Ronald Desmond Adlington v Allan Ronald Stewart and Rhana Margaret Stewart [1987] ACTSC 5 (16 February 1987)

SUPREME COURT OF THE ACT

RONALD DESMOND ADLINGTON v. ALLAN RONALD STEWART and RHANA MARGARET STEWART
S.C. No. 1603 of 1983
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Negligence - Fire escaping from incinerator - Damage to neighbour's property - Causation - Vicarious liability - No new question of principle involved.

HEARING

CANBERRA
16:2:1987

ORDER

There be judgment for the plaintiff in the sum of $26,805.44.

The defendants pay the plaintiff's costs of and incidental to the suit.

DECISION

On 22 May 1982 the plaintiff, a self employed motor mechanic, was the tenant of land known as Block 18, Section 44, Watson (the plaintiff's land). At that date the defendants were the plaintiff's neighbours, occupying land known as Block 16, Section 44, Watson (the defendants' land) which had a common boundary with the plaintiff's land. There was a metal garage on the plaintiff's land. In it he garaged his car and a boat and trailer and stored there all his tools and equipment together with a number of miscellaneous items all listed in a valuation report, Exhibit "B".

2. At about 8 p.m. on 22 May 1982 the plaintiff placed his motor vehicle, a 1970 Holden Kingswood sedan, in his garage, the doors of which he closed but did not lock. He parked a panel van in the drive. He did not turn on the light in the garage. The window in the garage, wooden framed, was nailed closed. I am satisfied that when he left it there was no fire burning in the garage nor was any electrical or other appliance of any kind turned on or otherwise left in a dangerous state in it.

3. At about 7 a.m. on 23 May 1982 the garage was gutted by fire and its contents destroyed. The plaintiff claims damages from the defendants in respect of the fire.

4. A plan of the area was tendered and became Exhibit "A". The eastern boundary of the defendants' land faces William Street. The northern boundaries of the plaintiff's land and of Block 17, Section 44, Watson, which lies adjacent to and immediately to the east of the plaintiff's land, form a common boundary with the southern boundary of the defendants' land. The western boundary of the defendants' land is common to the eastern boundary of Block 10, Section 44, Watson, while the southern boundary of Block 10 is common to the northern boundary of Block 19 which in turn has a common boundary with Block 18, lying to its east. The fences of the four blocks of land, 10, 16, 18 and 19, which joined at the north-west corner of the plaintiff's land were all of wood. There was a gate in the boundary fence between the plaintiff's land and that of Mr Holmes, Block 19, immediately to the west. There was an incinerator located in the south-west corner of the defendants' land, some 1.83m. (6ft.) or a little more from each of its southern and western boundaries. In the words of the first defendant,

"The area around the incinerator between the

southern fence and also the western fence,
there were old compost, and also old lawn
clippings, which had formed there, and they
had sort of formed a pack."

5. The garage to which I have earlier made reference was a large double garage originally 5.49m (18 ft.) long. A skillion-roofed extension had been added to its northern end. There was an unsealed narrow gap between the extension and the original structure. The garage was located in the north-western corner of the plaintiff's land, each of its northern and western ends being about 76cms. (2ft.6in.) from the northern and western boundaries respectively of that land.

6. Against the back or northern wall of the garage was a metal shelf and close by were four metal storage lockers. The extension had an earthen flooring while the remainder of the garage had a concrete floor. There was a window in its eastern wall. It had two metal sliding doors which, when closed, took up all of the southern end or front of the garage. It had its own light which had been connected by an electrician. If the plaintiff wished to use any electrical appliances in the garage he used a lead from a power point in the laundry.

7. From time to time the plaintiff used the garage as a workshop but much of his work was not carried out there. On 22 May 1982, a Saturday, he was working at Yass. In the week before that date he had used the garage only for storage.

8. At the time of the fire there was some turpentine stored in the garage together with the remains of paint in tins. There were, as well, one and a half tanks of 2-stroke fuel which the plaintiff used in his boat.

9. The boat was seated on its trailer on the eastern side of the garage some 1.83-2.44ms. (6-8 ft.) from the doorway while the car was parked just inside the door.

10. Between the western wall of the garage and the fence immediately adjacent was a pile of timber, hardwood and oregon, some of the northern ends of which protruded beyond the northern wall of the extended garage while between the northern wall and the fence nearby there were six or so sheets of galvanised corrugated iron lying flat on the ground.

