Whitfeld v Turner [1920] HCA 49; (1920) 28 CLR 97 (24 August 1920)

HIGH COURT OF AUSTRALIA

Whitfeld Defendant, Appellant; and Turner Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

24 August 1920

Knox C.J., Isaacs and Rich JJ.

Alec Thomson K.C. (with him Addison), for the appellant.

Flannery K.C. and Pitt, for the respondent, were not heard.

Knox C.J.

In this case I think it is quite clear that the decision of the Full Court was right. There was evidence that under certain circumstances of emergency it would have been within the authority of Spinney to light a fire on this land. He lit a fire there, and owing to his negligent conduct in connection with that fire it escaped, and the plaintiff sustained damage, for which he sued. That seems to me to conclude the matter. The fact that Spinney's authority to light a fire was only given to him in case of a certain emergency happening is nothing to the point. Lighting a fire was an act of a class which he had authority to do under certain circumstances. Whether the circumstances did or did not exist might be very relevant as between Spinney and his employer, but is not relevant as between his employer and the plaintiff. That view is completely borne out by the conduct of the case at the trial, when the real case set up by the defendant was that under the circumstances then alleged to exist Spinney had authority to light a fire and that there was no negligence. Having failed in that defence, the defendant cannot now turn round and say that under no circumstances was authority conferred on Spinney to light this fire.

For these reasons I am of opinion that the appeal should be dismissed with costs.

Isaacs J.

I concur.

Rich J.

I concur.

Appeal dismissed with costs.

Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitor for the respondent, A. G. de L. Arnold.