Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268 (19 December 1934)

Apart from statute the common law imposed upon the occupier of land, who used fire upon it, a prima facie liability which was independent of negligence for the harm suffered by his neighbour as a natural consequence of the escape of the fire. This prima facie liability might be answered by more than one ground of excuse or exception. The special responsibility arising from the use of fire has come to be regarded as no more than an application of a wider general rule governing the liability of occupiers of property and, perhaps, others who introduce an agency from which harm may reasonably be expected unless an effective control of it is maintained. The grounds of excuse or exception have arisen in the development of this general rule rather than in connection with the ancient strict liability for the escape of fire. Their precise nature and limits appear not yet to be well understood. In the present case, we are concerned with one only of these grounds. The fire, which travelled from the defendant's land to the plaintiff's, was lit by the defendant for the purpose of burning off stubble, a thing beneficial to the land which many farmers do. The use of fire for such a purpose is said by the defendant to be a recognized incident of the proper enjoyment of the land which, he claims, falls outside the application of the prima facie rule of absolute liability. The question whether this claim is well founded is that upon which the decision of the case must turn unless the common law has been superseded by statute. But, on behalf of the defendant, it is contended that in fact statute has abrogated or modified the common law rule in New South Wales. We do not think that this contention is correct. Sec. 86 of the Fires Prevention (Metropolis) Act 1774 (14 Geo. III. c. 78) was, we think, part of the law which, under 9 Geo. IV. c. 83, was originally in force in New South Wales. Its provisions, notwithstanding that the statute in which it occurs related to London, have been held of general application (Richards v. Easto[1]). It soon ceased, however, to be the formal expression of the law in New South Wales. Its provisions were transcribed in sec. 74 of the local statute of 8 William IV. No. 6, called the Sydney Buildings Act 1837. This section should, in our opinion, also be construed as of general application. The repetition of the section by the colonial legislation operated as an implied repeal of the British enactment so far as it applied to New South Wales. But, in its turn, the statute of 1837 was repealed. The repeal was effected by the City of Sydney Improvement Act 1879 (42 Vict. No. 25). In Reid v. Fitzgerald[2], Harvey, C.J. in Eq., held that another section of 14 Geo. III. c. 78, viz., sec. 83, was not in force because it had been exactly reproduced by sec. 71 of 8 William IV. No. 6 which should be held, like its prototype, to be of general application. He said[3]: "In my opinion the repeal of that Act would not have the effect of reviving the old Imperial enactment, even assuming it was at one time in force by reason of 9 Geo. IV. c. 83." It appears to be correct that the repeal would not revive the Imperial provision which the repealed statute had, in its application to New South Wales, previously repealed. For sec. 4 of the Acts Shortening Act (22 Vict. No. 12), uses the term "enactment," a term apt to include Acts of the British Parliament in force by virtue of 9 Geo. IV. c. 83. The Act of 1774 may, therefore, be regarded as not in force in New South Wales.

By the Careless Use of Fire Act 1866 (29 Vict. No. 21), lighting fires in the open was regulated under penal sanctions. Sec. 6 of the Act provided that nothing contained in the Act should interfere with the right of any person to recover at common law or otherwise compensation for damage occasioned by the reckless or negligent use of fire. This provision is repeated in the Careless Use of Fire Act 1912 (No. 28) which, together with the Bush Fires Act 1930 (No. 14), states when the lighting of fires in the open is allowable and when penal. An argument was advanced that, upon a proper consideration of this legislation it should be understood as an exhaustive statement of the civil as well as the criminal liability involved by the use of fire in the open, and that the civil liability was limited to its reckless or negligent use. We are unable to agree in this reading of the Act. We think that it was intended to justify civilly the use of fire in the manner and on the occasions prescribed by secs. 4 and 5 of the Careless Use of Fire Act 1912, subject to a condition that there should be no carelessness or recklessness, but otherwise to leave the law of civil liability unaltered.

