Supreme Court of New South Wales

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Bell v Scott [1828] NSWSC 44 (16 June 1828)

Last Updated: 12 October 1998

[trespass on the case - negligence - property damage, by fire - volenti non fit injuria - contributory negligence - causation]

This was an action of trespass on the case, brought by the plaintiff, to recover damages under the following circumstances.[1]

It appeared that the plaintiff and defendant, in the early part of the year 1825, were settlers on adjoining farms, in the district of Lower Minto. Some time in the month of February, in the same year, the defendant, being about ploughing some ground on his own farm, instead of ploughing in the stubble, resorted to a practice almost peculiar to this country, though, perhaps, it would be difficult to say why, namely, that of burning off, in the doing of which, owing to alleged carelessness on his part, the fire communicated with the wheat fields of the plaintiff, and consumed the entire crop of eleven acres, averaging from twelve to fifteen bushels an acre.

Evidence in support of the plaintiff's case having been gone into, it was stated by the defendant's Counsel, that, though an injury, without doubt, had been committed, for which an action would certainly lie, and though it was absolutely necessary that something should be done to discourage a practice so extremely dangerous, as that of burning off stubble, yet he contended, in the present case, the action was wrong brought, inasmuch as he should be able to prove, by the testimony of the son-in-law of the defendant, who had accidentally set fire to the stubble on the occasion alluded to, that the defendant was not near the spot at the time.

The learned Counsel also stated that he should be able to prove that the plaintiff's witnesses had over-rated the value of the crop destroyed, that he had been heard to say he would "make a good thing" of the accident, and that he never even attempted to lend the smallest assistance towards preventing the damage that had occurred. Injuria non fit volenti[2] was a recognized maxim of law, and if the Jury should be of opinion that he had made out the latter facts, even if they believed, after the testimony he would offer, that the defendant was the cause of the damage, he was, notwithstanding, entitled to their verdict.

A witness was then put into the box, who stated that he resided on the same farm with the defendant; that he was out ploughing a piece of ground adjoining the farm of the plaintiff, on the day laid in the declaration, and finding the ground hard, in consequence of the continued drought, he set fire to the stubble the flame from which, owing to a a [sic] high wind, spread in the direction of the plaintiff's wheat fields, in consequence of which measures were immediately taken to extinguish it, and, as was supposed, it was got completely under, when it again broke out in another place, and consumed the plaintiff's crop of wheat before its progress could be impeded. This witness also stated that the plaintiff's crop was very poor, and that he did not exert himself in assisting to get the fire under.

Another witness stated that he heard the plaintiff say, "he would make a bad crop pay for a good one."

The CHIEF JUSTICE, in summing up, told the Jury that the case was entirely one of evidence, and depended upon the credit they should give to the witnesses on either side. The balance of testimony, certainly, was in favour of the plaintiff, and if they believed the witnesses brought forward in his behalf, that the defendant was the person who actually set fire to the stubble, they would go on to consider whether a proper caution had been used in this transaction, and if they should be of opinion that there was not, then to take into consideration the amount of damage the plaintiff had sustained. It was well known that the practice of burning off stubble prevailed very much in this Colony; and doubtless it was open for a farmer to do so if he thought fit, on his own land, but, at the same time, it was a maxim of law, that a man was not to use his own to the injury of another, if he did, he then became liable for the consequences.

The Jury found a verdict for the plaintiff, and assessed damages at £35.[3]

Counsel for the plaintiff, Mr. Norton; for the defendant, Mr. Wentworth.

[2] Volenti non fit injuria, there can be no injury to the willing.

[3] The Australian, 18 June 1828, concluded its report as follows: "For this, the sufferer brought his action, and the Court having received evidence as to the extent of the loss sustained, gave a verdict in favor of the plaintiff to the full amount, with costs - the Court hoping that by this verdict, settlers and other persons who are in the habit of setting fire to brush, or material on their own land, which certainly they have an unquestionable right to do, whenever they think proper, would take care on the other hand, that it was not done to the detriment of a neighbour, as in such case they would become responsible for the loss that might be sustained thereby, independent of the consequences attendant on a law suit, by having to pay law expenses."