Hargrave v Goldman [1963] HCA 56

High Court of Australia Taylor, Windeyer and Owen JJ. Hargrave v Goldman [1963] HCA 56

ORDER Appeal allowed with costs. Order and judgment of the Supreme Court of Western Australia of 9th January 1963 set aside. Case remitted to the Supreme Court. Costs of the parties up to the time of the entry of the judgment appealed from to abide the order of the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 22 Taylor and Owen JJ.

This is an appeal by two parties in a consolidated action from an order of the Supreme Court by which the claim of the appellants in respect of fire damage to their property was dismissed: Hargrave v. Goldman [9] . The facts are that the respondent was the owner and occupier of a lightly developed grazing property, some six hundred acres in extent, near Gidgegannup in Western Australia. On Saturday 25th February 1961 there was an electrical storm in this area and a tall tree with a branchy-top, which stood about the centre of the respondent's property and relatively close to his dwelling, was struck by lightning between 5 p.m. and 6 p.m. It was observed shortly afterwards that a fork of the tree, more than eighty feet above the ground, was on fire. The tree was about two hundred and fifty yards from the western boundary of the respondent's property and a somewhat lesser distance from the eastern boundary. On either side the paddocks were sparsely timbered but they contained a quantity of dry grass and dead tree tops. It was impossible for the respondent to extinguish the fire whilst the tree was standing and early on the following morning he telephoned the fire control officer for the district—a local farmer appointed pursuant to the Bush Fires Act, 1954-1958 W.A.—and asked that a "tree faller" be sent out to cut the tree down. This was done about midday but, in the meantime, the respondent had by means of a tractor and dozer blade cleared the area in the vicinity of the tree of all readily combustible material. In addition, he used a mounted six hundred gallon tank of water to spray the surrounding area so as to minimize the risk of the fire escaping.