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McInnes v Wardle

McInnes v Wardle

Case [1931] HCA 40 30 November 1931

Statutory Interpretation

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45 CLR 548

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA. Fire-Damage caused by escape-Independent contractor-Fire lit to burn scrub 1931.

Damage to neighbour's land-Lit during prohibited season-Liability of employer -Bush Fires Act 1913 (S.A.) (No. 1123), sec. 8. MELBOURNE,

The appellant employed an independent contractor to fumigate rabbits on Oct. 6, 7.

his land; in the course of doing so, the independent contractor, during a SYDNEY,

prohibited season of the year, lit a fire, which was a usual and ordinary method used in the fumigation and destruction of rabbits. The fire spread to and on the neighbour's land and there caused damage.

Held, that the employer of the independent contractor was liable for the damage thus caused.

Black v. Christchurch Finance Co., (1894) A.C. 48, followed. Decision of the Supreme Court of South Australia (Napier J.) Wardle v. McInnes, (1930) S.A.S.R. 450, affirmed.

APPEAL from the Supreme Court of South Australia

The respondent, Michael Ernest Wardle, brought an action against the appellant, Hugh Cameron McInnes, claiming £807 for damage caused by fire which was lit upon the neighbouring land occupied by the appellant. The fire was lit by McLeav, an independent contractor engaged by the appellant to fumigate the

45 CLR 549

rabbits on the property and to do some other work to the satisfaction of the appellant. There was no evidence of any express direction or authority to burn, and under the Bush Fires Act 1913 of South Australia it was an offence for any person between 15th October and 1st of the following February to burn any scrub (which includes bracken fern) or light or maintain any fire with the intention of burning any scrub on any land. In December of 1925 McLeay lit fires on the land rented by McInnes to burn off patches of fern which impeded his work.

The action was heard by Napier J., who gave judgment for the plaintiff therein for £317 damages Wardle v. McInnes 1.

Further facts are stated in the judgments hereunder. J. H. Moore (with him E. F. Skewes), for the appellant. Thomson K.C. (with him Beauchamp), for the respondent.

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

GAVAN DUFFY C.J. AND STARKE J. In November of 1925, one McLeay agreed for a consideration to fumigate rabbits on property rented by McInnes on the Bordertown Road in South Australia. According to the deposition of McInnes, he told McLeay not to light fires, even to boil his "billy," and McLeay said he would be careful. Napier J., who tried the action, does not appear to have accepted this evidence; but it is immaterial, in our view, whether McInnes SO directed McLeay or not. The learned Judge held, and rightly held, in our opinion, that McLeay was an independent contractor, that to exterminate rabbits on the property it was necessary to clear the bracken fern, and that an obvious and usual method of so doing, in suitable conditions, was by burning the same. By…

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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Details

AGLC: McInnes v Wardle [1931] HCA 40
Case: [1931] HCA 40
Decision Date: 30 November 1931

CaseChat Overview and Summary

The appeal concerned a dispute between Hugh Cameron McInnes (appellant) and Michael Ernest Wardle (respondent) regarding damage caused by a fire. The respondent claimed damages for fire that spread from the appellant's land to his own, causing significant loss. The fire originated from a fire lit by an independent contractor, McLeay, who was engaged by the appellant to fumigate rabbits on his property. The fire was lit during a prohibited season under the South Australian Bush Fires Act 1913, and it spread to the respondent's land, damaging fences, sheds, hay, wattles, clover, and grass. The Supreme Court of South Australia had previously found the appellant liable for the damage.

The central legal issues before the High Court were whether the appellant, as the occupier of the land, was liable for the damage caused by the fire lit by an independent contractor, and if so, on what legal principles. Specifically, the court had to determine if the appellant's engagement of an independent contractor absolved him of responsibility for the consequences of the contractor's actions, particularly when those actions involved lighting a fire during a prohibited period and resulted in damage to a neighbour's property.

The High Court, affirming the decision of the Supreme Court of South Australia, held the appellant liable for the damage. The court applied the principle established in *Black v. Christchurch Finance Co.*, which states that an occupier of land is liable for damage caused by a fire lit in dangerous circumstances by an authorised person, whether a servant or an independent contractor. The reasoning was that the lighting of a fire on bush land is an operation inherently attended with great danger, and the occupier has a duty to ensure all reasonable precautions are taken to prevent the fire from spreading to neighbouring properties. This duty cannot be delegated to an independent contractor. The court found that the appellant knew, or ought to have known, that burning bracken was a common and necessary method for effective rabbit fumigation in that area, and that its use during the prohibited season presented an exceptional danger. Therefore, the appellant was responsible for ensuring that due care was exercised by the contractor, and his failure to do so rendered him liable for the resulting damage.

The appeal was dismissed with costs.

Orders