The case, therefore, turns upon the question whether the use of the fire made by the defendant was such as to fall outside the strict liability independent of negligence and expose him to civil liability only on the ground of negligence which the jury's verdict has negatived. The full enjoyment of the occupation of land according to the reasonable standards of behaviour prevailing in a community or locality is not possible without the occupier's making some use of things which, if there be a failure or removal of physical control or restraint upon their natural behaviour, will or probably will cause injury to neighbouring occupiers. The principle upon which a prima facie absolute liability appears to be imposed by the law is that no man should at the expense of his neighbour introduce upon his own land a potential source of harm which is considered to require continual and effective control or restraint to prevent mischief. If through a failure or relaxation of control damage to his neighbour occurs, although without negligence on his part, he should indemnify his neighbour. But when, to obtain effectual use and enjoyment of land in a reasonable manner according to its character and the uses for which it is adapted, occupiers find that the introduction of such a potential source of harm is generally necessary, to insist upon the prima facie rule would be to restrict the proper enjoyment of the land or to impose a special responsibility for loss arising from a danger to which by the recognized use of the land every occupier exposed himself and other occupiers. Accordingly, when the use of the element or thing which the law regards as a potential source of mischief is an accepted incident of some ordinary purpose to which the land is reasonably applied by the occupier, the prima facie rule of absolute responsibility for the consequences of its escape must give way. The terms in which the grounds of this exception from or exclusion of the prima facie rule have been described have varied, and, both because of this variation and of their indefiniteness, have been open to criticism. In his judgment in Bamford v. Turnley[4], where the earliest expression of the ground of the qualification appears, Bramwell B. spoke of the common and ordinary use of land as opposed to use in an exceptional manner. Lord Cairns in his speech in Rylands v. Fletcher[5], by which the generality of the qualification upon the rule was established, spoke of use "in the ordinary course of the enjoyment of land" and of "non-natural use." Others have preferred the simple epithets "extraordinary" or "exceptional." But in the decision which finally confirmed the general application of this exclusion of absolute responsibility, namely, Rickards v. Lothian[6], Lord Moulton defined the rule to be that the occupier's liability independent of negligence arose from "some special use bringing with it increased danger to others" and "not merely ... the ordinary use of the land or such a use as is proper for the general benefit of the community." Now in applying this doctrine to the use of fire in the course of agriculture, the benefit obtained by the farmer who succeeds in using it with safety to himself and the frequency of its use by other farmers are not the only considerations. The degree of hazard to others involved in its use, the extensiveness of the damage it is likely to do and the difficulty of actually controlling it are even more important factors. These depend upon climate, the character of the country and the natural conditions. The question is not one to be decided by a jury on each occasion as a question of fact. The experience, conceptions and standards of the community enter into the question of what is a natural or special use of land, and of what acts should be considered so fraught with risk to others as not to be reasonably incident to its proper enjoyment. In Australia and New Zealand, burning vegetation in the open in midsummer has never been held a natural use of land. That it should be so considered does not appear to have occurred to the Supreme Court of Victoria. "If a person choose to bring fire into an arid place, he does so at his own risk, and the question whether he was guilty or not guilty of negligence as to the fire spreading does not arise" (per Stawell C.J., Sheehan v. Park[7]). Nor to that of New Zealand. "It is admitted that ... the law in New Zealand is that if a person lights a fire on his own land he must at his peril prevent its spreading to the land of his neighbours" (per Williams J., Kelly v. Hayes[8]). In Canada the view taken in the Western Provinces has been the same: see Goch v. Youschak[9], although in Upper Canada a contrary doctrine was adopted as early as 1846 (Dean v. McCarty[10]); see the judgment of Patterson J. in Furlong v. Carroll[11]. Nothing which was said by the Privy Council in Black v. Christchurch Finance Co.[12] supports the view that burning vegetation in such countries as New Zealand and Australia is anything but an extra-ordinary or special use of land involving exceptional danger to others. Indeed, Lord Shand said[13]:—"The lighting of a fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour's property (sic utere tuo ut alienum non laedas)."

In our opinion the operation of burning stubble exposed the appellant to liability independently of negligence for the consequences of the escape of the fire.

The respondent brought an action against the appellant, for that the appellant lighted and kept a fire on his land in such a negligent and improper manner that it escaped and extended into the lands of the respondent, whereby the respondent sustained considerable damage. On the 15th February 1933 the appellant, who is a farmer, lit or consented to the lighting of a fire upon his land, for the purpose of burning off 100 acres of stubble. The stubble was burnt off, but the fire lighted some stumps, which smouldered for some time, and on the 20th February—as the argument before this Court conceded—sparks were blown, in a high wind, from one of these stumps on to the land of the respondent, and set fire to his grass, buildings and fences, and did considerable damage. The evidence established that burning off stubble is an ordinary farming operation, and was a method used by sixty or seventy per cent of the farmers in the district in which the appellant and the respondent had their lands. But it must be observed that February is a summer month, and the grass is then, usually, very dry and inflammable. The action was tried before a jury, which specifically found, in answer to a question put by the learned trial Judge, that the appellant was not guilty of any negligence which caused damage to the plaintiff. A verdict was thereupon entered for the appellant. Upon motion, however, to the Supreme Court of New South Wales to set aside this verdict, or for a new trial, the verdict was set aside and judgment was entered for the respondent for damages £569, which, as the jury found, the respondent had sustained by reason of the fire. An appeal is brought to this Court from that judgment.

