McInnes v Wardle [1931] HCA 40

HIGH COURT (1931.

(HIGH COURT OF AUSTRALIA.)

McINNES eG ei i E F - 2 . APPELLANT; DEFENDANT, AND WARDLE 5 : : ? : E . RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

H.C. ov A, Fire—Damage caused by escape—Independent contractor—Fire lit to burn serub—

1931.

= MELBOURNE, Oct. 6, 7.

Sypney, Nov, 30.

Gavan Dufty CJ., Starke, Dixon, Evatt and McTiernan

Damage to neighbour's land—Lit during prohibited season—Liability of employer —Bush Fires Act 1913 (S.A.) (No. 1123), sec. 8.

'The appellant employed an independent contractor to fumigate rabbits on his land; in the course of doing so, the independent contractor, during @ prohibited season of the year, lit a fire, which was a usual and ordinary method used in the fumigation and destruction of rabbits. The fire spread to and on the neighbour's land and there caused damage.

Held, that the employer of the independent contractor was liable for the damage thus caused.

Black v. Christchurch Finance Co., (1894) A.C. 48, followed.

Decision of the Supreme Court of South Australia (Napier J.): Wardle v. McInnes, (1930) S.A.S.R. 450, affirmed.

Apprat from the Supreme Court of South Australia

The respondent, Michael Ernest Wardle, brought an action

against the appellant, Hugh Cameron MeInnes, claiming £807 for damage caused by fire which was lit upon the neighbouring land oceupied by the appellant. The fire was lit by MeLeay. an

independent contractor engaged by the appellant to fumigate the

45 O.L.R.] OF AUSTRALIA.

of the appellant. There was no evidence of any express direction or authority to burn, and under the Bush Fires Act 1913 of South Australia it was an offence for any person between 15th October and Ist of the following February to burn any scrub (which includes bracken fern) or light or maintain any fire with the intention of burning any scrub on any land. In December of 1925 McLeay lit fires on the land rented by McInnes to burn off patches of fern which impeded his work.