iqau|g HIGH couRT 10:9:1924 Durack ~ Appellant (defendant) and Baker © Respondent (Plaintiff) > / i i Tuner | ISAACS: AG To: aa This is an action in which the appellant was sued by the rées- pendent for damages caused by a fire which had been lit on tle appellant's land, The action was framed in three ways - the fire was said to be unlawful because of omission +o comply with the Bush Fires Act 1902; then negligence was alleged by reason of various matters including these two - the appellant did not take any precautions to confine the fire to his own land and the appellant uuthorised the lighting and sanctioned the fire +o be 1it and to continue alight on his land under circumstances when it was highly dangerous to do so pecause of a strong wind then plowing, It is unnecessary to refer to the other instances of alleged omission, Then there was the third ground that the respondent was an injured person, The case was heard by His Honour the Chief Justice of Western Australia when apparently His Honour said he was not prepared to find negligmce and proceeded to determine the matter on the basis of Craig v Yurker (8 W,A.L.R 161) adopting the principle laid down in_Rylands v Fletcher. The learned Chief Justice came to some conclusions of fact which ware are not embodied in his judgment. But whet does appear are the findings that the fire which caused the injury to the respondent originated frou a stump which had been lit by Kefpilla by defendants (aypeilants) direction and that the fire proceeding from that stump ultimately reached respondent's land by the agency of a strong wind from the north west whibh a. carried it in the direction of the respondent's land. The appellant having /f ind ing of negligence ageinst hin chellenges the law in Craig vy Varker which is the subject matter of a great mass of authority and as indicated in Court the parties are raising the question whether burning off operation is always w pov tie cxiseion to confine which renders 6 man liable, If it were necessary i4 wovld be our bounden cuty to deal with that matter, It is quite certain that where there is negligence there is liability and here if the Chief Justice was not prepared to find negligence he left that undetermined and even if he had determined it the circumstances in this case are such thet we would have been aot perfect liberty to decide it for ourselves because it is not a question of having to accept the evidence on one side in preference to that on the other; the questicn here turne on the evidence of the uppellant hinself. : The salient facts are that in February and Merch the two hottest end driest months Kafp le was employed to burn off athe by the appellant - cone man to do the operation - He set fire twice to that stump whence the damage came, It was burning for weeks, He lit it for the second time about a fortnight before the fire troke out, Apparently it was left unwatched and unattended except that he renewed it, Certainly it was left unattended at n.ght because Kalfpille wes the only person who had anything to do with it: equally so during for the day/the re is no evisence that he gave it any attention, and then on harch 1Uth when the fire came he saw the stump was burning; it had got below thelevel of the ground end ! ne devoted no care to covering it up or protecting it as nt have done, He was working at some distance from this stump at the time the fire broke out and evidently he observed sone fire smoking and after a time he went up te 3. it. The fire had caught in some grass in defendant's (Appellauts} paddock but had uot then reached that of the plain- tiff (respondent) He made an attempt to stop it but was too Late, The wind which was a stronger wind than had been experience wea Guring that vummer but was nothing phenomenel was sufficient to arouse the slwsbering fire and cause the flame to spread, The result wag it travelled down a distance cf two miles and a half to the vicinity of respondent's house destroyed a good deal of his property and caused damage which has been assessed at ebout £700, : The only protection suggested was the fire break. It has been suggested it was quite sufficient to rely upon that fire break Negligence means #" absence of due care, Due care is the care whichis proper under the circumstances and must vary with those eiroun nees end when there is as was shown here valuable property the care which sheuld be taken whenlit is admittedly a naturally dangerous instrument is considerable,and I think it is perfectly clear that the mere existence of the break that was constructed was altogether insufficient and must have been con- sidered by any person properly viewing the. circunstances insufficient to guard against the risk, It is, as has been said very important to Australian Agricul tu that the use of fire should be carefully considered, T say nothing about the limite of that consideration but it is equelly clear that it is important to the australian Agriculturalist to bear in mi G& it is a factor which should ve carefully guarded and to Australia at large is a matter of considerable importance he should use the amount of care Gemanded of on men who use this very powerful instrument - a power for good ori - with the care which he is entitled to expect and which is not to be minimised, and in this case we think that the due amount of care was not PGa0 LEG , ae Negligence tierefore has been established and the judgment gheald ve sustained, We do not think it necessary to offer any OF the other points mentioned. I have epoken for my learned brother as well as for myself, The formal judgment will be - Appeal dismissed with costs.