The use of fire involved at common law the strictest responsibility, and decisions in modern times have brought that responsibility into line with what Blackburn J.[14] called "the general rule of common law ... given in Fletcher v. Rylands"[15] (Filliter v. Phippard[16]; Fletcher v. Rylands[17]; Jones v. Festiniog Railway Co.[18]; Black v. Christchurch Finance Co.[19]); "when a man brings or uses a thing of a dangerous nature on his own land, he must keep it in at his own peril; and is liable for the consequences if it escapes and does injury to his neighbour"[20]. Exceptions from this liability have been recognized, and the critical question is whether the appellant has established that the present case is within any such exception.

One contention was that the statute law of New South Wales had established the rule that liability for damage by fire now depended upon want of reasonable care and prudence in the use of fire, or in other words, upon negligence. It is unnecessary to go through all the legislation referred to by the learned counsel who argued the case for the appellant, because the argument in the end rests upon the Careless Use of Fire Act 1912, (No. 28) and the Bush Fires Act 1930 (No. 14). But those Acts do not limit the common law liability except in so far as they authorize the use of fire ((1912) No. 28, secs. 4 and 5), and even in those cases liability is maintained if damage or injury is occasioned by the reckless or negligent use of fire (Act 1912 (No. 28), sec. 9). It was conceded that the appellant could not bring himself within the terms of any authority to use fire given by those Acts.

The other ground of exception suggested from the rule of absolute liability was that the appellant's was an ordinary use of his land, or such a use as was proper for the general benefit of the community (Rickards v. Lothian[21]; Madras Railway Co. v. The Zemindar of Carvatenagarum[22]). The limits of this exception have never been very clearly defined. A man is entitled to the reasonable enjoyment of his land; he may build upon it, and in modern times it is but a reasonable enjoyment of his rights in respect of his land that his buildings should be equipped with fireplaces or apparatus for heating his premises, and with a water and gas supply and a sewerage system; such a user of land would be but a reasonable enjoyment of his rights in respect of his land. So, he may farm his lands, and conduct his farming operations in the ordinary manner. He may fertilize his land, and may make reasonable provision for watering his stock by means of dams, &c. The law relating to the legitimate enjoyment of lands must necessarily develop as conditions alter and methods improve. What may be regarded as a dangerous and extraordinary use of lands in one generation may well, in another, become but an ordinary and legitimate enjoyment of those lands. Indeed in some cases the question may become one of fact (Whinfield's Case[23]; Beven on Negligence, 4th ed. (1928), vol. i., p. 608). But burning off stubble, when it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger. And I cannot agree that such an operation is an ordinary or natural or reasonable use or enjoyment of land, even if sixty or seventy per cent—or all—of the farmers in the district in which the land is situate take the risk. Nor do I agree that such an operation involves any question whatever for a jury. The facts in the case were not in dispute, and on those facts the jury should have been directed, as a matter of law, that the appellant burnt off his stubble at his peril, and that his liability was independent of any negligence on his part.

[1] [1846] EngR 436; (1846) 15 M. & W. 244; 153 E.R. 840.

[2] (1926) 48 W.N. (N.S.W.) 25.

[3] (1926) 48 W.N. (N.S.W.), at p. 26.

[4] [1860] EngR 1082; (1860) 3 B. & S. 62, at p. 83; [1860] EngR 1082; 122 E.R. 25, at p. 33.

[5] (1868) L.R. 3 H.L., at pp. 338, 339.

[6] [1913] UKPC 1; (1913) A.C. 263, at p. 280.

[7] (1882) 8 V.L.R. (L.), at p. 28.

[8] (1902) 22 N.Z.L.R. 429, at p. 433.

[9] (1924) 4 D.L.R., at p. 513.

[10] (1846) 2 W.C.R. 448.

[11] (1882) 7 Ont. App. 145, at p. 161.

[12] (1894) A.C. 48.

[13] (1894) A.C., at p. 54.

[14] (1868) L.R. 3 Q.B., at p. 736.

[15] [1868] UKHL 1; (1868) L.R. 1 Ex. 265; L.R. 3 H.L. 330.

[16] [1847] EngR 999; (1847) 11 Q.B. 347; 116 E.R. 506.

[17] [1868] UKHL 1; (1868) L.R. 1 Ex. 265; L.R. 3 H.L. 330.

[18] (1868) L.R. 3 Q.B. 733.

[19] (1894) A C. 48.

[20] (1868) L.R. 3 Q.B., at p. 736.

[21] [1913] UKPC 1; (1913) A.C. 263.

[22] (1874) L.R. 1 Ind. App. 364; 30 L.T. 770.

[23] (1914) 18 C.L.R. at p. 620.

High Court of Australia

Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268 (19 December 1934)

HIGH COURT OF AUSTRALIA