Tenison College v Cornelissen & Hammond No. DCCIV-97-41568 Judgment No. D3895

TENISON COLLEGE v CORNELISSEN & HAMMOND

JUDGE HUME
CIVIL

In this case the plaintiff the Catholic Church Endowment Society trading as Tenison College brings an action against Daniel Paul Cornelissen and Jeremy David Hammond in negligence, claiming damages for a fire which destroyed hay and a hay shed and other property on the grounds of Tenison College at Mt Gambier on the 18th December l994. Quantum of the plaintiff’s loss has been agreed at the sum of $20,000.
Each of the defendants was represented by his father as “next friend”. The structure of the action is, I think, in error, in that Rule 35.01 provides that children should commence proceedings by next friend and defend by guardian ad litem. However the substance of the matter is quite clear, and the technicalities as to the late exchange of Contribution Notices, and particularly the fact that the plaintiff initially purported to sue as “Tenison College” rather than as “The Catholic Church Endowment Society, trading as Tenison College”, are matters in respect of which I have dispensed with strict compliance of the Rules and allowed proper amendments to be made in order to arrive at the substantive issues of the case without undue formality.
There is no doubt that there was a fire at Tenison College on the 18th December l994. That is admitted. The fire destroyed a hay shed. Tension College is a co-educational school for secondary school level students. As part of its activity livestock are kept and as an adjunct to that activity hay was stored in a hay shed in a small open paddock adjacent to school buildings.