11. The plaintiff went to bed at about 10 p.m. At about 7 a.m. on the following morning he was awakened by an explosion which shook the house. He thought at first that an oil heater had exploded. His attention was then directed to the garage. He went out and saw smoke and flames coming through the unsealed gap in the roof where the extension had joined the original garage. He opened the left hand door of the garage intending to get his car out. He saw flames and smoke at the rear and the right hand side of the garage. The flames appeared to be enveloping the boat. He realised that he could not safely remove his car and shut the door. He sustained no injury when opening or shutting the door. He got into the panel van and drove it out of danger.

12. He checked to see whether the Fire Brigade had been called. He then walked through the gateway between his land and that of Mr Holmes and then to the back. He noted that about a panel of the fencing between his land and that of Mr Holmes had been destroyed as had a similar lenth of the fencing between his land and the defendants' land. About 91cms (3ft) of the fence between Blocks 19 and 10 of Section 44 had been burnt as had a similar length of the fence between the defendants' land and Block 10 of Section 44. He said a panel of fencing measured about 8ft. (2.44m), maybe 10ft. (3.13m). He saw the wole of the area of those four fences had been burnt out but the fire was still enclosed in the garage. The fire brigade came and did its work. By 8 a.m. the fire was virtually out.

13. The fire destroyed the rear wall of the garage building, burnt the stack of timber lying between the western side of the garage and the adjacent fence and destroyed a great deal of property which had been inside the garage.

14. The plaintiff prepared a schedule which became part of Exhibit "B" and which listed all the property which had been destroyed. He deposed that he described all that property accurately to Mr T.J. Mckenna, a valuer, who was thereupon able to value the property destroyed at $16,117.00.

15. After the fire was out the plaintiff went to the rear and looked into the defendants' land. He saw the incinerator and saw a burnt out patch between the incinerator and the back fences. He said that from the incinerator the burnt patch spread out in a fan shape. He illustrated this in exhibit "D". During the morning he spoke to his insurance broker who gave him advice as to what he could do. Again during the morning he saw the defendants' son playing a hose on the incinerator and on nearby lawn clippings.

16. Subsequently a few of the plaintiff's friends and relatives came to help him clear up the mess. Later that day, he said, he saw the defendant, Mr Stewart, raking the area near the incinerator and on looking over saw that the burnt patch had been covered by lawn clippings.

17. On the Monday he went to finish the job at Yass in which he had been engaged on the Saturday.

18. He agreed in cross-examination that the night of 22/23 May 1982 had been a very cold night with a very heavy frost. He said there had been no fog during the night or in the morning.

19. He said that he had placed no sump oil on the earthen floor of the extension of the garage. He agreed that there were weeds at the back and at the side of the garage. He said that a battery charger which was in the garage had not been connected.

20. Glen Thomas Beadman gave evidence that he had known the plaintiff for about 15 years and that he arrived at his home at about 9 a.m. on 23 May 1985. By that time, he thought, the Fire Brigade had gone. He did not see the defendants. During the course of the day he went to the fence between the plaintiff's and the defendants' land. He saw the incinerator on the defendants' land and a fan-shaped burn mark leading from the incinerator to the nearby fences. He had for some time been aware of grass clippings near the south-western corner of the defendants' land. To the best of his recollection something, it may have been the fence, between Block 10 and the plaintiff's land was smouldering. He illustrated on a plan, exhibit "F", the position of the incinerator and the area of burnt clippings which he assumed had been burnt by a fire starting at the incinerator. At some time later that day he saw the defendant, Mr Stewart, raking the burnt area near the incinerator and spreading the burnt and charred residue of the clippings on a garden bed.

21. On the next day, in the afternoon, he went with his father onto the defendants' land. There he saw that dry grass clippings had been spread over the burnt area fanning out from the incinerator. He kicked aside the newly spread grass clippings and had his father photograph the burnt area near the incinerator. Photographs taken and tendered in evidence supported what he said.

22. In cross-examination he admitted that he used take out the plaintiff's daughter.

23. Gary Anthony Foran gave evidence that he was the plaintiff's son-in-law and that he went to the plaintiff's house on the Sunday morning where he assisted in cleaning up. He went onto Mr Holmes' property. He saw a fan shaped or triangular burn mark spreading out from the incinerator to the fences. He said that during the course of the day the defendant Mr Stewart said to him words to the effect that "we had made a mess or a mess had been made or it looks like you have a mess there". Mr Foran said, not directly to Mr Stewart, "Before they bloody well started over there" or words to that effect. By the phrase "over there", he meant, I think, the defendants' land. Mr Stewart shrugged and walked away.

