Legal Research
Cases
Hazelwood v Webber

Hazelwood v Webber

Case [1934] HCA 62 19 December 1934

Duty of Care

Negligence

Remedies

Statutory Construction

Appeal

Damages

Negligence & Tort

Statutory Interpretation

No judgment structure available for this case.

Type to search within this case.

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…

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 Hazelwood v Webber

Details

AGLC: Hazelwood v Webber [1934] HCA 62
Case: [1934] HCA 62
Decision Date: 19 December 1934

CaseChat Overview and Summary

The appellant, Hazelwood, lit a fire on his land to burn stubble, a common farming practice. A stump ignited and smouldered, eventually spreading to the respondent Webber's land during a high wind, causing damage. Webber sued Hazelwood for damages, alleging the fire was lit carelessly and negligently. The jury found no negligence on Hazelwood's part, and a verdict was entered for him. However, the Full Court of the Supreme Court of New South Wales set aside this verdict and entered judgment for Webber. Hazelwood appealed this decision to the High Court.

The central legal issues before the High Court were whether the appellant was liable for the damage caused by the fire, and if so, on what basis. Specifically, the court had to determine if the burning of stubble constituted a natural and ordinary use of the land, which would potentially exempt the appellant from liability under common law principles, or if it was a non-natural use for which strict liability applied. The court also considered the effect of relevant New South Wales legislation, including the Careless Use of Fire Act 1912 and the Bush Fires Act 1930, on the common law position.

The High Court held that the burning of vegetation in the open during midsummer, particularly stubble, was not a natural or ordinary use of the land. Consequently, the appellant was liable for the escape of the fire and the resulting damage, independently of any negligence. The Court reasoned that while the Careless Use of Fire Act and the Bush Fires Act provided for penalties and regulated the use of fire, they did not limit the common law liability for damage caused by escaping fires, except to the extent they authorised certain uses of fire. Even in cases of authorised use, liability for damage occasioned by reckless or negligent use was maintained. The Court also affirmed that the Fires Prevention (Metropolis) Act 1774 was not in force in New South Wales.

The appeal was dismissed, and the decision of the Supreme Court of New South Wales was affirmed. The appellant was therefore liable for the damages awarded to the respondent.

Orders