The school is situated on rising ground at the foot of the Mt Gambier geological structure. It was established many years ago but has now become surrounded by residential development. In broad terms it can be described as having extensive grounds effectively open to access by the public. It has tennis courts which are used by the public on weekends. Some of the grounds are not fenced. The subject paddock was, however, fenced at the time. It was nevertheless accessible by children and occasionally by adults taking walks in the neighbourhood. It was from time to time used as a route to obtain access from the neighbouring suburb Tenison Heights to a bus stop on the opposite of the school ground by children who were not students of Tenison College.
It is not contested that on the day in question the school was closed. It was a Sunday, a hot day, and a breeze was blowing.
The defendant Daniel Cornelissen (whom I shall refer to as “Daniel”), was born on 18th November l98l and accordingly was a little over 13 years of age at the time of the incident. He was friends with Jeremy Hammond who was born on the 21st January l982 and was accordingly a little under 13 years of age at the time of the incident.
The plaintiff’s claim against the defendants is in negligence. That allegation is denied. The defendants have exchanged contribution notices. There is an allegation of contributory negligence on the plaintiff’s part but there is no need to be concerned with that. No basis has been established for the allegations made in the pleadings, as I shall say.
On the afternoon of the fire the boys went into the grounds of Tenison College to play. Daniel had his bicycle Jeremy had his roller blades. Daniel’s parents lived with him in a house adjoining the paddock in which the fire occurred. The boys played in the school grounds for something approaching an hour. During the course of that play they found a box of matches near the toilet block about 400 or 500 metres away from the hay shed and certainly out of sight of it. Daniel picked them up and put them in his pocket. There is no evidence about who left, or dropped, the matches and there is no basis for a finding that the plaintiff could, or should, have been aware of their presence.
I make the finding that as the afternoon drew to a close the boys decided to leave the school grounds. Their path to Daniel’s parents’ house was across the paddock to which I have referred and past the hay shed. At some point near the hay shed the children decided to use the matches to smoke hay straws as if they were cigarettes. I make the broad finding that that decision was a joint one. It is not clear who initiated the discussion leading up to the decision but in my view that is not material. It is quite plain on all the evidence that the boys entered into a joint escapade, to use broad terms. They took up a position either on or near a gate which had been placed across the one open side of the small hay shed. (I would assume it was placed there to prevent stock getting at the hay stored in the shed). They each selected hollow pieces of straw, passed the matchbox from one to the other and used the matches to light straws. They each smoked straws.
It is obvious that the recollection of the boys when they gave evidence some four years after the event must be coloured by time, and I think probably by the unconscious and natural tendency to minimise their own involvement and maximise that of the other. I do not make that remark in any unkind sense. It is also true that as the events transpired each initially told lies to the police. They each said they observed two other boys, slightly older than they were, aged about fourteen, in the vicinity of the shed at the time. However, shortly after that, the truth was told by each of them. I should say at this stage that each impressed me as an honest young adult despite the differences in their recollections at the time of trial. I am certain that each told me the truth as they recollected it. I am certain that neither attempted to mislead me.
The findings which I make emerge from the testimony of both of the defendants. They can be summarised in a very simple way. The boys selected straws to smoke. Daniel had the matches, he lit a couple of straws in his mouth and smoked them. Jeremy then took the matches and lit a straw. They each smoked straws. Their recollection is not accurate, but on something in the order of six or seven occasions they each smoked a straw or straws. The straws, as one might expect, did not behave like a cigarette would, and went out from time to time. The boys exchanged the matches to relight their straws which had ceased to burn, or to light new ones. In broad terms, it was Daniel’s evidence that he put out the matches which he used by shaking them and then licking his fingers and pinching them, or sometimes simply shaking them out and dropping the spent match. Sometimes he put the spent match back in the box. It was Jeremy’s evidence that he shook his own matches out and dropped the spent match. I do not think that it is possible to make any firm finding beyond that broad statement.
What is clear however, on the whole of the evidence, is that towards the end of the straw smoking escapade Daniel had his fingers burnt by a straw and that he flicked it away behind him. I think on the balance of probabilities he flicked that into, or to an area adjacent to, the hay stack. It was his evidence that he looked for it but he could not see any evidence of fire. He looked for about 20 seconds or so. It was Jeremy’s evidence that he also looked for a shorter space of time but saw nothing. I conclude on the probabilities that the two boys then left the hay shed and walked towards the fence which separated the paddock from Daniel’s parent’s house. There is a difference of recollection between the boys as to who left first. Daniel thought that they walked together. Jeremy said that he left first because he needed to go to the lavatory. Whatever was the true position, when one or other or both of the boys had reached the position near the fence one or other of them noticed there was smoke coming from the hay shed. They ran back, attempted to use a board to put out the fire out but failed, and then ran to Daniel’s parent’s house and raised the alarm. Ultimately the fire brigade came and extinguished the fire but the hay shed and its contents were gutted by that stage. Daniel and Jeremy went to watch the fire being extinguished. During that period of time they concocted a story to shift the blame from themselves to the two fictional fourteen year old boys. Subsequently they told the truth.