24. Later during the course of the day Mr Foran saw the defendant, Mr Stewart, near the incinerator where he appeared to be raking.

25. A nephew of the plaintiff, Robert Douglas Wicks, gave evidence that he arrived at the plaintiff's home at about 10 a.m. on 23 May 1982. He had brought his trailer to assist in taking damaged property to the rubbish tip. During the course of the day he went to the back fence and saw

"a burnt area coming out from the incinerator
towards (his) uncle's back fence . . . More of
a slice of cake type shape. Not quite a V
but - it was fanning out, but it was starting
out a bit wider . . . without the V at the end".

It seemed, he said, to get wider as it came out from the incinerator.

26. A friend of the plaintiff, Barry Beaupeurt Smith, went to the plaintiff's home on the morning of 23 May 1982 to help him to clean up after the fire. The Fire Brigade had apparently left shortly before. During the course of the day he looked over the back fence and saw a burned section of grass in the shape of a V or a wedge that emanated from the incinerator.

27. Stanley James Beadman gave evidence of taking the photographs earlier referred to. His evidence supported that of his son.

28. Dr Thomas Oliver Penman, an expert in the investigation of fires and explosions, gave evidence which convincingly supported the theory that the subject fire started at the incinerator and spreading slowly, gained entry into the garage and caused the resulting damage. I will return to his evidence.

29. The defendant Mr Stewart gave evidence that he had asked his son Ross to burn some rubbish on the Saturday. At about 7 a.m. on the Sunday morning he heard an explosion. He said, oddly I thought,

"I got out of bed and I thought it may have
been our neighbours at 18 William Street, not
20. And I went out the front door because he
has quite a number of turps, tins, paints and
lacquers and so on, and also I thought it
might have been the tanks - water-tanks on
the side of the house."

He inspected the area near the fire more closely at about 8 a.m. or a little after. He said he did not see a large area of blackened ground with ash on it at the rear of his incinerator. He was thus in direct conflict with the plaintiff's witnesses. He denied that he did any raking in the area during the day. In the area around the incinerator he noted that sparks appeared to have landed on the grass causing black patches. In a report made on 25 June 1982 Mr Stewart said:-

"At about 8.15 AM with Ross (his son) I went
to the fence near the incinerator to see what
had exploded and what had burnt so fiercely
in the N.W. corner of the garage. We saw
nothing peculiar and we were informed by a
policeman that the cause of the fire was not
known. We were also advised by a fireman to
water the grass cuttings on which we were
standing as it had begun to burn in a few
places. Ross did this later by which time
quite a bit of grass had burnt. He could not
do it earlier as the hose was frozen."

30. In response to some questions which I put to him, Mr Stewart said that at about midday on 23 May 1982 there were a few spots burnt on the "grass matting" including an area which he later discovered was about 8" x 8". He said that he discovered that probably about a week after the fire and that that was the maximum area of burnt grass that he saw. I found it difficult to reconcile his evidence just referred to with his statement made that "quite a bit of grass had burnt".

31. The defendant Mrs Stewart gave evidence that during the course of the afternoon of 22 May 1982 she was stripping wall paper. She had been wetting the wall from which she had stripped the wall paper. Just before 6 p.m. she carried a bucket containing wallpaper and "sloshy water" to the incinerator and noted, she said, that there was absolutely nothing left in the bottom of the incinerator, no glow, and that she could see the grate. She said she then emptied the bucket which was about two thirds full of the strippings and "sloshy water" into the incinerator. She said she thought the fire was completely out because she could not see anything.

32. I do not think her evidence meant that the bucket was two thirds full of water when she emptied it into the incinerator but rather that there was water in the bucket and that the strippings plus water filled it to approximately two thirds.

33. None of the police who attended the fire considered it originated in the incinerator. In his notes taken at the time (8 a.m. on the morning of 23 May 1982), the then Constable Fisher said:

"Fire 0630 start
Appears contained in garage which was well
sealed.
Solvents.
Incinerator at back, not burning on arrival,
though may have been day before. Wind WNW
(opp dir (direction) to inc (incinerator) and
frost. No flame dam (damage) from inc
(incinerator) to gar (garage)"

34. Giving evidence-in-chief, Mr Fisher, who had been a police officer engaged in the investigation of fires for some time at 23 May 1982, said:-

"The incinerator was not actually burning, as
I recall. There was no evidence whatsoever
of ground borne flame about that
incinerator. The complete and total extent
of flame damage extending into No.16 William
Street, the Stewarts' household, was probably
30 or 40 millimetres, from memory, perhaps a
bit further, but restricted along the
confines of where the paling fence had been
fire damaged."

