape of the fire.

We think the appeal should be dismissed.

STARKE J. The respondent brought an action against the appellant, for that the appellant lighted and kept a fire on his land in such a negligent and improper manner that it escaped and extended into the lands of the respondent, whereby the respondent sustained considerable damage. On the 15th February 1933 the appellant, who is a farmer, lit or consented to the lighting of a fire upon his land, for the purpose of burning off 100 acres of stubble. The stubble was burnt off, but the fire lighted some stumps, which smouldered for some time, and on the 20th February-as the argument before this Court conceded-sparks were blown, in a high wind, from one of these stumps on to the land of the respondent, and set fire to his grass, buildings and fences, and did considerable damage. The evidence established that burning off stubble is an ordinary farming operation, and was a method used by sixty or seventy per cent of the farmers in the district in which the appellant and the respondent had their lands. But it must be observed that February is a summer month, and the grass is then, usually, very dry and inflammable. The action was tried before a jury, which specifically found, in answer to a question put by the learned trial Judge, that the appellant was not guilty of any negligence which caused damage to the plaintiff. A verdict was thereupon entered for the appellant. Upon motion,

1(1894) A.C. 48. 2(1894) A.C., at p. 54. 52 CLR 280

however, to the Supreme Court of New South Wales to set aside this verdict, or for a new trial, the verdict was set aside and judgment was entered for the respondent for damages £569, which, as the jury found, the respondent had sustained by reason of the fire. An appeal is brought to this Court from that judgment.

The use of fire involved at common law the strictest responsibility, and decisions in modern times have brought that responsibility into line with what Blackburn J. 1 called the general rule of common law

given in Fletcher v. Rylands' 2 (Filliter V. Phippard 3 Fletcher v. Rylands (2) Jones v. Festiniog Railway Co. 4; Black v. Christchurch Finance Co. 5 ); when a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril and is liable for the consequences if it escapes and does injury to his neighbour" (1). Exceptions from this liability have been recognized, and the critical question is whether the appellant has established that the present case is within any such exception.

One contention was that the statute law of New South Wales had established the rule that liability for damage by fire now depended upon want of reasonable care and prudence in the use of fire, or in other words, upon negligence. It is unnecessary to go through all the legislation referred to by the learned counsel who argued the case for the appellant, because the argument in the end rests upon the Careless Use of Fire Act 1912, (No. 28) and the Bush Fires Act 1930 (No. 14). But those Acts do not limit the common law liability except in SO far as they authorize the use of fire ( (1912) No. 28, secs. 4 and 5), and even in those cases liability is maintained if damage or injury is occasioned by the reckless or negligent use of fire (Act 1912 (No. 28), sec. 9). It was conceded that the appellant could not bring himself within the terms of any authority to use fire given by those Acts.

The other ground of exception suggested from the rule of absolute liability was that the appellant's was an ordinary use of his land, or such a use as was proper for the general benefit of the community

1(1868) L.R. 3 Q.B., at p. 736. 2(1868) L.R. 1 Ex. 265 L.R. 3 3(1847) 11 Q.B. 347 116 E.R. 4(1868) L.R. 3 Q.B. 733. 5(1894) A.C. 48. 52 CLR 281

(Rickards v. Lothian 1 Madras Railway Co. v. The Zemindar of Carvatenagarum 2 ). The limits of this exception have never been very clearly defined. A man is entitled to the reasonable enjoyment of his land; he may build upon it, and in modern times it is but a reasonable enjoyment of his rights in respect of his land that his buildings should be equipped with fireplaces or apparatus for heating his premises, and with a water and gas supply and a sewerage system; such a user of land would be but a reasonable enjoyment of his rights in respect of his land. So, he may farm his lands, and conduct his farming operations in the ordinary manner. He may fertilize his land, and may make reasonable provision for watering his stock by means of dams, &. The law relating to the legitimate enjoyment of lands must necessarily develop as conditions alter and methods improve. What may be regarded as a dangerous and extraordinary use of lands in one generation may well, in another, become but an ordinary and legitimate enjoyment of those lands. Indeed in some cases the question may become one of fact (Whinfield's Case 3 Beven on Negligence, 4th ed. (1928), vol. I., p. 608). But burning off stubble, when it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger. And I cannot agree that such an operation is an ordinary or natural or reasonable use or enjoyment of land, even if sixty or seventy per cent-or all- of the farmers in the district in which the land is situate take the risk. Nor do I agree that such an operation involves any question whatever for a jury. The facts in the case were not in dispute, and on those facts the jury should have been directed, as a matter of law, that the appellant burnt off his stubble at his peril, and that his liability was independent of any negligence on his part.

The appeal should be dismissed.

Appeal dismissed with costs. Solicitor for the appellant, P. W. McCarthy, Lockhart, by W. J. Maclean.

Solicitor for the respondent, F. J. Lappin, Lockhart, by J.G.J. Richards.

1(1913) A.C. 263. 2(1874) L.R. 1 Ind. App. 364 30 L.T. 770. 3