Very interesting points arise. It was argued by the plaintiff that the defendants were engaged in a joint tortious enterprise and it was argued that they were each of an age that it should be said that an ordinary boy of the age of (very close to) thirteen years should be found by the court to have been capable of appreciating the danger of the activity in which these defendants were engaged, and should have appreciated the risks which were involved. McHale v Watson 115 CLR 199 is obviously the leading authority but it heads a line of authority through Beasley v Marshall 17 SASR 456.
I record the following findings of fact:
Whilst the decision to participate in the activity of smoking the straws was one made by the two boys as a result of discussion between them and whilst it is impossible to determine the origin of that discussion, the boys each participated in the activity on their own. It is true that they shared the matches but in my view it is significant that they each selected suitable hollow straws to smoke for themselves.
The next major point is that on my finding, whilst it is possible the fire may have been started by a spent, but hot, match discarded into the straw lying about a foot of the hay shed, on the whole of the evidence it is probable, I find, that the fire was ignited by the burning straw flicked away by Daniel in an involuntary way when it burnt his fingers.
Obviously to any reasonable adult the activity of lighting matches and smoking straws in the immediate vicinity of a hay shed on a hot summer’s day with a breeze blowing was a negligent activity in the sense that the risk of fire would be reasonably forseeable.
The primary question is whether the court should find that children of the ages of slightly less and slightly more than thirteen years of the like experience of the two defendants could be found to have been negligent in the line of the authorities commencing with and following McHale v Watson.
I think that the objective test within the authorities following McHale v Watson is satisfied in the present case. I think that an ordinary boy of that age, having been raised in the country and with the ordinary life experiences of such a boy would or should have known of the dangers of playing with matches and smoking straws in that environment.
Whilst the evidence was not strictly admissible on the topic of an objective test, the behaviour of the boys is relevant to a determination of what a reasonable boy of that age would have done; Daniel looked to see if his discarded straw had ignited hay, and Jeremy also looked with that purpose. They were conscious, after the fire occurred, of their responsibility. That caused them to fabricate the story that others were responsible for the fire. Those facts reinforce in my mind the conclusion that ordinary boys of a like age and experience whilst not perhaps realising the full consequences of the action of playing with matches and lighting straws in the immediate vicinity of a hay shed, in December on a hot afternoon with a breeze blowing are that ordinary boys of that age in those circumstances should be held to be capable of appreciating the risk of fire.
Accordingly I come to the conclusion that each of the boys was negligent within the McHale v Watson line of authorities.
However, I have come to the conclusion that the boys were not joint tort feasors. They were each engaged in a negligent activity. Whilst, on the probabilities they made a joint decision to smoke the straws and whilst they exchanged the matches, it is clear on the evidence that each selected his own straws and individually smoked them.
It seems to me that is significant. It is not as if jointly they lit a fire in the vicinity of the hay shed to barbecue sausages which they would share, and by doing that they caused the fire in the hay shed. Similar examples are obvious.
Accordingly I think that whilst each of them acted negligently, they were not joint tortfeasors. The tort giving rise to the plaintiff’s cause of action is not completed until the damage, that is the fire, commenced. On my finding. On the balance of probabilities the commencement of the fire was the result of Daniel’s involuntarily, but foreseeable, act when he threw a burning straw away when it burnt his fingers.
Accordingly, whilst it is obvious that the boys were each engaged in a negligent activity and it is clear that each could be held to have foreseen the risks involved, the tortfeasor in this case was Daniel.
It cannot be said that the two boys were involved in a concerted action to a common end. See the dissertation on the topic in Glanville Williams on Joint Torts and Contributory Negligence. Stevens & Sons Ltd. Chapter 1, and particularly heading 4, a work to which counsel were referred.
The claim in contributory negligence against the plaintiff was based, in summary, that the plaintiff failed to supervise the grounds of the school on the weekend; allowed children to play on the grounds unsupervised; failed to ensure that the hay shed was secure from fire, and allowed matches to remain on the property.
There is no substance in my view in any of these assertions. The hay shed was a hay shed of the type commonly found. The school grounds were such that it was not negligent in my view for the plaintiff to fail to have them patrolled constantly. The matches, whoever discarded them, were found by the boys about 400 or 500 metres from the subject hay shed. It is not established that the plaintiff by its servants or agents knew that they were there, or should have known that they were there, or should have reasonably foreseen that children would find them and use them in the way which actually occurred. I cannot sustain the claim of contributory negligence.
The plaintiff should have judgment against Daniel.
I turn to the question of the contribution notices. As I have said there is little to separate the departure of each from a standard of care which should apply to boys of their age and experience in circumstances such as those in which they were on the 18th December l994.
However, on my findings of fact it is clear that what Jeremy, whilst careless and acting in a dangerous manner did not cause the fire. It was Daniel’s actions which, in a legal sense, were foreseeable, did start the fire.
In those circumstances it does not seem to me that it is appropriate to make any order on either contribution notice. Each is dismissed.
The plaintiff will have judgment against Daniel Paul Cornelissen in the sum of $20,000.
There will be judgment for the plaintiff on the counterclaim of Daniel Paul Cornelissen.
I will hear the parties as to costs. My initial thoughts are that:
The plaintiff should have costs against first defendant on the claim.

Second defendant should have costs against plaintiff on the claim.

Defendants should have costs against each other on the third party notices.

On the issue of contributory negligence the plaintiff should have costs. However so little time was occupied on this issue it may be inappropriate to make any order on that point.

I will hear the parties at a time convenient.

[1998] SADC 3895

23 October 1998