He made no reference to the burnt patches described by Mr Stewart. His statement that the garage was well sealed was, I am satisfied on the evidence, wrong.

35. Mr Fisher said that there was more flame damage to the fence on the garage side (the western side) than there was on the incinerator (the northern) side of the fence and that there were the remains of a pile of timber between the garage and the fence to the west of the garage.

36. Senior Constable Corrigan gave evidence which accorded substantially with that of Mr Fisher as did Mr Fox.

37. Ross Stewart, the son of the defendants, gave evidence that at about 5 o'clock on the afternoon of 22 May 1982 he was burning leaves and boxes in his parents' incinerator. He broke up the boxes which were fairly large like wine boxes or something a little bigger perhaps and then started burning the leaves. When they had burnt down enough he started to put the bits of the boxes in until they too burnt down a fair way and were left smouldering at the end when he left, some twenty minutes after he started the burning. He could not see any red from the outside. The material was smouldering right down the bottom of the grill on the incinerator. He did not return to it. He said that the next morning he saw no continuous area in which grass or cuttings had been burnt between the incinerator and either of the two fences in question. He saw no flames at all in the burned sections of compost near the fence which he agreed were present, just smoke. He was then asked whether it would be quite wrong to say that there was quite a lot of grass, grass between the incinerator and the back corner, which had been burnt. He replied,

"Most of it was not burnt. I would say over
60% of it was not burnt."

He was then asked, "Where was the remaining 30% of burnt grass?" and replied, "Well, along the fences, out about a foot from the fence." He described the burnt area adjacent to the fences extending one foot only from the fence leaving an unburnt area of five feet to the incinerator.

38. Mrs Piroska Bellak said that she had not seen any area in which grass or clippings had burnt continuously from the incinerator to the fence.

39. There is thus a clear conflict of evidence between the witnesses called on behalf of the plaintiff and those called on behalf of the defendants. However, some matters seem to be beyond dispute. The timber lying adjacent to the fence on the western side of the garage was, on any account, severely damaged if not totally destroyed. The fence on the western side of the garage suffered, I am satisfied, very severe damage as well.

40. Dr Penman's evidence satisfied me that the fire had moved in some fashion from the incinerator to the timber on the western side of the garage via the grass clippings and that over a period of some hours the timber had burnt to the point where the ambient temperature was so raised that the heat penetrated the gap in the garage and caused the materials in the garage to be set on fire.

41. The explanation furnished by Dr Penman satisfied me on the balance of probabilities that the fire started in some fashion from the incinerator despite the fact that water had been poured onto the burning material in that incinerator when further material was placed in it by Mrs Stewart.

42. All the plaintiff's witnesses gave evidence concerning the fan-shaped burn mark from the incinerator leading to the seat of the fire and I am satisfied that they were acceptable witnesses. On the other hand, Mr Stewart, for example, stated that there was no evidence of any burn mark between the incinerator and the garage which might have been attributable to a fire moving from the incinerator at all. I was unable to accept his evidence. Nor did I accept Mrs Stewart's evidence as establishing that the fire in the incinerator was completely out when she looked into the incinerator on the Saturday afternoon. The photographs taken on the Monday, as I am satisfied they were, support the evidence of the plaintiff's witnesses. For the defendants' story to be accepted would require, I think, in substance the acceptance of a theory that in some fashion but faintly suggested in cross-examination the plaintiff's witnesses fabricated evidence. This suggestion was not accepted by Senior Constable Corrigan nor do I accept it.

43. I am satisfied that the fire in the incinerator was lit by the defendants' son on the instructions of Mr Stewart and that therefore the defendants are responsible for his actions. Having regard to the degree of liability which attaches to him who lets a fire escape from his land and as a result do damage, I am also satisfied that the defendants are liable for the damage done the plaintiff. The lighting of the fire in the incinerator in close proximity to the clippings nearby and failure to make quite certain that it was extinguished rendered the defendants liable for that damage. There must, accordingly, be judgment for the plaintiff.

44. I am satisfied that the amount of damage caused was $16,117. Interest on this, at 14% for the period from the date of the fire to the date of judgment, amounts to $10,688.44.

45. There will be judgment for the plaintiff in the sum of $26,805.44 and costs.